EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 16, 0000
Xxxxx
XXXXXXXX FABRICATED PRODUCTS, INC.
EURAMAX HOLDINGS LIMITED
EURAMAX EUROPE B.V.
EURAMAX NETHERLANDS B.V.
as Borrowers
-- ---------
and
EURAMAX INTERNATIONAL PLC
AMERIMAX HOLDINGS, INC.
EURAMAX EUROPEAN HOLDINGS PLC
EURAMAX EUROPEAN HOLDINGS, B.V.
EURAMAX EUROPE LIMITED
THE OPERATING COMPANY SUBSIDIARIES PARTIES HERETO
as other Loan Parties
-- ----- ---- -------
and
THE LENDERS AND ISSUER PARTY HERETO
and
BANQUE PARIBAS
as Agent
-- -----
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS......................... 4
1.1. Defined Terms................................................. 4
1.2. Computation of Time Periods................................... 79
1.3. Accounting Terms.............................................. 79
1.4. Certain Terms................................................. 79
1.5. Currency Equivalents Generally................................ 80
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS........................... 80
2.1. The Revolving Credit Loans.................................... 80
2.2. The Term Loans................................................ 82
2.3. Making Loans.................................................. 83
2.4. Fees.......................................................... 86
2.5. Reduction and Termination of the Commitments.................. 87
2.6. Repayment..................................................... 88
2.7. Prepayments................................................... 92
2.8. Conversion/Continuation Option................................ 97
2.9. Interest...................................................... 98
2.10. Interest Rate Determination and Protection.................... 101
2.11. Increased Costs............................................... 102
2.12. Illegality.................................................... 103
2.13. Capital Adequacy.............................................. 104
2.14. Payments and Computations..................................... 104
2.15. Taxes......................................................... 107
2.16. Sharing of Payments, Etc...................................... 109
2.17. Currency Equivalents.......................................... 110
2.18. Joint and Several Liability................................... 111
2.19. Letter of Credit Facility..................................... 112
2.20. Swing Loans................................................... 118
2.21 Covenant to Pay............................................... 121
ARTICLE III
CONDITIONS OF EFFECTIVENESS
OF THIS AGREEMENT AND OF LENDING......................... 122
3.1. Conditions Precedent to Effectiveness of this
Agreement, the Making of the Initial Loans and
i
SECTION PAGE
------- ----
the Issuance of Letters of Credit............................. 122
3.2. Additional Conditions Precedent to Effectiveness
of this Agreement, the Making of the Initial
Loans and the Issuance of Letters of Credit................... 133
3.3. Conditions Precedent to the Making of Each Loan
and Each Issuance of any Letter of Credit..................... 134
ii
SECTION PAGE
------- ----
ARTICLE IV
REPRESENTATIONS AND WARRANTIES........................... 135
4.1. Corporate Existence; Compliance with Law...................... 135
4.2. Corporate Power; Authorization; Enforceable
Obligations................................................... 136
4.3. Taxes......................................................... 137
4.4. Full Disclosure............................................... 138
4.5. Financial Matters............................................. 138
4.6. Litigation.................................................... 139
4.7. Margin Regulations............................................ 139
4.8. Ownership; Subsidiaries....................................... 139
4.9. ERISA......................................................... 141
4.10. Liens; Indebtedness........................................... 141
4.11. Restricted Payments........................................... 142
4.12. No Burdensome Restrictions; No Defaults;
Contractual Obligations....................................... 142
4.13. No Investments................................................ 143
4.14. Government Regulation......................................... 143
4.15. Insurance..................................................... 144
4.16. Labor Matters................................................. 144
4.17. Force Majeure................................................. 145
4.18. Use of Proceeds of Loans and Use of Letters of
Credit........................................................ 145
4.19. Environmental Protection...................................... 146
4.20. Related Documents............................................. 148
4.21. Intellectual Property......................................... 149
4.22. Real Property................................................. 150
ARTICLE V
FINANCIAL COVENANTS...................................... 152
5.1. Maximum Leverage Ratio........................................ 152
5.2. Fixed Charge Coverage Ratio................................... 153
5.3. Capital Expenditures.......................................... 154
5.4. Interest Coverage Ratio....................................... 154
5.5. Minimum EBITDA................................................ 155
ARTICLE VI
AFFIRMATIVE COVENANTS.................................... 156
6.1. Compliance with Laws, Etc. ................................... 157
6.2. Conduct of Business........................................... 157
6.3. Payment of Taxes, Etc. ....................................... 157
6.4. Maintenance of Insurance...................................... 158
iii
SECTION PAGE
------- ----
6.5. Preservation of Corporate Existence, Etc. .................... 158
6.6. Access........................................................ 158
6.7. Keeping of Books.............................................. 159
6.8. Maintenance of Properties, Etc. .............................. 159
6.9. Performance and Compliance with Other Covenants............... 159
6.10. Application of Proceeds....................................... 159
6.11. Financial Statements.......................................... 159
6.12. Reporting Requirements........................................ 162
6.13. Leases........................................................ 166
6.14. New Real Estate............................................... 168
6.15. Employee Plans................................................ 168
6.16. Borrowing Base Determination.................................. 168
6.17. Fiscal Year................................................... 169
6.18. Environmental Matters......................................... 170
6.19. Certain Additional Covenants.................................. 171
ARTICLE VII
NEGATIVE COVENANTS....................................... 171
7.1. Liens, Etc. .................................................. 171
7.2. Indebtedness.................................................. 174
7.3. Lease Obligations............................................. 176
7.4. Restricted Payments........................................... 177
7.5. Mergers, Stock Issuances, Asset Sales, Etc. .................. 179
7.6. Investments................................................... 181
7.7. Change in Nature of Business or in Capital
Structure..................................................... 182
7.8. Modification of Related Documents and Material
Agreements.................................................... 183
7.9. Accounting Changes............................................ 183
7.10. Transactions with Affiliates.................................. 184
7.11. Adverse or Speculative Transactions........................... 184
7.12. Environmental Matters......................................... 185
7.13. Additional Richmond Company, Euramax, French
Holdings and Foreign Holding Company Provisions............... 185
ARTICLE VIII
EVENTS OF DEFAULT AND CASH COLLATERAL.................... 186
8.1. Events of Default............................................. 186
8.2. Remedies...................................................... 190
8.3. Implementation of Reallocation................................ 191
8.4. Actions in Respect of Letters of Credit....................... 191
ARTICLE IX
iv
SECTION PAGE
------- ----
THE AGENT................................................ 193
9.1. Authorization and Action...................................... 193
9.2. Agent's Reliance, Etc. ....................................... 194
9.3. The Agent and its Affiliates.................................. 195
9.4. Lender Credit Decision........................................ 195
9.5. Indemnification............................................... 195
9.6. Successor Agents.............................................. 196
9.7 U.K. Documents................................................ 197
ARTICLE X
MISCELLANEOUS............................................ 197
10.1. Amendments, Etc. ............................................ 197
10.2. Notices, Etc................................................. 198
10.3. No Waiver; Remedies.......................................... 199
10.4. Costs; Expenses; Indemnities................................. 199
10.5. Right of Set-off............................................. 201
10.6. Binding Effect............................................... 202
10.7. Assignments and Participations............................... 203
10.8. Governing Law; Severability.................................. 207
10.9. Submission to Jurisdiction; Service of Process;
Judgment..................................................... 207
10.10. Section Titles............................................... 209
10.11. Execution in Counterparts.................................... 209
10.12. Entire Agreement............................................. 210
10.13. Confidentiality.............................................. 210
10.14. Waiver of Jury Trial......................................... 210
v
SCHEDULES
Schedule I - Commitments
Schedule I-A - Existing Term Loans, Existing Revolving
Credit Loans and Existing Revolving
Credit Commitments
Schedule I-B - Effective Date Assignments
Schedule II - Applicable Sublimits
Schedule III - Applicable Lending Offices and Notice Addresses of
Lenders
Schedule IV - Notice Addresses of Loan Parties
Schedule V - Intercompany Notes
Schedule VI - Projections
Schedule VII - Environmental Matters
Schedule 3.1(s)-1 - Costs
Schedule 3.1(s)-2 - Existing Debt to be Repaid and Credit
Lines and Commitments to be Terminated
Schedule 4.3 - Taxes
Schedule 4.6 - Litigation
Schedule 4.8 - Subsidiaries
Schedule 4.9 - ERISA
Schedule 4.16 - Labor Matters
Schedule 4.19 - Environmental Protection
Schedule 4.22(a) - Owned Real Estate
Schedule 4.22(b) - Leases
Schedule 7.1 - Existing Liens
vi
Schedule 7.2(a) - Permitted Existing Indebtedness
vii
EXHIBITS
Exhibit A-1 Form of Dutch Company Revolving Credit
Note
Exhibit A-2 Form of Dutch Operating Co. Revolving Credit
Note
Exhibit A-3 Form of U.K. Operating Co. Revolving Credit
Note
Exhibit A-4 Form of U.S. Operating Co. Revolving Credit
Note
Exhibit A-5 Form of Dutch Company Term Note
Exhibit A-6 Form of U.S. Dollar Term B Note
Exhibit A-7 Form of U.K. Operating Co. Term Note
Exhibit A-8 Form of U.S. Dollar Term A Note
Exhibit A-9 Form of U.S. Dollar Term C Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion or Continuation
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Domestic Mortgage
Exhibit F Form of Domestic Security Agreement
Exhibit G Form of Domestic Subsidiary Guaranty
Exhibit H Form of U.S. Holdings Guaranty
Exhibit I Form of U.S. Holdings Pledge Agreement
Exhibit J Form of U.S. Operating Co. Guaranty
Exhibit K Form of U.S. Operating Co. Pledge Agreement
Exhibit L Form of Euramax Assignment Agreement
Exhibit M Form of Euramax Stock (U.S.) and Debt Pledge
viii
Agreement
Exhibit N Form of Borrowing Base Certificate
Exhibit O Form of Letter of Process Agent
Exhibit P Form of Opinion of Xxxxxxxx & Xxxxx
Exhibit Q Section 2.15(f) Certificate of a Lender
Exhibit R Form of Letter of Credit Request
Exhibit S Form of Building Products Pledge Agreement
Exhibit T Form of Agency Agreement
Exhibit U Form of Domestic Amendatory Agreement
Exhibit V Form of Fabral Holdings Pledge Agreement
Exhibit W Form of U.K. Consent Agreement
ix
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 16, 1997,
among EURAMAX INTERNATIONAL PLC, a company organized under the laws of England
and Wales ("Euramax"); EURAMAX EUROPEAN HOLDINGS PLC, a company organized under
the laws of England and Wales ("U.K. Holdings") and a wholly owned, direct
subsidiary of Euramax; EURAMAX EUROPEAN HOLDINGS, B.V., a company organized
under the laws of the Netherlands ("Dutch Holdings") and a wholly owned, direct
subsidiary of Euramax; AMERIMAX HOLDINGS, INC., a Delaware corporation ("U.S.
Holdings") and a wholly owned, direct subsidiary of Euramax; EURAMAX EUROPE
LIMITED, a company organized under the laws of England and Wales ("U.K.
Company") and a wholly owned, direct subsidiary of U.K. Holdings; EURAMAX
NETHERLANDS B.V., a company organized under the laws of the Netherlands ("Dutch
Company") and a wholly owned, direct subsidiary of Dutch Holdings; EURAMAX
HOLDINGS LIMITED (formerly Alumax Holdings Limited), a company organized under
the laws of England and Wales ("U.K. Operating Co.") and a wholly owned, direct
subsidiary of U.K. Company; EURAMAX EUROPE B.V. (formerly Alumax Europe B.V.), a
company organized under the laws of the Netherlands ("Dutch Operating Co.") and
a wholly owned, direct subsidiary of Dutch Company; AMERIMAX FABRICATED
PRODUCTS, INC. (formerly Alumax Fabricated Products, Inc.), a Delaware
corporation ("U.S. Operating Co.") and a wholly owned, direct subsidiary of U.S.
Holdings; the Operating Company Subsidiaries (as defined below); Amerimax
Richmond Company (formerly Xxxxxxx Door Products, Inc., which was formerly
Alumax Door Products, Inc.), an Indiana corporation and a direct, wholly owned
Subsidiary of U.S. Operating Co. ("Richmond Company"); the financial
institutions listed on the signature pages hereof (each individually a "Lender"
and collectively the "Lenders"); BANQUE PARIBAS, as the issuer (in such
capacity, together with its successors and assigns, the "Issuer") of the Letters
of Credit (as defined below); and BANQUE PARIBAS ("Paribas"), as agent for the
Lenders and the Issuer (in such capacity, together with its successors and
assigns, the "Agent").
PRELIMINARY STATEMENTS
1. (a) Dutch Company, U.K. Operating Co., Dutch Operating Co., U.S.
Operating Co. (Dutch Company, U.K. Operating Co., Dutch Operating Co. and U.S.
Operating Co. being individually a "Borrower" and collectively the "Borrowers"),
Euramax, U.K. Holdings, Dutch Holdings, U.S. Holdings, U.K. Company, Richmond
Company and the Operating Company Subsidiaries party hereto and defined in
Section 1.1 of this Agreement (the entities referred to in this clause (a) being
the "Existing Credit Parties"), (b) the Lenders referred to therein (the
"Existing Lenders"), and (c) Paribas, as the Issuer referred to therein
1
and as the Agent referred to therein (the "Existing Issuer" and "Existing
Agent", respectively), are parties to a Credit Agreement, dated as of
September 25, 1996, as amended as of March 28, 1997 (as so amended, the
"Existing Credit Agreement").
2. Pursuant to the Existing Credit Agreement, (a) U.S. Dollar Term
Loans (said term and each capitalized term used below in this paragraph 2 being
used herein as defined in the Existing Credit Agreement unless otherwise defined
in this paragraph 2), U.K. Operating Co. Term Loans and Dutch Company Term Loans
in the principal amounts set forth on Schedule I-A hereto are outstanding on the
date hereof (the Loans referred to in this clause (a) being collectively the
"Existing Term Loans"); (b) Transaction Revolving Credit Loans in the principal
amounts set forth on Schedule I-A hereto are outstanding on the date hereof (the
"Existing Transaction Revolving Credit Loans"); (c) General Purpose Revolving
Credit Loans are from time to time outstanding (said Loans, together with the
Existing Transaction Revolving Credit Loans, being the "Existing Revolving
Credit Loans"); (d) Swing Loans are from time to time outstanding (the "Existing
Swing Loans"); and (e) each Revolving Credit Lender has agreed to make further
General Purpose Revolving Credit Loans from time to time and to participate in
Existing Swing Loans and in Letters of Credit issued from time to time (the
Letters of Credit outstanding on the date hereof being the "Existing Letters of
Credit") in an aggregate amount not exceeding such Revolving Credit Lender's
unused Revolving Credit Commitment, as set forth on Schedule I-A hereto (the
Revolving Credit Commitments of all Revolving Credit Lenders, to the extent
unused on the date hereof, being the "Existing Revolving Credit Commitments"),
or, if less, the amount provided for in Sections 2.1, 2.19 and 2.20 of the
Existing Credit Agreement (the Existing Term Loans, Existing Revolving Credit
Loans and Existing Swing Loans being collectively the "Existing Loans" and the
Notes evidencing any of the Existing Loans or Existing Revolving Credit
Commitments being the "Existing Notes").
3. U.S. Operating Co. will enter into the Fabral Purchase Documents
(as defined below) on the Effective Date.
4. The Borrowers and the other Existing Credit Parties have
requested that the Existing Lenders, the Existing Issuer and the Existing Agent
amend and restate the Existing Credit Agreement in order to, among other things,
(a) permit the Fabral Purchase (as defined below) pursuant to the Fabral
Purchase Agreement (as defined below) and (b) increase the Revolving Credit
Commitments and provide for the Term Loan Commitments (as defined below) in
order to finance the Fabral Purchase and the Costs (as defined below), and the
Existing Lenders party hereto (the "Continuing Lenders"), the Existing Issuer
and the Existing Agent are willing to so amend and restate the Existing Credit
Agreement upon the terms and conditions hereinafter set forth.
2
5. The Existing Credit Parties, the Continuing Lenders, the Existing
Issuer and the Existing Agent have agreed that, effective on and as of the
Effective Date (as defined below), each of Amerimax Laminated Products, Inc.
(F/K/A JTJ Laminating, Inc.), an Indiana corporation and a wholly owned
subsidiary of Building Products ("Laminated Products"), and Gentek Holdings,
Inc., a Delaware corporation which will change its name to Fabral Holdings, Inc.
on or prior to the Effective Date referred to below ("Fabral Holdings") which
will be a direct, wholly owned subsidiary of U.S. Operating Co. upon the
consummation of the Fabral Purchase, and its direct, wholly owned subsidiary,
Gentek Building Products, Inc., a Delaware corporation which will change its
name to Fabral, Inc. on or prior to the Effective Date ("Fabral, Inc."), shall
be a party hereto.
6. Each Existing Lender referred to in Part A of Schedule I-B and
each Continuing Lender referred to in Part B of Schedule I-B (each such Existing
Lender and each such Continuing Lender being an "Assignor Lender") has notified
the Existing Agent that it has agreed to sell and assign, effective immediately
prior to the effectiveness of this Agreement pursuant to Section 10.6, all or a
portion of the outstanding principal amount of its Existing Loans, Existing
Revolving Credit Commitment and participations in Existing Letters of Credit and
Existing Swing Loans to the Lenders party hereto who have agreed with such
Assignor Lenders to purchase the same, effective immediately prior to the
effectiveness of this Agreement pursuant to Section 10.6 (such Lenders who have
agreed to make such purchases each being an "Assignee Lender"), each of which
assignments (each an "Effective Date Assignment") shall be made pursuant to an
Assignment and Acceptance delivered pursuant to, and as defined in, the Existing
Credit Agreement (an "Existing Lender Assignment Agreement"), upon the
consummation of which Effective Date Assignments, each Existing Lender who is
not a Continuing Lender shall cease to be a Lender hereunder.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, subject to the terms and conditions hereinafter set
forth, the parties hereto hereby agree that, effective as of the Effective Date,
the Existing Credit Agreement is hereby amended and restated in its entirety to
read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following
3
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Accounts" has the meaning assigned to that term in the Uniform
Commercial Code as in effect in the State of New York.
"Additional Coated Products B.V. Security Agreement" means the
Security Agreement, dated as of July 16, 1997, executed by Coated Products B.V.
and the Agent, as the same may be amended, supplemented or otherwise modified
from time to time, in order to ensure that the Secured Parties shall have a Lien
in the Collateral covered by the Dutch Security Agreement, dated as of September
25, 1996, executed by Coated Products B.V. and the Agent, as security for all
"Guarantied Obligations" of Coated Products B.V. (as defined in the Existing
Credit Agreement) and to secure the Guarantied Obligations of Coated Products
B.V. in respect of the Revolving Credit Loans that are in excess of the
aggregate Existing Revolving Credit Loans plus the Existing Revolving Credit
Commitments.
"Additional Dutch Collateral Documents" means the Additional Dutch
Company Pledge Agreement, the Additional Dutch Holdings Stock and Debt Pledge
Agreement, the Additional Dutch Mortgage, the Additional Dutch Operating Co.
Pledge Agreement, the Additional Dutch Operating Co. Security Agreement and the
Additional Coated Products B.V. Security Agreement, each governed by the laws of
the Netherlands.
"Additional Dutch Company Pledge Agreement" means the pledge
agreement, dated as of July 16, 1997, executed by Dutch Company and the Agent
and acknowledged by Dutch Operating Co., as said agreement may be amended,
supplemented or otherwise modified from time to time, in order to ensure that
the Secured Parties shall have a Lien in the Collateral covered by the Dutch
Company Pledge Agreement as security for the "Company Obligations" and the
"Guarantied Obligations" of Dutch Company (as such terms are defined in the
Existing Credit Agreement) and to secure the Company Obligations and the
Guarantied Obligations of Dutch Company in respect of Revolving Credit Loans
that are in excess of the aggregate Existing Revolving Credit Loans plus
Existing Revolving Credit Commitments.
"Additional Dutch Holdings Stock and Debt Pledge Agreement" means the
pledge agreement, dated as of July 16, 1997, executed by Dutch Holdings and the
Agent and acknowledged by Dutch Company, as such agreement may be amended,
supplemented or otherwise modified from time to time, in order to ensure that
the Secured Parties shall have a Lien in the Collateral covered by the Dutch
Holdings Stock and Debt Agreement as security for all "Guarantied Obligations"
of Dutch Holdings (as defined in the Existing
4
Credit Agreement) and to secure Dutch Holdings' Guarantied Obligations in
respect of Revolving Credit Loans that are in excess of the aggregate of the
Existing Revolving Credit Loans plus the Existing Revolving Credit
Commitments.
"Additional Dutch Mortgage" means the mortgage, dated as of July 16,
1997, between Coated Products B.V. and the Agent, as such mortgage may be
amended, supplemented or otherwise modified from time to time, in order to
ensure that the Secured Parties shall have a Lien in the Collateral covered by
the Dutch Mortgage as security for all "Guaranteed Obligations" of Coated
Products B.V. and to secure the Guarantied Obligations of Coated Products B.V.
in respect of Revolving Credit Loans that are in excess of the aggregate of the
Existing Revolving Credit Loans plus the Existing Revolving Credit Commitments.
"Additional Dutch Operating Co. Pledge Agreement" means the Pledge
Agreement, dated as of July 16, 1997, executed by Dutch Operating Co. and the
Agent and acknowledged by Coated Products B.V., in order to ensure that the
Secured Parties shall have a Lien in the Collateral covered by the Dutch
Operating Co. Pledge Agreement as security for the "Dutch Operating Co.
Obligations" and all "Guarantied Obligations" of Dutch Operating Co. (as such
terms are defined in the Exiting Credit Agreement) and to secure the Dutch
Operating Co. Obligations and all Guarantied Obligations of Dutch Operating Co.
in respect of Revolving Credit Loans that are in excess of the aggregate of the
Existing Revolving Credit Loans plus the Existing Revolving Credit Commitments.
"Additional Dutch Operating Co. Security Agreement" means the Security
Agreement, dated as of July 16, 1997, executed by Dutch Operating Co. and the
Agent, as the same may be amended, supplemented or otherwise modified from time
to time, in order to ensure that the Secured Parties shall have a Lien in the
Collateral covered by the Security Agreement, dated as of September 25, 1996,
executed by Dutch Operating Co. and the Agent, as security for the "Dutch
Operating Co. Obligations" and all "Guarantied Obligations" of Dutch Operating
Co. (as such terms are defined in the Existing Credit Agreement) and to secure
the Dutch Operating Co. Obligations and all Guarantied Obligations of Dutch
Operating Co. in respect of Revolving Credit Loans that are in excess of the
aggregate of the Existing Revolving Credit Loans plus the Existing Revolving
Credit Commitments.
"Additional Euramax Deed of Pledge" means the Deed of Pledge, dated as
of July 16, 1997, executed by Euramax and the Agent, as such document may be
amended, supplemented or otherwise modified from time to time, in order to
ensure that the Secured Parties shall have a Lien in the
5
Collateral covered by the Euramax Deed of Pledge as security for all
"Guarantied Obligations" of Euramax (as defined in the Existing Credit
Agreement) and to secure the Guarantied Obligations of Euramax in respect of
Revolving Credit Loans that are in excess of the aggregate of the Existing
Revolving Credit Loans plus the Existing Revolving Credit Commitments,
provided that only 65% of the Stock of Dutch Holdings shall secure the
Excluded U.S. Liabilities.
"Additional Term Loans" means, as to any Lender, the U.S. Dollar Term
A Loan, if any, of such Lender and the U.S. Dollar Term C Loan, if any, of such
Lender.
"Affiliate" means, as to any Person, any Subsidiary of such Person and
any other Person which, directly or indirectly, controls, is controlled by or is
under common control with such Person and includes each officer or director or
general partner of such Person, and each Person who is the beneficial owner of
10% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency Agreement" means an agreement, in substantially the form of
Exhibit T, executed by Paribas, as the U.K. Trustee and the Agent, and one or
more Currency Swap Parties, as such agreement may be amended, supplemented or
otherwise modified from time to time, pursuant to which each such Currency Swap
Party shall appoint the Agent and the U.K. Trustee to act on such Currency Swap
Party's behalf under the Guaranties and Collateral Documents and agree to the
other matters provided for therein.
"Agreement" means this Amended and Restated Credit Agreement, together
with all Exhibits and Schedules hereto, as the same may be further amended,
supplemented or otherwise modified from time to time.
"Alternative Currency" means either British Currency or Dutch
Currency.
"Alumax" means Alumax Inc., a Delaware corporation.
"Applicable Base Rate Margin" means (a) 1.75% in the case of all Loans
other than the U.S. Dollar Term B Loans and the U.S. Dollar Term C Loans, and
(b) 2.25% in the case of the U.S. Dollar Term B Loans and the U.S. Dollar Term C
Loans.
"Applicable Eurocurrency Margin" means (a) 2.75% in the case of all
Loans other than the U.S. Dollar Term B Loans and the U.S. Dollar Term C
6
Loans, and (b) 3.25% in the case of the U.S. Dollar Term B Loans and the U.S.
Dollar Term C Loans.
"Applicable Governing Law" means (i) with respect to the Euramax Stock
(U.K.) Pledge Agreement, the Euramax Guaranty, the U.K. Collateral Documents and
the U.K. Guaranties, the laws of England and Wales; (ii) with respect to the
Euramax Deed of Pledge, the Additional Euramax Deed of Pledge and the Dutch
Collateral Documents, the laws of the Netherlands; (iii) with respect to the
Domestic Collateral Documents, the Domestic Guaranties, the Domestic Amendatory
Agreement, the Dutch Guaranties and the U.K. Consent Agreement, the laws of a
state within the United States of America, as specified therein; and (iv) with
respect to the Euramax Nantissement and, the Dutch Holdings Nantissement, the
laws of the Republic of France.
"Applicable Lending Office" means, with respect to each Lender and the
Issuer, (a) in the case of any Lender, its Domestic Lending Office in the case
of a Base Rate Loan and its Eurocurrency Lending Office in the case of a
Eurocurrency Loan, and (b) in the case of the Issuer, its Domestic Lending
Office in the case of Letters of Credit issued for the account of U.S. Operating
Co. and its Eurocurrency Lending Office in the case of Letters of Credit issued
for the account of Dutch Operating Co. or U.K. Operating Co., in each case as
set forth on Schedule III.
"Applicable Sublimit" means, as to each Transaction Revolving Credit
Loan Borrower, (a) in the case of the Existing Transaction Revolving Credit
Loans, the amount set forth opposite such Borrower's name on Schedule II and
means, as to all Transaction Revolving Credit Loan Borrowers, $80,000,000, and
(b) as to all other Transaction Revolving Credit Loans, $35,000,000.
"ASP Corp." means ASP Acquisition Corp., a Kentucky corporation.
"ASP Note" means the promissory note of ASP Corp. payable to the order
of U.S. Operating Co., issued on June 26, 1997, in a principal amount of
$500,000, payable in 60 substantially equal monthly installments, with a final
maturity date of the fifth year anniversary date of the date of issuance, and
accruing interest a 9.25% per annum, payable monthly in arrears until said note
is paid in full, which note is subordinated pursuant to its terms to all
Indebtedness of ASP Corp. incurred to finance its purchase of the Stock of
Specialty Products on June 26, 1997 from U.S. Operating Co., and the payments to
U.S. Operating Co. under which note will not be permitted (pursuant to the terms
of said note) during the occurrence and continuance of any default under such
Indebtedness of ASP Corp.
7
"Asset Purchase Agreement" means the Asset Purchase Agreement, in
substantially the form attached to the Prior Purchase Agreement, between Alumax
Aluminum Corporation, a Delaware corporation wholly owned by Alumax, and
Amerimax Home Products, Inc., a Delaware corporation (F/K/A Euramax Home
Products, Inc.) and now a wholly owned Subsidiary of U.S. Operating Co.
"Asset Sale" means (a) any Disposition except (i) the sale by French
Operating Co. or a Subsidiary thereof or by any Operating Company or Operating
Company Subsidiary of inventory in the ordinary course of business or which has
become obsolete, excess, slow moving or damaged, or equipment or motor vehicles
which have become obsolete, excess, damaged or slow moving or are replaced or
traded in or up in the ordinary course of business, (ii) the transfer by
Richmond Company of its assets to U.S. Operating Co. or an Operating Company
Subsidiary thereof and (iii) leases or sales of personal property (including
sales, leases or licenses of property of the type referred to in the definition
of Intellectual Property in the Domestic Security Agreements) (A) by French
Operating Co. to a Subsidiary thereof or to an Operating Company or Operating
Company Subsidiary or by a Subsidiary of French Operating Co. to French
Operating Co. or to an Operating Company or Operating Company Subsidiary or (B)
by any Operating Company or Operating Company Subsidiary to any Operating
Company or Operating Company Subsidiary, or by French Operating Co. to a
Subsidiary thereof or by a Subsidiary thereof to French Operating Co., provided
that no such sale or lease, shall be made by U.S. Operating Co. to any such
Person other than to its Subsidiaries or by any such Subsidiaries other than to
U.S. Operating Co. or another of its Subsidiaries, and (b) any "Asset
Disposition" as defined in the Senior Subordinated Indenture.
"Asset Sale Proceeds" means (a) payments received by any Loan Party
or any of its Subsidiaries (including, without limitation, any payments
received by way of deferred payment of principal pursuant to a note or
receivable or otherwise, but only as and when received) from any Asset Sale
(after repayment of any Indebtedness other than the Loans secured by the
asset subject of such Asset Sale to the extent such Indebtedness is permitted
hereunder and does not constitute Senior Subordinated Notes or Intercompany
Notes ("Allowed Debt")), in each case net of the amount of (i) brokers' and
advisors' fees and commissions payable in connection with such Asset Sale,
other than to an Affiliate of any Loan Party, (ii) all taxes (including all
foreign, federal, state and local taxes) payable as a direct consequence of
such Asset Sale (or such deferred payment), including, without limitation, in
connection with the payment of a dividend or the making of a distribution by
a Subsidiary of any Loan Party of such payments to such Loan Party or any
other Subsidiary of such Loan Party (including, without limitation, taxes
withheld in connection with the repatriation of such proceeds), net of any
tax benefits derived in respect of such
8
dividend or distribution, (iii) the fees and expenses attributable to such
Asset Sale, to the extent not included in clause (i) except to the extent
payable to any Affiliate of any Loan Party, and (iv) any amount required to
be paid to any Person (other than any Loan Party and any of its Subsidiaries)
owning a beneficial interest in the property or assets sold; (b) any award of
compensation for any asset or property or group thereof taken by condemnation
or eminent domain and insurance proceeds for the loss of or damage to any
asset or property if such award or proceeds equals or exceeds $500,000 in the
aggregate for all such occurrences and within 120 days after the receipt
thereof replacement or repair of such asset or property has not commenced (or
binding commitments have not been entered into therefor), except that in the
event that at any time such replacement or repair is abandoned or is
otherwise discontinued or is not diligently pursued, the remaining award or
proceeds, as the case may be, shall constitute Asset Sale Proceeds at such
time; and (c) notwithstanding anything to the contrary contained in clauses
(a) or (b) above or in any other provision of this Agreement or any other
Loan Document, all payments received by any Loan Party or any of its
Subsidiaries from any Disposition, any issuance of Indebtedness or any
issuance of equity, in each case to the extent the same would be required to
be applied to any Senior Subordinated Notes or any other Indebtedness, other
than, in the case of any Disposition, any Allowed Debt and, in the case of
any Indebtedness issued for the purpose of refinancing other Indebtedness,
any refinancing of such other Indebtedness to the extent such refinancing is
permitted by Section 7.2.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit D.
"Available Credit" means, at any time with respect to the Revolving
Credit Loans, the Swing Loans and the Letters of Credit, an amount equal to (a)
the lower of (i) the then effective Revolving Credit Commitments of the
Revolving Credit Lenders and (ii) the Borrowing Base at such time, minus (b) the
aggregate principal amount of the Revolving Credit Loans and Swing Loans
outstanding at such time and the Letter of Credit Obligations outstanding at
such time.
"Available U.S. Credit" means, with respect to Revolving Credit Loans
requested to be made at any time by U.S. Operating Co., Swing Loans requested to
be made at any time by U.S. Operating Co. and Letters of Credit issued for the
account of U.S. Operating Co. at any time, an amount equal to (a) the lower of
(i) the then effective Revolving Credit Commitments of the Revolving Credit
Lenders and (ii) the U.S. Borrowing Base at such time minus (b) the aggregate
principal amount of the Revolving Credit Loans and Swing Loans outstanding at
such time and the Letter of Credit Obligations outstanding at such time.
9
"Bankruptcy Event" has the meaning specified in Section 8.1.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the higher of:
(a) the rate of interest announced publicly by The Chase Manhattan
Bank (or any successor thereto) in New York, New York, from time to time, as its
Prime Commercial Lending Rate; and
(b) the sum (adjusted to the nearest 1/4 of one percent or, if there
is no nearest 1/4 of one percent, to the next higher 1/4 of one percent) of
(i) 1/2 of one percent per annum plus (ii) the Federal Funds Rate.
"Base Rate Loan" means any outstanding principal amount of the Dollar
Loans of any Lender which bears interest with reference to the Base Rate.
"Blocked Account" has the meaning assigned to such term in the
Domestic Security Agreements.
"Blocked Account Bank" has the meaning assigned to such term in the
Domestic Security Agreements.
"Blocked Account Letter" has the meaning specified in the Domestic
Security Agreements.
"Borrowing" means a borrowing consisting of Loans made to the same
Borrower on the same day in the same currency by the Lenders ratably according
to their respective Commitments.
"Borrowing Base" means, at any time, the sum of 85% of the Eligible
Receivables at such time plus 50% of the Eligible Inventory at such time, in
each case determined in Dollars at such time in accordance with Section 2.17.
"Borrowing Base Certificate" means a certificate of each Borrower
substantially in the form of Exhibit N.
"British Currency" means pounds sterling, the lawful currency of the
United Kingdom.
"Building Products" means Amerimax Building Products, Inc. (formerly
Alumax Building Products, Inc.), a Delaware corporation which is a direct,
wholly owned subsidiary of U.S. Operating Co. and, if the Fabral Merger is
10
consummated, which will be the survivor in such Fabral Merger.
"Building Products Pledge Agreement" means the Pledge Agreement, dated
September 25, 1996, made by Building Products in favor of the Agent, in
substantially the form of Exhibit S, as amended as of the Effective Date by the
Domestic Amendatory Agreement and as the same may be further amended,
supplemented or otherwise modified from time to time, pursuant to which Building
Products has pledged to the Agent, for the ratable benefit of the Secured
Parties, the Collateral covered thereby, including the Stock of Coated Products
U.S. and Laminated Products, to secure all of Building Products' Guarantied
Obligations.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to a Eurocurrency Loan, a day on which dealings are also carried on in
the London interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Loan.
"Capital Expenditures" means, for any Person for any period, the
aggregate of (without duplication) (i) all expenditures by such Person and its
consolidated Subsidiaries, except interest capitalized during construction,
during such period for property, plant or equipment, including, without
limitation, renewals, improvements, replacements and capitalized repairs, that
would be reflected as additions to property, plant or equipment on a
consolidated balance sheet of such Person and its Subsidiaries prepared in
conformity with GAAP and (ii) the principal amount of all Indebtedness incurred
or assumed in connection with any such additions to property, plant and
equipment in such period. For the purpose of this definition, the purchase
price of equipment which is acquired simultaneously with the trade-in of
existing equipment owned by such Person or any of its Subsidiaries or with
insurance proceeds shall be included in Capital Expenditures only to the extent
of the gross amount of such purchase price less the credit granted by the seller
of such equipment being traded in at such time or the amount of such proceeds,
as the case may be.
"Capital Financing Indebtedness" means all Indebtedness referred to in
clause (ii) of the definition of Capital Expenditures, all Capitalized Lease
Obligations and all other Indebtedness (including purchase money Indebtedness)
incurred solely for the purpose of financing or refinancing the acquisition of
assets or properties.
"Capitalized Lease" means, as to any Person, any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in conformity with GAAP.
11
"Capitalized Lease Obligations" means, as to any Person, the
capitalized amount of all obligations of such Person or any of its Subsidiaries
under Capitalized Leases, as determined on a consolidated basis in conformity
with GAAP.
"Cash Equivalents" means any or all of the following, so long as they
constitute Collateral and have a maturity of not greater than 180 days from the
date of issuance thereof: (i) readily marketable direct obligations of, or
fully and irrevocably guaranteed or insured by, the United States government or
any agency thereof or, in the case of the Foreign Loan Parties and their
Non-Domestic Subsidiaries, by their jurisdiction of organization,
(ii) certificates of deposit, eurodollar time deposits, overnight bank deposits
and bankers' acceptances of any Lender or a bank meeting the requirements set
forth in clauses (i) or (ii) of the definition of Eligible Assignee,
(iii) commercial paper of an issuer rated at least "A-1" by Standard & Poor's
Rating Service or "P-1" by Xxxxx'x Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency if both of the
two named rating agencies cease publishing ratings of investments, and (iv)
money market funds that invest primarily in any of the foregoing Cash
Equivalents.
"Cash Interest Expense" means, for any Person for any period, the Net
Interest Expense of such Person for such period, plus (a) interest expense
capitalized during construction for such period to the extent deducted in the
determination of such Net Interest Expense, less (b) Non-Cash Interest Expense
of such Person for such period.
"Change of Control" means the occurrence of one or more of the
following events with respect to Euramax except as specified below: (a) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of Euramax and
its Subsidiaries to any person or related group (a "Group") for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), together with any Affiliates of such Group; (b) the shareholders of
Euramax shall approve any plan or proposal for the liquidation or dissolution of
Euramax or, unless otherwise permitted pursuant to Section 7.5, any of its
Subsidiaries; (c) prior to a registered initial public offering (or
12
the equivalent thereof under any foreign laws, including a listing) of the
Stock of Euramax, CVC Europe and CVC U.S., together with their respective
Affiliates (including, without limitation, the Holding Company Investor) and
employees and management of the Loan Parties, shall cease to beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act) Stock of Euramax
representing not less than (i) 51% of the ordinary share interests in Euramax
and (ii) 51% of the total Voting Stock of Euramax (assuming conversion of all
freely convertible shares of any non-voting common stock into Voting Stock);
(d) after a registered initial public offering (or the equivalent thereof
under any foreign laws, including a listing) of the Stock of Euramax, CVC
Europe and CVC U.S., together with their respective Affiliates (including,
without limitation, the Holding Company Investor) and employees and
management of the Loan Parties, shall cease to beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act) Stock of Euramax representing
(A) not less than 33-1/3% of the ordinary share interests in Euramax and (B)
not less than 33-1/3% of the total Voting Stock of Euramax; (e) either (i)
any Person (or group of Persons (as such term is defined in the Exchange
Act)), together with Affiliates thereof and Persons owning directly or
indirectly 5% or more of either the Stock thereof or the combined voting
power of the Voting Stock thereof, shall beneficially own (within the meaning
of Rule 13d-3 under the Exchange Act) or own of record, a greater percentage
of the ordinary share interests in Euramax than CVC Europe and CVC U.S.,
together with their respective Affiliates (including, without limitation, the
Holding Company Investor) and employees and management of the Loan Parties,
or (ii) any Person (or group of Persons (as such term is defined in the
Exchange Act)), together with Affiliates thereof and Persons owning directly
or indirectly 5% or more of either the Stock thereof or the combined voting
power of the Voting Stock thereof, other than CVC Europe and CVC U.S.,
together with their respective Affiliates (including, without limitation, the
Holding Company Investor) and employees and management of the Loan Parties,
shall beneficially own or own of record 40% or more of the voting power of
the outstanding Voting Stock of Euramax; (f) any Person other than CVC Europe
or CVC U.S. shall own, beneficially or of record, more than 50% of the Stock
of Euramax; (g) any Person other than a Loan Party shall be or become an
ERISA Affiliate or Tax Affiliate of Euramax; (h) Euramax shall be or become a
Subsidiary of any Person other than CVC Europe or CVC U.S.; or (i) a "Change
of Control" as defined in any Senior Subordinated Debt Document, in the
organizational documents of Euramax or in any document or certificate
relating to any Stock or Stock Equivalents of Euramax shall occur.
"Chief Financial Officer" and "chief financial officer" each mean, as
to Euramax, until a chief financial officer is appointed, its Vice President of
Finance and, thereafter and as to any other Person, such Person's chief
financial officer.
"Closing Date" means September 25, 1996.
"Coated Products, B.V." means Euramax Coated Products, B.V. (formerly
Alumax Coated Products B.V.), a company organized under the laws of the
Netherlands and a direct, wholly owned Subsidiary of Dutch Operating Co.
"Coated Products U.K." means Euramax Coated Products Limited (formerly
Alumax Coated Products U.K. Limited), a company organized under the laws of
England and Wales and a direct, wholly owned Subsidiary of U.K.
13
Operating Co. (or, from and after a Permitted Coated Products Share Transfer,
of U.K. Company, or, if a Permitted U.K. Operating Co. Share Transfer and a
Permitted Coated Products Share Transfer have both been effected, of U.K.
Holdings).
"Coated Products U.S." means Amerimax Coated Products, Inc. (formerly
Alumax Coated Products, Inc.), a Delaware corporation and a direct, wholly owned
Subsidiary of Building Products.
"Code" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien is granted under any of the Collateral Documents.
"Collateral Documents" means the Domestic Collateral Documents, the
Foreign Collateral Documents and any other document executed and delivered by a
Loan Party granting a Lien on any of its property to secure payment of any of
the Obligations or Guarantied Obligations.
"Commitment" means, as to any Lender, such Lender's Revolving Credit
Commitment, if any, and Term Loan Commitment, if any, and "Commitments" means
the aggregate Revolving Credit Commitments and Term Loan Commitments of all
Lenders.
"Company Obligations" means the Loans and all other advances, debts,
liabilities, obligations, covenants and duties owing by any Loan Party to the
Agent, the U.K. Trustee, any Lender, the Issuer, any Affiliate of any of them,
any Indemnitee or any Currency Swap Party that has executed the Agency
Agreement, of every type and description, present or future, whether or not
evidenced by any note, guaranty or other instrument, arising under this
Agreement or under any other Loan Document, whether or not for the payment of
money, loan, guaranty, indemnification, foreign exchange transaction, Currency
Contract, Interest Rate Contract or in any other manner, whether direct or
indirect (including, without limitation, those acquired by assignment), absolute
or contingent, due or to become due, now existing or hereafter arising and
however acquired, but excluding the Excluded U.S. Liabilities and excluding any
of the foregoing owing to the Agent or a Lender (or any Affiliate of the Agent
or any Lender) solely in its capacity as a holder of any equity of Euramax or
any Senior Subordinated Notes. The term "Company Obligations" includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to any Loan Party under this
Agreement or any other Loan Document, but excluding the Excluded U.S.
14
Liabilities.
"Contingent Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness or Contractual Obligation of another Person, if the purpose or
intent of such Person in incurring the Contingent Obligation is to provide
assurance to the obligee of such Indebtedness or Contractual Obligation that
such Indebtedness or Contractual Obligation will be paid or discharged, or that
any agreement relating thereto will be complied with, or that any holder of such
Indebtedness or Contractual Obligation will be protected (in whole or in part)
against loss in respect thereof. Contingent Obligations of a Person include,
without limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of an obligation
of another Person, (b) any liability of such Person for an obligation of another
Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another Person, (iii) to make take-or-pay or similar
payments, if required, regardless of non-performance by any other party or
parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such obligation or to assure the holder of such
obligation against loss, or (v) to supply funds to or in any other manner invest
in such other Person (including, without limitation, to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of this sentence the primary purpose or intent thereof is as
described in the preceding sentence, and (c) any "Guaranty" as defined in any
Subordinated Debt Agreement. The amount of any Contingent Obligation shall be
equal to the amount of the obligation so guaranteed or otherwise supported.
"Contract" means any contract, agreement, undertaking, indenture,
note, bond, loan, instrument, lease, conditional sales contract, mortgage, deed
of trust, license, franchise, insurance policy, commitment or other arrangement.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any Contract (excluding a Loan Document) to which such Person is a
party or by which it or any of its property is bound or to which any of its
properties is subject.
15
"Costs" means the costs, fees and expenses of the Transactions.
"Currency Contract" means a currency swap agreement, currency cap
agreement or currency collar agreement entered into to provide protection
against currency fluctuations with respect to amounts owing on any Indebtedness.
"Currency Swap Party" means any Lender, the Agent or any Affiliate of
the Agent, in each case in its capacity as a party to any Currency Contract with
a Loan Party.
"Current Assets" means for any Person at any date the total
consolidated current assets (other than cash and Cash Equivalents) of such
Person and its Subsidiaries at such date, determined in conformity with GAAP,
before giving effect to reclassifications to reflect assets held for sale
outside of the ordinary course of business.
"Current Liabilities" means for any Person at any date the total
consolidated current liabilities of such Person and its Subsidiaries at such
date, determined in conformity with GAAP, before giving effect to
reclassifications to reflect assets held for sale outside of the ordinary course
of business, less the sum of (i) the principal amount of any current portion of
long-term Indebtedness to the extent such Indebtedness is permitted hereunder to
be incurred or remain outstanding, (ii) the principal amount of any current
portion of Capitalized Lease Obligations to the extent such Capitalized Lease
Obligations are permitted hereunder to be incurred or remain outstanding, and
(iii) the then outstanding principal amount of the Loans to the extent included
in current liabilities.
"CVC Europe" means CVC European Equity Limited, a Jersey, Channel
Islands company which is (a) a direct, wholly owned Subsidiary of CVC Capital
Partners Europe Limited, a Jersey, Channel Islands company owned by individuals,
and (b) the general partner of each of CVC European Equity Partners, L.P., a
Delaware limited partnership, and CVC European Equity Partners (Jersey), L.P., a
Jersey, Channel Islands limited partnership. As used in this Agreement, the
term "CVC Europe" shall mean, collectively, CVC European Equity Limited and each
of the entities listed in clause (b) above.
"CVC U.S." means Citicorp Venture Capital, Ltd., a New York
corporation.
"Default" means any event which with the passing of time or the giving
of notice or both would become an Event of Default.
16
"Designated Obligations" shall mean all Obligations of the Borrowers
in respect of (a) principal of, and interest on, the Loans, (b) the Letter of
Credit Obligations and (c) fees, whether or not the same shall at the time of
any determination be due and payable under the terms of the Loan Documents.
"Disposition" means any sale, conveyance, transfer, assignment,
license, lease or other disposition (including, without limitation, by merger or
consolidation, and by condemnation, eminent domain, loss, damage, or
destruction, and whether by operation of law or otherwise) by Euramax or any of
its Subsidiaries to any Person of any Stock of any of its Subsidiaries, any
Stock Equivalents of any of its Subsidiaries or any other asset or property.
"DOL" means the United States Department of Labor, or any successor
thereto.
"Dollar Loan" means at any time a Loan denominated in Dollars at such
time.
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Domestic Amendatory Agreement" means the Domestic Amendatory
Agreement, dated as of the Effective Date, in substantially the form of Exhibit
U, among the Loan Parties, the Agent, the U.K. Trustee and Paribas, as the sole
Currency Swap Party on the Effective Date.
"Domestic Collateral Documents" means the Domestic Security
Agreements, the Blocked Account Letters, the U.S. Operating Co. Pledge
Agreement, the Building Products Pledge Agreement, the Fabral Holdings Pledge
Agreement, the Domestic Mortgages, the Domestic Leasehold Mortgages, the U.S.
Holdings Pledge Agreement, the Euramax Stock (U.S.) and Debt Pledge Agreement
and the Euramax Assignment Agreement, each governed by the laws of a state
within the United States of America, and any other document executed by Euramax
or a Domestic Subsidiary thereof and governed by the laws of a state within the
United States of America pursuant to which Euramax or such Subsidiary shall
pledge, mortgage or grant any Lien to secure any of the Obligations or any of
its Guarantied Obligations, as such other document may be amended, supplemented
or otherwise modified from time to time.
"Domestic Guaranties" means the U.S. Holdings Guaranty, the U.S.
Operating Co. Guaranty and the Domestic Subsidiary Guaranty, each governed by
the Applicable Governing Law.
17
"Domestic Leasehold Mortgage" means each of the separate leasehold
mortgages or leasehold deeds of trust (if any), made on or after the Effective
Date by any Domestic Loan Party, each in substantially the same form as the
Domestic Mortgages, but subject to such revisions as are appropriate for, or as
the Agent shall reasonably deem applicable to, a mortgage, deed of trust or
other security instrument encumbering a leasehold estate, as each such Domestic
Leasehold Mortgage may be amended, supplemented or otherwise modified from time
to time, pursuant to which such Domestic Loan Party shall mortgage any Lease to
secure (a) such Domestic Loan Party's Guarantied Obligations and (b) all
Obligations.
"Domestic Lending Office" means, with respect to any Lender or the
Issuer, (a) in the case of any Lender, the office of such Lender specified as
its "Domestic Lending Office" opposite its name on Schedule III, (b) in the case
of the Issuer with respect to Letters of Credit issued for the account of U.S.
Operating Co., the same office of the Issuer as is specified as its "Domestic
Lending Office" opposite the Issuer's name on Schedule III, and (c) in the case
of each Lender and the Issuer, such other office of such Lender or the Issuer as
such Lender or the Issuer may from time to time specify to the Borrowers and the
Agent.
"Domestic Loan Party" means U.S. Holdings and each Domestic Subsidiary
of U.S. Holdings including U.S. Operating Co. and each Operating Company
Subsidiary thereof.
"Domestic Mortgage" means each of the separate mortgages and deeds of
trust for the parcels of Real Estate referred to therein made by a Domestic Loan
Party pursuant to the Existing Credit Agreement, and the mortgages and deeds of
trust for the parcels of Real Estate referred to therein made on or after the
Effective Date by a Domestic Loan Party, each in substantially the form of
Exhibit E, as any such Domestic Mortgages may be amended, supplemented or
otherwise modified from time to time, pursuant to which such Domestic Loan Party
shall mortgage such Real Estate to secure (a) such Domestic Loan Party's
Guarantied Obligations and (b) all Obligations.
"Domestic Pension Plans" means all Plans which are Pension Plans.
"Domestic Security Agreement" means each of the separate Security
Agreements, each dated as of September 25, 1996 in the case of Domestic Loan
Parties who are Existing Credit Parties, and dated as of April 25, 1997 in the
case of Laminated Products, each in substantially the form of Exhibit F hereto
and each as amended as of the Effective Date by the Domestic Amendatory
Agreement, made by such Domestic Loan Parties in favor of the
18
Agent, and each of the separate agreements, each in substantially the form of
Exhibit F hereto, as amended by the Domestic Amendatory Agreement, executed
on or after the Effective Date by any Domestic Loan Party, as each such
Security Agreement or other agreement may be further amended, supplemented or
otherwise modified from time to time, pursuant to which each such Domestic
Loan Party shall xxxxx x Xxxx to the Agent, for the ratable benefit of the
Secured Parties, in the Collateral covered thereby to secure (a) its
Guarantied Obligations and (b) all Obligations.
"Domestic Subsidiary" means, as to any Person, each Subsidiary of such
Person organized under the laws of a state of the United States of America.
"Domestic Subsidiary Guaranty" means the Guaranty, dated as of
September 25, 1996, in substantially the form of Exhibit G, as supplemented as
of March 28, 1997 and as amended as of the Effective Date by the Domestic
Amendatory Agreement, executed by each Domestic Subsidiary of U.S. Operating Co.
in favor of the Guarantied Parties, as such Guaranty may be further amended,
supplemented or otherwise modified from time to time, pursuant to which each
such Domestic Subsidiary has unconditionally guarantied its Guarantied
Obligations.
"Dutch Collateral Documents" means the Dutch Company Pledge Agreement,
the Dutch Holdings Stock and Debt Pledge Agreement, each Dutch Mortgage, the
Dutch Operating Co. Pledge Agreement and each Dutch Security Agreement, each
governed by the laws of the Netherlands, the Additional Dutch Collateral
Documents, and any other document executed by Dutch Holdings or a Subsidiary
thereof and governed by the laws of the Netherlands pursuant to which Dutch
Holdings or such Subsidiary has pledged, mortgage or xxxxx x Xxxx to secure any
of the Obligations (to the extent specified therein) or its Guarantied
Obligations, as such other document may be amended, supplemented or otherwise
modified from time to time.
"Dutch Company Guaranty" means the Dutch Company Guaranty, dated as
of September 25, 1996, as amended as of the Effective Date by the Domestic
Amendatory Agreement, executed by Dutch Company in favor of the Guarantied
Parties, as such guaranty may be further amended, supplemented or otherwise
modified from time to time, pursuant to which Dutch Company shall
unconditionally guaranty its Guarantied Obligations.
"Dutch Company Pledge Agreement" means the Dutch Company Pledge
Agreement, dated as of September 25, 1996, executed by Dutch Company and the
Agent and acknowledged by Dutch Operating Co., as such agreement may be further
amended, supplemented or otherwise modified from
19
time to time, pursuant to which Dutch Company has pledged to the Agent, for
the ratable benefit of the Secured Parties, the Collateral covered thereby,
including the Stock of Dutch Operating Co., to secure all Company Obligations
and Dutch Company's Guarantied Obligations in each case in respect of the
Existing Loans.
"Dutch Company Revolving Credit Note" means a promissory note of Dutch
Company payable to the order of any Revolving Credit Lender, in substantially
the form of Exhibit A-1, evidencing the Indebtedness of Dutch Company to such
Revolving Credit Lender resulting from the Existing Transaction Revolving Credit
Loan made on the Closing Date by such Revolving Credit Lender to Dutch Company,
which promissory note replaces the Existing Note of such Lender dated the
Closing Date and evidencing said Loan.
"Dutch Company Term Loan" means a Dutch Company Term Loan (as defined
in the Existing Credit Agreement) set forth on Schedule I-A hereto.
"Dutch Company Term Note" means a promissory note of Dutch Company
payable to the order of any Lender, in substantially the form of Exhibit A-5,
evidencing the Indebtedness of Dutch Company to such Lender resulting from the
Dutch Company Term Loan, if any, made on the Business Day following the Closing
Date by such Lender to Dutch Company, which promissory note replaces the
Existing Note of such Lender dated the Closing Date and evidencing said Loan.
"Dutch Currency" means guilders, the lawful currency of the
Netherlands.
"Dutch Entities Purchase" has the meaning specified in clause (iv) of
the definition of "Prior Purchase".
"Dutch Guaranties" means the Dutch Holdings Guaranty, the Dutch
Company Guaranty, the Dutch Operating Co. Guaranty, and the Dutch Subsidiary
Guaranties, each governed by the Applicable Governing Law.
"Dutch Holdings Existing Nantissement" means the Nantissement, dated
as of the Closing Date, executed by Dutch Holdings and the Agent, pursuant to
which (a) Dutch Holdings pledged to the Agent, for the ratable benefit of the
Secured Parties, over the Collateral covered thereby, including the French
Intercompany Note, to secure the Guarantied Obligations of Dutch Holdings
referred to in the Existing Credit Agreement, which Nantissement will be
terminated on the Effective Date.
"Dutch Holdings Guaranty" means the Dutch Holdings Guaranty, dated as
of September 25, 1996, as amended as of the Effective Date by the
20
Domestic Amendatory Agreement, executed by Dutch Holdings in favor of the
Guarantied Parties, as such guaranty may be further amended, supplemented or
otherwise modified from time to time, pursuant to which Dutch Holdings has
unconditionally guarantied its Guarantied Obligations.
"Dutch Holdings Nantissement" means the Share Pledge Agreement, dated
as of the Effective Date, executed by Dutch Holdings and the Agent, as such
document may be amended, supplemented or otherwise modified from time to time,
pursuant to which Dutch Holdings shall pledge to the Agent, for the ratable
benefit of the Secured Parties, the Collateral covered thereby, including the
Stock of French Holdings held on the Effective Date and to be held thereafter by
Dutch Holdings, to secure the Guarantied Obligations of Dutch Holdings.
"Dutch Holdings Stock and Debt Pledge Agreement" means the Dutch
Holdings Stock and Debt Pledge Agreement, dated as of September 25, 1996,
executed by Dutch Holdings and the Agent and acknowledged by Dutch Company, as
such agreement may be further amended, supplemented or otherwise modified from
time to time, pursuant to which Dutch Holdings has pledged to the Agent, for the
ratable benefit of the Secured Parties, the Collateral covered thereby,
including the Stock of Dutch Company and the Intercompany Notes made by Dutch
Company, to secure Dutch Holdings' Guarantied Obligations in respect of the
Existing Loans.
"Dutch Mortgage" means the mortgage, dated as of September 25, 1996,
as the same may be further amended, supplemented or otherwise modified from time
to time, between Coated Products B.V. and the Agent, pursuant to which Coated
Products B.V. has granted to the Agent, for the ratable benefit of the Secured
Parties, a Lien on the Real Estate covered thereby to secure all Guarantied
Obligations of Coated Products B.V. in respect of the Existing Loans, and each
other mortgage between Dutch Operating Co. or a Subsidiary thereof and the
Agent, in form and substance satisfactory to the Lenders, granting a Lien to the
Agent, for the ratable benefit of the Secured Parties, on Real Estate owned by
Dutch Operating Co. or such Subsidiary, to secure, in the case of Dutch
Operating Co., the Dutch Operating Co. Obligations and all Guarantied
Obligations of Dutch Operating Co. and to secure, in the case of such
Subsidiary, such Subsidiary's Guarantied Obligations, as any of the foregoing
may be amended, supplemented or otherwise modified from time to time.
"Dutch Operating Co. Guaranty" means the Guaranty, dated as of
September 25, 1996 and as amended as of the Effective Date by the Domestic
Amendatory Agreement, executed by Dutch Operating Co. in favor of the Guarantied
Parties, as such guaranty may be further amended, supplemented or
21
otherwise modified from time to time, pursuant to which Dutch Operating Co.
has unconditionally guarantied its Guarantied Obligations.
"Dutch Operating Co. Obligations" means the Loans and all other
advances made to, debts, liabilities and obligations of, covenants agreed to by,
and duties owing by, any Loan Party to the Agent, any Lender, the Issuer, any
Affiliate of any of them, any Indemnitee or any Currency Swap Party that has
executed the Agency Agreement, of every type and description, present or future,
whether or not evidenced by any note, guaranty or other instrument, arising
under this Agreement or under any other Loan Document, whether or not for the
payment of money, loan, guaranty, indemnification, foreign exchange transaction,
Currency Contract, Interest Rate Contract or in any other manner, whether direct
or indirect (including, without limitation, those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired, and including, without limitation, all interest, charges,
expenses, fees, attorneys' fees and disbursements and any other sum chargeable
to any Loan Party under this Agreement or any other Loan Document, excluding in
each such case (i) the Excluded U.S. Liabilities, (ii) all Obligations incurred
to finance the Dutch Entities Purchase, and (iii) any of the foregoing owing to
the Agent or a Lender (or any Affiliate of the Agent or any Lender) solely in
its capacity as a holder of any equity of Euramax or any Senior Subordinated
Notes.
"Dutch Operating Co. Pledge Agreement" means the Pledge Agreement,
dated as of September 25, 1996, executed by Dutch Operating Co. and the Agent
and acknowledged by Coated Products B.V., pursuant to which Dutch Operating Co.
has pledged to the Agent, for the ratable benefit of the Secured Parties, the
Collateral covered thereby, including the Stock of Coated Products B.V., to
secure the Dutch Operating Co. Obligations and all Guarantied Obligations of
Dutch Operating Co., in each case in respect of the Existing Loans, as said
agreement may be further amended, supplemented or otherwise modified from time
to time.
"Dutch Operating Co. Revolving Credit Note" means a promissory note of
Dutch Operating Co. payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-2, evidencing the aggregate Indebtedness of
Dutch Operating Co. to such Revolving Credit Lender resulting from the Revolving
Credit Loans (including such Lender's Existing Revolving Credit Loans made to
Dutch Operating Co.) made from time to time by such Revolving Credit Lender to
Dutch Operating Co. and, in the case of the Swing Loan Lender, the Swing Loans
made from time to time by the Swing Loan Lender to Dutch Operating Co., which
promissory note replaces the Existing Note of such Lender dated the Closing Date
and evidencing said Existing Revolving Credit Loans.
22
"Dutch Security Agreement" means each of the Security Agreements,
dated as of September 25, 1996, executed by Dutch Operating Co. and the Agent
and the Security Agreement, dated as of September 25, 1996, executed by Coated
Products B.V. and the Agent, as the same may be further amended, supplemented or
otherwise modified from time to time, pursuant to which Dutch Operating Co. and
Coated Products B.V. have respectively granted to the Agent, for the ratable
benefit of the Secured Parties, a Lien on the personal property owned by such
Loan Party to secure, in the case of Dutch Operating Co., the Dutch Operating
Co. Obligations and all Guarantied Obligations of Dutch Operating Co., in each
case in respect of the Existing Loans, and in the case of Coated Products B.V.,
the Guarantied Obligations of Coated Products B.V. in respect of the Existing
Loans, and each other security agreement executed by Dutch Operating Co. or a
Subsidiary thereof and by the Agent, each in form and substance satisfactory to
the Lenders, pursuant to which Dutch Operating Co. or such Subsidiary shall
xxxxx x Xxxx to the Agent, for the ratable benefit of the Secured Parties, on
personal property owned by Dutch Operating Co. or such Subsidiary to secure, in
the case of Dutch Operating Co., the Dutch Operating Co. Obligations and all
Guarantied Obligations of Dutch Operating Co. and to secure, in the case of such
Subsidiary, its Guarantied Obligations, as any such document may be amended,
supplemented or otherwise modified from time to time.
"Dutch Subsidiary Guaranty" means each Guaranty, dated as of September
25, 1996, as amended as of the Effective Date by the Domestic Amendatory
Agreement, executed by Coated Products B.V. in favor of the Guarantied Parties,
and each other Guaranty, each in form and substance satisfactory to the Lenders,
executed by a Subsidiary of Dutch Operating Co. in favor of the Guarantied
Parties, pursuant to which such Subsidiary shall unconditionally guaranty its
Guarantied Obligations.
"EBITDA" means, for any Person for any period, the Net Income (Loss)
of such Person for such period taken as a single accounting period, plus,
without duplication, (a) the sum of the following amounts of such Person and its
Subsidiaries for such period determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income (Loss):
(i) depreciation expense, (ii) amortization expense, (iii) Net Interest Expense,
(iv) income tax expense, and (v) extraordinary losses (and other losses on Asset
Sales not otherwise included in extraordinary losses determined on a
consolidated basis in
23
conformity with GAAP); less (b) the sum of the following amounts of such
Person and its Subsidiaries determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income
(Loss): (i) extraordinary gains (and other gains on Asset Sales not
otherwise included in extraordinary gains determined on a consolidated basis
in conformity with GAAP), (ii) the Net Income (Loss) of any other Person that
is accounted for by the equity method of accounting except to the extent of
the amount of dividends or distributions paid to such Person, and (iii) the
Net Income (Loss) of any other Person acquired by such Person or a Subsidiary
of such Person in a transaction accounted for as a pooling of interests for
any period prior to the date of such acquisition unless audited financial
statements are available for the most recently completed fiscal year, but
excluding all costs, fees and expenses set forth on Schedule 3.1(s)-1, to the
extent actually incurred.
"Effective Date" has the meaning specified in Section 3.1.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets in excess of $5,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD or the Cayman
Islands; (iii) the central bank of any country which is a member of the OECD;
(iv) an insurance company organized under the laws of the United States, or any
State thereof, and having total assets in excess of $5,000,000,000; (v) any
Lender; (vi) any Affiliate of any Lender (other than any such Affiliate who is
an Affiliate of such Lender solely by reason of such Lender being the beneficial
owner of more than 10% (but less than 50%) of any class of Voting Stock of such
Affiliate) and (vii) any other financial institution approved by the Agent.
"Eligible Inventory" means such of the inventory (as defined in the
Uniform Commercial Code as in effect in the State of New York) of each Operating
Company and each Operating Company Subsidiary as constitutes Collateral in which
the Agent has a fully perfected first priority security interest and that the
Agent, in its sole discretion, exercised reasonably, deems eligible. For the
purpose of computing the Borrowing Base, Eligible Inventory shall be valued at
the lower of market or cost on a first in first out basis.
"Eligible Receivables" means the gross outstanding balance (determined
in Dollars in accordance with Section 2.17 in the case of any such balance in an
Alternative Currency), less all finance charges, late fees and other fees which
are unearned, sales, excise or similar taxes, and credits or allowances granted
(other than volume discounts, rebates and trade allowances), of those Accounts
of each Operating Company and each Operating Company Subsidiary arising out of
sales of merchandise, goods or services in the ordinary course of business, made
by such Operating Company or such
24
Operating Company Subsidiary to a Person which is not an Affiliate of such
Operating Company or such Operating Company Subsidiary or any other Loan
Party, which are not in dispute, and which constitute Collateral in which the
Agent has a fully perfected first priority security interest, and, if the
account debtor is a U.S. Governmental Authority, such Operating Company or
such Operating Company Subsidiary has assigned its rights to payment of such
account to the Agent pursuant to the Assignment of Claims Act of 1940, as
amended, in the case of a federal U.S. Governmental Authority, and pursuant
to applicable state law, if any, in the case of any other U.S. Governmental
Authority, and such assignment has been accepted and acknowledged by the
appropriate government officers; provided, however, that an Account shall in
no event be an Eligible Receivable if:
(a) such Account is more than (i) 90 days past due, according to the
original terms of sale, or (ii) (A) 120 days past the original invoice date
thereof with respect to any Account owing by an account debtor located within
the United States, and (B) 180 days past the original invoice date thereof with
respect to any Account owing by an account debtor located outside the United
States; or
(b) any warranty contained in this Agreement or any other Loan
Document with respect either to Accounts or Eligible Receivables in general or
to such specific Account is not true and correct in all material respects with
respect to such Account; or
(c) the account debtor on such Account has disputed liability or made
any claim with respect to 20% or more of the other Accounts due from such
account debtor to any Loan Party or any of its Subsidiaries; or
(d) the account debtor on such Account has filed a petition for
bankruptcy or any other relief under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors; made an assignment for the benefit of
creditors; had filed against it any petition or other application for relief
under any such law; has failed, suspended business operations, become insolvent,
called a meeting of its creditors for the purpose of obtaining any financial
concession or accommodation, or had or suffered a receiver or a trustee to be
appointed for all or a significant portion of its assets or affairs; or
(e) the account debtor on such Account or any of its Affiliates is
also a supplier to or creditor of any Loan Party or any of its Subsidiaries
unless such supplier or creditor has executed a no-offset letter satisfactory to
the Agent, in its sole discretion; or
(f) the sale represented by such Account is to an account debtor
25
outside the continental United States in the case of U.S. Operating Co. and its
Operating Company Subsidiaries, or outside a European Core Country, in the case
of Dutch Operating Co., U.K. Operating Co. and their respective Operating
Company Subsidiaries, unless the sale is on letter of credit or acceptance terms
acceptable to the Agent in its sole judgment, exercised reasonably, or the
Agent, in its sole discretion, shall agree to the inclusion of such Account in
Eligible Receivables; or
(g) the sale to such account debtor on such Account is on a
xxxx-on-hold, guaranteed sale, sale-and-return, sale-on-approval or consignment
basis; or
(h) such Account is subject to a Lien in favor of any Person other
than the Agent for the benefit of the Secured Parties; or
(i) such Account is subject to any deduction, offset, counterclaim,
return privilege or other conditions other than ordinary course return policy;
or
(j) the account debtor on such Account is located in New Jersey or
Minnesota, unless such Operating Company or such Operating Company Subsidiary
(i) has received a certificate of authority to do business and is in good
standing in such state or (ii) has filed a Notice of Business Activities Report
with the appropriate office or agency of such state for the current year; or
(k) the Agent, in accordance with its customary criteria, deems such
Account, in the Agent's sole judgment, exercised reasonably, ineligible; or
(l) 50% or more of the outstanding Accounts of the account debtor of
such Account that constituted Eligible Receivables at the time they arose have
become, or have been determined by the Agent, in accordance with the provisions
hereof, to be, ineligible; or
(m) the sale represented by such Account is denominated in a currency
other than Dollars in the case of Accounts owing to U.S. Operating Co. and its
Operating Company Subsidiaries, or a currency other than that of a European Core
Country in the case of U.K. Operating Co. and its Operating Company Subsidiaries
and Dutch Operating Co. and its Operating Company Subsidiaries; or
(n) the Agent believes, in its sole discretion, exercised reasonably,
that the collection of such Account is insecure or that such Account may not be
paid; or
(o) such Account is not evidenced by an invoice or other writing
26
in form acceptable to the Agent, in its sole discretion exercised reasonably
and consistent with past practices; or
(p) any Loan Party or any of its Subsidiaries, in order to be
entitled to collect such Account, is required to perform any additional service
for, or perform or incur any additional obligation to, the Person to whom or to
which it was made; or
(q) in the case of any account debtor whose Accounts represent more
than 20% of the Eligible Receivables at such time, all Accounts of such account
debtor to the extent such Accounts would otherwise represent Eligible
Receivables in excess of 20% of all Eligible Receivables at such time.
"Ellbee Ltd." means Ellbee Limited (formerly Alumax Ellbee Limited), a
company organized under the laws of England and Wales and a direct, wholly owned
Subsidiary of U.K. Operating Co. (or, from and after a Permitted Ellbee Share
Transfer, of U.K. Company or, if a Permitted U.K. Operating Co. Share Transfer
and a Permitted Ellbee Share Transfer have both been effected, of U.K.
Holdings).
"Environmental Claim" means any written accusation, allegation, notice
of violation, action, claim, Environmental Lien, demand or Order by any
Governmental Authority or any other Person for personal injury (including
sickness, disease or death), property damage, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
fines, penalties or restrictions, in each case resulting from or based upon
(i) the existence, or the continuation of the existence, of a Release
(including, without limitation, sudden or non-sudden accidental or
non-accidental Releases) of, or exposure to, any Hazardous Material or odor,
audible noise or other nuisance, in, into or onto the environment (including,
without limitation, the air, soil, surface water or groundwater) at, in, by or
from any property owned, operated or leased by any Loan Party or any of its
Subsidiaries or any activities or operations thereof; (ii) the environmental
aspects of the transportation, storage, treatment or disposal of Hazardous
Materials in connection with any property owned, operated or leased by any Loan
Party or any of its Subsidiaries or their operations or facilities; or (iii) the
violation, or alleged violation, of any Environmental Laws, Orders or
Environmental Permits of or from any Governmental Authority relating to
environmental matters connected with any property owned, leased or operated by
any Loan Party or any of its Subsidiaries.
"Environmental Laws" means any applicable federal, state, local or
foreign law (including common law), statute, code, ordinance, rule, regulation
or directive relating in any way to the protection of the environment, natural
resources, or public or employee health and safety and includes, without
27
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq., the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901
et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the
Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq., the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq., the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.,
the Environmental Control Act of Xxxxx 0, 0000 (Xxxxxxxxxxx), Law Xx. 00-000 xx
Xxxx 00, 0000 (Xxxxxx) and European Directive 00/000 XXX of May 4, 1976 (EC), as
such laws have been amended or supplemented, and the regulations promulgated
pursuant thereto, and all analogous foreign, state and local statutes.
"Environmental Liabilities and Costs" means, as to any Person, all
liabilities, obligations, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including, without
limitation, all fees, disbursements and expenses of counsel, experts and
consultants and costs of, fines, penalties, sanctions and interest) arising
under any Environmental Law.
"Environmental Lien" means any Lien in favor of any Governmental
Authority arising under any Environmental Law.
"Environmental Permit" means any Permit required under any applicable
Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or
any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any corporation, trade or business (whether or
not incorporated) under common control or treated as a single employer with any
Loan Party within the meaning of Section 414 (b), (c), (m) or (o) of the Code.
"ERISA Event" means (i) an event described in Sections 4043(c)(1),
(2), (3), (5), (6), (8) or (9) of ERISA with respect to a Pension Plan; (ii) the
withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (iii) the complete or
partial withdrawal of any Loan Party or any ERISA Affiliate from any
Multiemployer Plan or the insolvency of any Multiemployer
28
Plan; (iv) the filing of a notice of intent to terminate a Pension Plan or
the treatment of a plan amendment as a termination under Section 4041 of
ERISA; (v) the institution of proceedings by the PBGC to terminate or appoint
a trustee to administer a Pension Plan or Multiemployer Plan; (vi) the
failure to make any required contribution to a Pension Plan; (vii) any other
event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; (viii) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA; (ix) a
non-exempt prohibited transaction (as described in Code Section 4975 or ERISA
Section 406) shall occur with respect to any Plan; or (x) any Loan Party or
ERISA Affiliate shall request a minimum funding waiver from the IRS with
respect to any Pension Plan; provided, however, that acts or omissions
described in clauses (i) through (x) herein with respect to Pension Plans or
Multiemployer Plans maintained or contributed to by an ERISA Affiliate (and
not by Euramax or any of its Subsidiaries) will not constitute an ERISA Event
unless such acts and omissions, in the reasonable determination of the Agent
or the Majority Lenders, have a reasonable possibility of a liability to be
paid by Euramax or any of its Subsidiaries exceeding $2,000,000 in the
aggregate after taking into account any rights to reimbursement from such
ERISA Affiliate.
"Euramax Assignment Agreement" means the Assignment Agreement, dated
as of September 25, 1996, in substantially the form of Exhibit L, as amended as
of the Effective Date by the Domestic Amendatory Agreement, executed by Euramax,
as such agreement may be further amended, supplemented or otherwise modified
from time to time, pursuant to which Euramax has granted a Lien in, and assigned
to the Agent for the ratable benefit of the Secured Parties, the Prior Purchase
Agreement and other documents relating to the Prior Purchase to secure the
Guarantied Obligations of Euramax.
"Euramax Deed of Pledge" means the Deed of Pledge, dated as of
September 25, 1996, executed by Euramax and the Agent, as such document may be
further amended, supplemented or otherwise modified from time to time, pursuant
to which Euramax has pledged to the Agent, for the ratable benefit of the
Secured Parties, the Collateral referred to therein, including the Stock of
Dutch Holdings, to secure the Guarantied Obligations of Euramax in respect of
the Existing Loans, provided that only 65% of the Stock of Dutch Holdings shall
secure the Excluded U.S. Liabilities.
"Euramax Existing Nantissement" means the Share Pledge Agreement,
dated September 25, 1996, executed by Euramax and the Agent, pursuant to which
Euramax has pledged to the Agent, for the ratable benefit of the Secured
Parties, the Collateral referred to therein, including the Stock of French
Holdings held by Euramax, to secure the Guarantied Obligations of Euramax in
respect of the Existing Loans, as said agreement shall be terminated on the
Effective Date.
29
"Euramax Guaranty" means the Guaranty, dated as of September 25, 1996,
executed by Euramax and the U.K. Trustee, for the ratable benefit of the
Guarantied Parties, as such guaranty may be amended, supplemented or otherwise
modified from time to time, pursuant to which Euramax unconditionally guarantied
its Guarantied Obligations.
"Euramax Nantissement" means the Share Pledge Agreement, dated as of
the Effective Date, executed by Euramax and the Agent, as such document may be
amended, supplemented or otherwise modified from time to time, pursuant to which
Euramax has pledged to the Agent, for the ratable benefit of the Secured
Parties, the Collateral covered thereby, including the Stock of French Holdings
held by Euramax on the Effective Date and to be held thereafter, to secure the
Guarantied Obligations of Euramax, provided that only 65% of the Stock of French
Holdings shall secure the Excluded U.S. Liabilities.
"Euramax Stock (U.K.) Pledge Agreement" means the Existing Euramax
Stock (U.K.) Pledge Agreement, dated as of September 25, 1996, executed by
Euramax and the U.K. Trustee, as such agreement may be amended, supplemented or
otherwise modified from time to time, pursuant to which Euramax has pledged to
the U.K. Trustee, for the ratable benefit of the Secured Parties, the Collateral
referred to therein, including the Stock of U.K. Holdings, to secure the
Guarantied Obligations of Euramax, provided that only 65% of the Stock of U.K.
Holdings shall secure the Excluded U.S. Liabilities.
"Euramax Stock (U.S.) and Debt Pledge Agreement" means the Euramax
Stock (U.S.) and Debt Pledge Agreement, dated as of September 25, 1996, in
substantially the form of Exhibit M, as amended as of the Effective Date by the
Domestic Amendatory Agreement, executed by Euramax, as such agreement may be
further amended, supplemented or otherwise modified from time to time, pursuant
to which Euramax has pledged to the Agent, for the ratable benefit of the
Secured Parties, the Collateral referred to therein, including the Stock of U.S.
Holdings and the Intercompany Notes made by U.S. Holdings, to secure the
Guarantied Obligations of Euramax.
"Eurocurrency Lending Office" means, with respect to any Lender or the
Issuer, (a) in the case of any Lender, the office of such Lender specified as
its "Eurocurrency Lending Office" opposite its name on Schedule III (or, if no
such office is specified, its Domestic Lending Office), (b) in the case of the
Issuer with respect to Letters of Credit issued for the account of Dutch
Operating Co. or U.K. Operating Co., the same office of the Issuer as is
specified as its "Eurocurrency Lending Office" opposite the Issuer's name on
Schedule III, and (c) in the case of each Lender and the Issuer, such other
office of such Lender or the Issuer as such Lender or the Issuer may from time
to time specify to the Borrowers and the Agent.
30
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Loan" means any outstanding principal amount of the
Loans of any Lender denominated in Dollars or in an Alternative Currency which,
for an Interest Period, bears interest at a rate determined with reference to
the Eurocurrency Rate.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Loan, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate of interest per annum at which deposits in
Dollars (in the case of any Dollar Loan) or in the applicable Alternative
Currency (in the case of any Loan denominated in an Alternative Currency) are
offered by the principal office of Paribas in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal to the
Eurocurrency Loan of Paribas during such Interest Period and for a period equal
to such Interest Period by (b) a percentage equal to 100% minus the Eurocurrency
Rate Reserve Percentage for such Interest Period.
"Eurocurrency Rate Reserve Percentage" for any Interest Period means
the reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
which includes deposits by reference to which the Eurocurrency Rate is
determined) having a term equal to such Interest Period.
"European Core Countries" means Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway,
Portugal, Spain, Sweden, Switzerland, the United Kingdom or any other country
which shall become a member of the European Economic Community.
"Event of Default" has the meaning specified in Section 8.1.
"Excess Cash Flow" means, for Euramax and its Subsidiaries on a
consolidated basis for any period, the Net Income (Loss) of Euramax and its
Subsidiaries on a consolidated basis for such period plus (without duplication)
the net income (loss) from discontinued operations of Euramax and its
31
Subsidiaries on a consolidated basis for such period determined in conformity
with GAAP (the "Net Income (Loss)-Discontinued Operations") plus (without
duplication) (a) the sum of (i) all non-cash charges (including, but not limited
to, non-cash charges relating to depreciation, amortization, deferred taxes,
pensions, post-retirement benefits, severance indemnities and other non-current
liabilities) of Euramax and its Subsidiaries on a consolidated basis for such
period to the extent included in the computation of such Net Income (Loss) and
Net Income (Loss)-Discontinued Operations (including non-cash items created by
the effects of FASB statement number 52), and (ii) the excess, if any, of the
Working Capital of Euramax and its Subsidiaries on a consolidated basis at the
beginning of such period over the Working Capital of Euramax and its
Subsidiaries on a consolidated basis at the end of such period (excluding, for
the purposes of making such calculation, the changes in Working Capital created
by the effects of FASB statement number 52) minus (b) the sum of (without
duplication) (A) scheduled cash principal payments on the Loans during such
period and optional cash principal payments on the Loans during such period
(but, in the case of Revolving Credit Loans, only to the extent that the
Revolving Credit Commitments are permanently reduced by the amount of such
payments), and scheduled cash principal payments on other Indebtedness made by
Euramax or any of its Subsidiaries during such period to the extent such other
Indebtedness is permitted herein and such payments are permitted herein to be
made, (B) scheduled payments made by Euramax or any of its Subsidiaries on
Capitalized Lease Obligations to the extent such Capitalized Lease Obligations
are permitted herein, (C) Capital Expenditures made by Euramax or any of its
Subsidiaries during such period to the extent permitted herein, (D) the excess,
if any, of the Working Capital of Euramax and its Subsidiaries on a consolidated
basis at the end of such period over the Working Capital of Euramax and its
Subsidiaries on a consolidated basis at the beginning of such period (excluding,
for the purposes of making such calculation, the changes in Working Capital
created by the effects of FASB statement number 52), and (E) all non-cash gains
of Euramax and its Subsidiaries on a consolidated basis for such period
(including non-cash items created by the effects of FASB statement number 52);
provided, however, that gains and losses from any Asset Sale during any period
and dividends made by any Subsidiary to Euramax during any period shall, to the
extent such Asset Sale or dividends are permitted to be made pursuant to the
Loan Documents, be excluded from the calculation of Excess Cash Flow for such
period.
"Excluded U.S. Liabilities" means all Revolving Credit Loans made to
U.S. Operating Co., all U.S. Dollar Term A Loans, all U.S. Dollar Term C Loans
and all Swing Loans made to U.S. Operating Co. and all interest payable on such
Loans, all Letter of Credit Obligations of U.S. Operating Co., any and all other
Obligations relating to any such Loans or Letter of Credit Obligations, and all
obligations of U.S. Holdings or any of its Domestic Subsidiaries under any
32
Currency Contracts entered into by U.S. Holdings or any such Subsidiary with any
Currency Swap Party.
"Existing Debt" has the meaning specified in Section 3.1(s)(vii).
"Existing Related Documents" means each Senior Subordinated Debt
Document, the Prior Purchase Agreement, the Asset Purchase Agreement, each
Intercompany Note, the Tax Allocation Agreement, the articles of association for
Euramax, the certificate of designation (or other similar document, if any) for
the Preference Shares, the Shareholders Agreement, the Registration Rights
Agreement, and each other document and instrument executed with respect to the
Existing Credit Agreement and the Loan Documents referred to therein, the Prior
Purchase, the issuance of the Senior Subordinated Notes or the Preference Shares
and the other equity of Euramax or the management of Euramax.
"Fabral Holdings Pledge Agreement" means the Fabral Holdings Pledge
Agreement, in substantially the form of Exhibit V, executed by Fabral Holdings,
as such agreement may be amended, supplemented or otherwise modified from time
to time, pursuant to which Fabral Holdings shall pledge the Collateral thereby
to the Agent, for the ratable benefit of the Secured Parties, including the
Stock of Fabral, Inc., to secure all Obligations and to secure Fabral Holdings'
Guarantied Obligations.
"Fabral Merger" has the meaning specified in Section 7.6.
"Fabral Purchase" means the purchase on the Effective Date by U.S.
Operating Co. of all of the Stock of Fabral Holdings pursuant to the Fabral
Purchase Agreement.
"Fabral Purchase Agreement" means the Stock Purchase Agreement, dated
as of April 28, 1997, among the Sellers referred to therein, Genstar Capital
Corporation, Fabral Holdings, Fabral, Inc. and U.S. Operating Co., as amended,
supplemented or modified from time to time to the extent permitted by this
Agreement.
"Fabral Purchase Documents" means the Fabral Purchase Agreement, the
Fabral Restructuring Agreement and each other agreement, document or instrument
executed with respect to the transactions contemplated by the Fabral Purchase
Agreement or the Fabral Restructuring Agreement.
"Fabral Restructuring Agreement" means a Restructuring Agreement, in
substantially the form of Exhibit 5.08 to the Fabral Purchase Agreement, as
amended, supplemented or modified from time to time to the
33
extent permitted by this Agreement.
"Fair Market Value" means (i) with respect to any asset (other than a
marketable security) at any date, the value of the consideration obtainable in a
sale of such asset at such date assuming a sale by a willing seller to a willing
purchaser dealing at arm's length and arranged in an orderly manner over a
reasonable period of time having regard to the nature and characteristics of
such asset, as reasonably determined by the management of such Person for assets
having a value of less than $500,000 and otherwise by the Board of Directors of
such Person, or, if such asset shall have been the subject of a relatively
contemporaneous appraisal by an independent third party appraiser, the basic
assumptions underlying which have not materially changed since its date, as set
forth in such appraisal, and (ii) with respect to any marketable security at any
date, the closing sale price of such security on the business day (on which any
national securities exchange or any internationally recognized securities
exchange in a European Core Country is open for the normal transaction of
business) next preceding such date, as appearing in any published list of any
national securities exchange or in the National Market List of the National
Association of Securities Dealers, Inc. or any internationally recognized
securities exchange in a European Core Country or, if there is no such closing
sale price of such security, the final price for the purchase of such security
at face value quoted on such business day by a financial institution of
recognized standing which regularly deals in securities of such type.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day 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.
"Final Maturity Date" means June 30, 2004.
"First Maturity Date" means June 30, 2002.
"Fiscal Quarter" means each of the three month periods ending on March
31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December 31.
34
"Fixed Charges" means, for any Person for any period, the sum of
(without duplication) (i) the Cash Interest Expense of such Person for such
period, (ii) the principal amount of Indebtedness for borrowed money of such
Person and each of its Subsidiaries determined on a consolidated basis in
conformity with GAAP having a scheduled due date during such period, (iii) all
amounts having a scheduled due date during such period payable by such Person
and each of its Subsidiaries determined on a consolidated basis in conformity
with GAAP on Capitalized Lease Obligations, (iv) all cash dividends paid or
required to be paid by such Person and its consolidated Subsidiaries on
preferred stock in respect of such period, excluding those paid to a Person to
enable such Person to pay taxes and ordinary operating expenses, and (v) the
total income tax liability actually payable by such Person in respect of such
period; provided, however, that no Costs set forth on Schedule 3.1(s)-1 shall be
included in Fixed Charges.
"Foreign Collateral Documents" means the Euramax Nantissement, the
Euramax Stock (U.K.) Pledge Agreement, the Euramax Deed of Pledge, the
Additional Euramax Deed of Pledge, the Dutch Holdings Nantissement, the Dutch
Collateral Documents, the U.K. Collateral Documents and any other document
executed by Euramax or any of its Subsidiaries, excluding any Domestic
Collateral Document, pursuant to which Euramax or such Subsidiary shall pledge,
mortgage or grant any Lien to secure any of the Obligations or Guarantied
Obligations, as any such other document may be amended, supplemented or
otherwise modified from time to time.
"Foreign Holding Company" means each of U.K. Holdings, Dutch Holdings,
U.K. Company until a Permitted U.K. Operating Co. Share Transfer, and Dutch
Company.
"Foreign Loan Party" means each of Euramax, each Foreign Holding
Company, U.K. Operating Co. and each of its Operating Company Subsidiaries,
Dutch Operating Co. and each of its Operating Company Subsidiaries, and each
other direct or indirect Subsidiary of Euramax other than a Domestic Loan Party,
French Holdings and the direct or indirect Subsidiaries of French Holdings.
"Foreign Pension Plan" means each retirement, redundancy, statutory or
voluntary profit sharing plan or statutory severance plan or arrangement
covering individuals who are employed by any Loan Party or its Affiliate
primarily outside of the United States and as to which any Loan Party has any
direct or indirect obligation or liability for unfunded benefits thereunder.
"French Holdings" means Euramax European Holdings, S.A., a company
organized under the laws of the Republic of France and, until the
35
Effective Date, a wholly owned, direct Subsidiary of Euramax and from and
after the Effective Date, 74.23% owned by Dutch Holdings and 25.77% owned by
Euramax (in each case reduced by the Qualifying Shares in French Holdings
then outstanding).
"French Intercompany Note" means the promissory note of French
Holdings, dated the Closing Date, payable to Dutch Holdings evidencing a
$4,500,000 loan made on the Closing Date by Dutch Holdings to French Holdings
with the proceeds of the issuance on the Closing Date of Senior Subordinated
Notes, which French Intercompany Note will be cancelled on the Effective Date.
"French Note Conversion" means the capital increase of French
Holdings, to be completed on the Effective Date, in an amount of FF.28,744,400
(i.e., the equivalent in French Francs, rounded up to the lower hundred French
Francs, as determined on the basis of the exchange rate published in Paris on
June 30, 1997, of the sum of $4,500,000 and accrued interests thereon at a rate
of 11.5% per year from September 25, 1996 to June 30, 1997), consisting of
287.744 shares with a par value of FF.100 each, entirely subscribed by Dutch
Holdings and paid up by way of set-off of the debt from French Holdings to Dutch
Holdings under the French Intercompany Note, which will represent approximately
74.23% of the Stock of French Holdings on the Effective Date.
"French Operating Co." means Euramax Industries S.A. (formerly Alumax
Industries S.A.), a company organized under the laws of the Republic of France
and a wholly owned, direct Subsidiary of French Holdings.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board (other than, solely for
purposes of the calculations required to be made pursuant to Article V,
Accounting Principles Board Opinions 16 and 17 with respect to the Purchase) and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board ("FASB"), or in such
other statements by such other entity as may be in general use by significant
segments of the accounting profession, which are applicable to the circumstances
as of the date of determination except that, for purposes of Article V and the
definitions used therein (but not when used other than in Article V), GAAP shall
be determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the audited financial
statements referred to in Section 4.5(a).
"General Purpose Revolving Credit Loan" means a Revolving Credit Loan
made to any Operating Company the proceeds of which are used to
36
finance working capital requirements of such Operating Company or an
Operating Company Subsidiary thereof or for general corporate purposes,
excluding the financing of any of the Transactions and the payment of any
Costs, of such Operating Company or an Operating Company Subsidiary thereof.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantied Obligations" means:
(a) as to Euramax and each Domestic Loan Party, all Obligations,
whether now or hereafter existing and whether for principal, interest, fees,
expenses or otherwise, and any and all expenses (including, without limitation,
the reasonable fees and expenses of counsel) incurred by any of the Guarantied
Parties in enforcing any rights under the Guaranty or any other Collateral
Document made by Euramax or such Domestic Loan Party excluding, in the case of
Euramax, all Obligations incurred to finance the Costs in connection with the
acquisition of its Stock;
(b) as to each of (i) U.K. Holdings, (ii) Dutch Holdings, (iii) U.K.
Company, (iv) Dutch Company, (v) U.K. Operating Co., (vi) Ellbee Ltd. and (vii)
Coated Products U.K.: (x) all Obligations, whether now or hereafter existing
and whether for principal, interest, fees, expenses or otherwise, excluding the
Excluded U.S. Liabilities, and (y) any and all expenses (including, without
limitation, the reasonable fees and expenses of counsel) incurred by any
Guarantied Parties in enforcing any rights under the Guaranty or any other
Collateral Document made by such Loan Party; and
(c) as to Dutch Operating Co. and each Subsidiary of Dutch Operating
Co.: (i) all Obligations, whether now or hereafter existing and whether for
principal, interest, fees, expenses or otherwise, excluding the Excluded U.S.
Liabilities and all Obligations incurred to finance the Dutch Entities Purchase,
and (ii) any and all expenses (including, without limitation, the reasonable
fees and expenses of counsel) incurred by any Guarantied Parties in enforcing
any rights under the Guaranty made by such Loan Party.
"Guarantied Parties" means the Agent, the U.K. Trustee, the Issuer,
the Lenders, each Currency Swap Party that has entered into the Agency
Agreement, and their respective successors and assigns.
"Guarantor" means each Domestic Loan Party and each Foreign Loan
Party.
37
"Guaranty" means the Euramax Guaranty, a Domestic Guaranty, a Dutch
Guaranty or a U.K. Guaranty.
"Hazardous Material" means any substance, material or waste which is
regulated as hazardous, toxic or dangerous (or words of similar import) by any
Governmental Authority of the United States or other national government,
including, without limitation, any material, substance or waste which is defined
as a "hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous waste," "restricted hazardous waste," "contaminant," "toxic waste" or
"toxic substance", including, but not limited to, petroleum, petroleum products,
asbestos, urea formaldehyde and polychlorinated biphenyls.
"Holding Company Investor" has the meaning specified in Section
3.1(b).
"Improvements" has the meaning specified in Section 4.22(c).
"Indebtedness" of any Person means (i) all indebtedness of such Person
for borrowed money (including, without limitation, reimbursement and all other
obligations with respect to surety bonds, letters of credit and bankers'
acceptances, whether or not matured) or for the deferred purchase price of
property or services, (ii) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, (iii) all indebtedness of such Person
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), (iv) all Capitalized
Lease Obligations of such Person, (v) all Contingent Obligations of such Person,
(vi) all obligations of such Person to purchase, redeem, retire, defease or
otherwise acquire for value any Stock or Stock Equivalents of such Person,
valued, in the case of redeemable preferred stock, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (vii) all obligations of such Person under Interest Rate Contracts
and Currency Contracts, (viii) all Indebtedness referred to in clause (i), (ii),
(iii), (iv), (v), (vi) or (vii) 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 (including, without limitation, accounts and
general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, (ix) in the case
of the Loan Parties, the Obligations and Guarantied Obligations, (x) all
liabilities of such Person for the return of deposits or payments on account,
(xi) the aggregate present value of all unfunded accrued benefit liabilities of
such Person under each Domestic Pension Plan and Foreign Pension Plan (as
calculated using reasonable actuarial assumptions
38
reasonably acceptable to the Agent), (xii) all liabilities of such Person
that would be shown on a balance sheet of such Person prepared in conformity
with GAAP, and (xiii) all "Indebtedness" as defined in any Senior
Subordinated Debt Document. For purposes of determining the amount of
Indebtedness of any Person under any Currency Contract, the amount of any
obligations of such Person under such Currency Contract shall be the amount
that would be payable by such Person on the termination of such Currency
Contract in accordance with xxxx to market procedures.
"Indemnitee" means (a) the Agent, the U.K. Trustee and, except for
purposes of Section 9.5, each Lender and the Issuer (but excluding any Lender,
the Agent or any Affiliate thereof solely in its capacity as a holder of any
equity of Euramax or of any Senior Subordinated Notes), and (b) the Agent's, the
U.K. Trustee's and, except for purposes of Section 9.5, each such Lender's and
the Issuer's respective Affiliates, and the directors, officers, employees,
agents, attorneys, consultants and advisors of or to any of the foregoing
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article III hereof or of the Existing Credit Agreement).
"Initial Existing Specified Leases" means, collectively, those Leases
relating to the properties located at (i) 0000 Xxxx 00xx Xxxxxx, Xxxxxxx Xxxx,
Xxxxxxxx, and (ii) 0000 Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxx.
"Initial New Leases" means leases of property located at: (i) 0000
Xxxxxxxx Xxx, Xxxxx Xxxx, Xxxx, (ii) 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx and real property located in Rathdrum, Kootenai County, Idaho.
"Initial Specified Leases" means, collectively, the Initial Existing
Specified Leases and the Initial New Leases.
"Intercompany Notes" means (a) the promissory note, dated the Closing
Date, of U.S. Holdings, payable to Euramax and evidencing an $80,200,000 loan
made on the Closing Date by Euramax to U.S. Holdings with the proceeds of the
issuance on the Closing Date of Senior Subordinated Notes, (b) the French
Intercompany Note, and (c) a promissory note, dated the Closing Date, of Dutch
Company, payable to Dutch Holdings and evidencing a $26,400,000 loan made on the
Closing Date by Dutch Holdings to Dutch Company with the proceeds of the
issuance on the Closing Date of Senior Subordinated Notes, in each case as
described on Schedule V and as the same may hereafter be amended, supplemented
or otherwise modified to the extent permitted by Section 7.8, the proceeds of
which loans, together with the remaining proceeds of the issuance on the Closing
Date of the Senior Subordinated Notes, were applied on the Closing Date to the
payment of the
39
purchase price for the Prior Purchase.
"Interest Period" means, in the case of any Eurocurrency Loan,
(i) initially, the period commencing on the date such Eurocurrency Loan is made
or on the date of conversion of a Base Rate Loan to such Eurocurrency Loan and,
except as otherwise provided in Section 2.3, ending one, three or six months
thereafter as selected by a Borrower in its Notice of Borrowing or IP Notice or
in its Notice of Conversion or Continuation given to the Agent pursuant to
Section 2.3 or 2.8, and (ii) thereafter, if such Loan is continued, in whole or
in part, as a Eurocurrency Loan pursuant to Section 2.8, a period commencing on
the last day of the immediately preceding Interest Period therefor and, except
as otherwise provided in Section 2.8, ending one, three or six months thereafter
as selected by such Borrower in its Notice of Conversion or Continuation or IP
Notice given to the Agent pursuant to Section 2.8; provided, however, that:
(a) if any Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless the result of such extension would be to extend such
Interest Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a subsequent calendar month;
(c) no Borrower may select any Interest Period which ends after the
date of a scheduled principal payment on the U.S. Dollar Term A Loans, the U.S.
Dollar Term B Loans, the U.S. Dollar Term C Loans, the Dutch Company Term Loans,
the U.K. Operating Co. Term Loans or the Revolving Credit Loans made to it as
set forth in Article II (each a "Loan Tranche") unless, after giving effect to
such selection, the aggregate unpaid principal amount of Eurocurrency Loans made
to such Borrower comprising such Loan Tranche for which Interest Periods end
after such scheduled principal payment plus the aggregate principal amount of
Base Rate Loans made to such Borrower in the case of Revolving Credit Loans made
in Dollars, the U.S. Dollar Term A Loans, the U.S. Dollar Term B Loans or the
U.S. Dollar Term C Loans shall be equal to or less than the principal amount to
which such Loans comprising such Loan Tranche are required to be reduced after
such scheduled principal payment is made;
(d) no Borrower may select any Interest Period in respect of Loans
having an aggregate principal amount of less than $500,000 (or the equivalent
thereof in the applicable Alternative Currency); and
40
(e) there shall be outstanding at any one time no more than 10
Interest Periods in the aggregate.
"Interest Rate Contracts" means interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance, and other agreements or arrangements designed to provide protection
against fluctuations in interest rates.
"Inventory" has the meaning specified in the Domestic Security
Agreements and the Foreign Collateral Documents.
"Investment" means, as to any Person, any loan or advance to any other
Person, or the ownership, purchase or other acquisition of any Stock, Stock
Equivalents, other equity interest, obligations or other securities of, or all
or substantially all of the assets of, any other Person or all or substantially
all of the assets constituting the business of a division, branch or other unit
operation of any other Person, or the entering into by such Person of any joint
venture or partnership with, or the making or maintaining of, any capital
contribution to, or other investment in, any other Person or the incorporation
or organization of any Subsidiary which was not in existence on the Closing
Date.
"IP Notice" has the meaning specified in Section 2.8.
"IRS" means the Internal Revenue Service, or any successor thereto.
"Laminated Products Acquisition" means the purchase made on March 28,
1997 by Building Products of all of the Stock of Laminated Products for the
Laminated Products Purchase Price.
"Laminated Products Deferred Payment" means an aggregate of
$1,250,000, adjusted for working capital, payable on January 1, 1998 and
discounted to net present value using a discount rate of 11.25%.
"Laminated Products Purchase Price" means the sum of (a) a cash
purchase price of $2,250,000 in the aggregate, $1,000,000 of which was paid on
the date of consummation of the Laminated Products Acquisition and the remainder
of which shall consist of the Laminated Products Deferred Payment, plus (b) up
to $1,500,000 in cash, which was paid on the date of consummation of the
Laminated Products Acquisition and used to repay in full all Indebtedness of
Laminated Products.
"Leases" means, with respect to any Loan Party or any of its
Subsidiaries, all of those leasehold estates in real property now or hereafter
41
owned by such Loan Party or such Subsidiary, as lessee, as such may be amended,
supplemented or otherwise modified from time to time to the extent permitted by
this Agreement.
"Legal Proceedings" means any judicial, administrative or arbitral
actions, suits, proceedings (public or private), claims or governmental
proceedings.
"Letter of Credit" has the meaning specified in Section 2.19.
"Letter of Credit Obligations" means, at any time, all liabilities at
such time of any Operating Company to the Issuer with respect to Letters of
Credit, whether or not any such liability is contingent, and includes the sum of
(i) the Reimbursement Obligations at such time and (ii) the Letter of Credit
Undrawn Amounts at such time.
"Letter of Credit Reimbursement Agreement" has the meaning specified
in Section 2.19(c).
"Letter of Credit Request" has the meaning specified in Section
2.19(d).
"Letter of Credit Undrawn Amounts" means, at any time, the aggregate
undrawn face amount of all Letters of Credit outstanding at such time.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including, without limitation,
any conditional sale or other title retention agreement, the interest of a
lessor under a Capitalized Lease Obligation, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing,
under the Uniform Commercial Code or comparable law of any jurisdiction, of any
financing statement naming the owner of the asset to which such Lien relates as
debtor.
"Loan" means a Revolving Credit Loan, a Swing Loan or a Term Loan made
by a Lender to a Borrower pursuant to Article II, and refers to a Base Rate Loan
or a Eurocurrency Loan.
"Loan Documents" means, collectively, (i) this Agreement, the Domestic
Amendatory Agreement, the Notes, the Guaranties, each Process Agent letter
delivered hereunder or under any other Loan Document, each Letter of Credit
Reimbursement Agreement, the Collateral Documents and the U.K.
42
Consent Agreement, (ii) provided that the Currency Swap Party under any
Currency Contract with any Loan Party shall have entered into the Agency
Agreement, such Currency Contract, (iii) the Agency Agreement, and (iv) each
certificate, agreement or document executed by a Loan Party and delivered to
the Agent, the U.K. Trustee, the Issuer, any Lender or any such Currency Swap
Party in connection with or pursuant to any of the foregoing other than the
Related Documents.
"Loan Party" means each Domestic Loan Party, each Foreign Loan Party
and each Subsidiary and Affiliate of any such Person (excluding French Holdings)
who executes and delivers a Loan Document.
"Majority Lenders" means, at any time, Lenders having at least a
majority of the unused Commitments and outstanding Loans, excluding Swing Loans,
at such time, provided that, for purposes of this definition, no outstanding
Swing Loan shall constitute the usage of any Lender's Commitments. For purposes
of determining Majority Lenders, any amounts denominated in an Alternative
Currency shall be the equivalent thereof in Dollars (as determined in accordance
with Section 2.17).
"Material Adverse Change" means a material adverse change in any of
(i) the condition (financial or otherwise), business, performance, prospects,
operations or properties of Euramax and its Subsidiaries, taken as one
enterprise, (ii) the legality, validity or enforceability of any Loan Document
or any Related Document, (iii) the perfection or priority of the Liens granted
pursuant to the Collateral Documents, (iv) the collective ability of Dutch
Holdings, U.K. Holdings and their respective Subsidiaries to either (A) repay
their respective Guarantied Obligations, Company Obligations, U.K. Operating Co.
Obligations and Dutch Operating Co. Obligations, or (B) perform their
obligations under the Loan Documents, (v) the collective ability of the Domestic
Loan Parties to either (A) repay the Obligations or Guarantied Obligations, or
(B) perform their obligations under the Loan Documents, or (vi) the rights and
remedies of the Lenders, the Issuer or the Agent under the Loan Documents.
"Material Adverse Effect" means an effect that results in or causes,
or has a reasonable likelihood of resulting in or causing, a Material Adverse
Change.
"Maximum Amount of Revolver Liabilities" means, at any time, the
lesser of (a) the Borrowing Base at such time and
(b) the Revolving Credit Commitments at such time.
"Maximum Amount of Revolver Liabilities of U.S. Operating Co." means,
at any time, the lesser of (a) the U.S. Borrowing Base at such time and
43
(b) the Revolving Credit Commitments at such time.
"Multiemployer Plan" means, as of any applicable date, a multiemployer
plan, as defined in Section 4001(a)(3) of ERISA, and to which any Loan Party,
any of its Subsidiaries or any ERISA Affiliate is making, is obligated to make,
or within the six-year period ending at such date, has made or been obligated to
make, contributions on behalf of participants who are or were employed by any of
them.
"Net Income (Loss)" means, for any Person for any period, the
aggregate of net income (or loss) from continuing operations of such Person and
its Subsidiaries for such period, determined on a consolidated basis in
conformity with GAAP.
"Net Interest Expense" means, for any Person for any period, gross
interest expense of such Person and its Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP, less the following for such
Person and its Subsidiaries determined on a consolidated basis in conformity
with GAAP: (a) the sum of (i) interest capitalized during construction for such
period, (ii) interest income for such period, and (iii) gains for such period on
Interest Rate Contracts (to the extent not included in interest income above and
to the extent not deducted in the calculation of such gross interest expense),
plus the following for such Person and its Subsidiaries determined on a
consolidated basis in conformity with GAAP: (b) losses for such period on
Interest Rate Contracts (to the extent not included in such gross interest
expense and to the extent not excluded from interest income); provided, however,
that the Costs set forth or Schedule 3.1(s)-1 shall not be included in Net
Interest Expense.
"Non-Cash Interest Expense" means, for any Person for any period, the
sum of the following amounts to the extent included in Net Interest Expense of
such Person for such period: (i) the amount of amortized debt discount, (ii)
charges relating to write-ups or write-downs in the book or carrying value of
existing Indebtedness, (iii) the amortization of upfront costs or fees for such
period associated with the financing contemplated hereby and Interest Rate
Contracts (to the extent not included in gross interest expense) and (iv)
interest paid in kind on other Indebtedness permitted by Section 7.2(a).
"Non-Domestic Subsidiary" means, as to any Person, any Subsidiary of
such Person other than a Domestic Subsidiary.
"Notes" means, collectively, the Revolving Credit Notes and the Term
Notes.
44
"Notice of Borrowing" has the meaning specified in Section 2.3(a).
"Obligation Currency" has the meaning specified in Section 10.9.
"Obligations" means the Loans, the Letter of Credit Obligations and
all other advances, debts, liabilities, obligations, covenants and duties owing
by any Loan Party to the Agent, the U.K. Trustee, any Lender, the Issuer, any
Affiliate of any of them, any Indemnitee or any Currency Swap Party that has
executed the Agency Agreement, of every type and description, present or future,
whether or not evidenced by any note, guaranty or other instrument, arising
under this Agreement or any other Loan Document, whether or not for the payment
of money, loan, guaranty, indemnification, foreign exchange transaction,
Currency Contract, Interest Rate Contract or in any other manner, whether direct
or indirect (including, without limitation, those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired, but excluding any obligations owing to any Lender or the
Agent (or any Affiliate of any thereof) solely in its capacity as a holder of
any equity of Euramax or any Senior Subordinated Notes. The term "Obligations"
includes, without limitation, (i) all interest, charges, expenses, fees,
attorneys' fees and disbursements and any other sum chargeable to any Loan Party
under this Agreement or any other Loan Document, and (ii) all Company
Obligations, all Dutch Operating Co. Obligations, all U.K. Operating Co.
Obligations and all Excluded U.S. Liabilities.
"Operating Company" means each of U.S. Operating Co., U.K. Operating
Co. and Dutch Operating Co.
"Operating Company Subsidiary" means (a) as to U.S. Operating Co.,
each of (i) Building Products, (ii) Coated Products U.S., (iii) Amerimax Home
Products, Inc. (formerly Euramax Home Products, Inc.), a Delaware corporation
and a direct, wholly owned Subsidiary of U.S. Operating Co., (iv) Laminated
Products, (v) Fabral Holdings, and (vi) Fabral, Inc.; (b) as to U.K. Operating
Co. (or, after a Permitted Ellbee Share Transfer, U.K. Company or, if both such
Permitted Ellbee Share Transfer and a Permitted U.K. Operating Co. Share
Transfer shall have been consummated, U.K. Holdings), Ellbee Ltd. and, as to
U.K. Operating Co. (or, after a Permitted Coated Products Share Transfer, U.K.
Company or, after both such Permitted Coated Products Share Transfer and a
Permitted U.K. Operating Co. Share Transfer, U.K. Holdings), Coated Products
U.K.; (c) as to Dutch Operating Co., Coated Products, B.V.; and (d) as to any
Loan Party referred to in clause (a), (b) or (c) above, but without waiving any
provision of this Agreement or any other Loan Document, any Person who, after
the Effective Date, shall become a wholly owned Subsidiary of such Loan Party.
"Order" means any order, injunction, judgment, decree, ruling,
45
assessment or arbitration award.
"Other Taxes" has the meaning specified in Section 2.15(b).
"Payment Office" means, for Dollars, the principal office of the Agent
in New York City, located on the date hereof at the address of the Agent
referred to in Section 10.2, and, for any Alternative Currency, such office of
the Agent as shall be from time to time selected by the Agent and notified by
the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means a plan, other than a Multiemployer Plan, which is
covered by Title IV of ERISA or Code Section 412 and which any Loan Party, any
of its Subsidiaries or any ERISA Affiliate maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or were employed
by any of them.
"Permit" means any permit, approval, authorization, license, variance,
registration, permission or consent required from a Governmental Authority under
an applicable Requirement of Law.
"Permitted Coated Products Share Transfer" means a Proposed Coated
Products Transfer consummated in a (and as defined in the definition of)
Permitted Share Transfer.
"Permitted Ellbee Share Transfer" means a Proposed Ellbee Transfer
consummated in a (and as defined in the definition of) Permitted Share Transfer.
"Permitted Existing Indebtedness" means all Indebtedness listed on
Schedule 7.2(a).
"Permitted Merger" means a Proposed Merger as to which each of the
following conditions shall have been satisfied (for purposes of the following,
the term "Merger Party" means each party to such Proposed Merger, the term
"Surviving Party" means, in the case of a Proposed Merger other than of Ellbee
Ltd. and Coated Products U.K., the survivor in such Proposed Merger, the term
"Consolidated Entity" means, in the case of a Proposed Merger of Ellbee Ltd. and
Coated Products U.K., Ellbee Ltd., if it is the purchasing party therein, and
Coated Products U.K., if it is the purchasing party therein, and the term
"Seller" means Ellbee Ltd., if it is the selling party in
a Proposed Merger of Ellbee Ltd. and Coated Products U.K., and Coated
Products U.K., if it is the selling party in
46
such a Proposed Merger):
(a) The documentation for or relating to each Proposed Merger shall
be in form and substance satisfactory to the Agent;
(b) The name of the Surviving Party in each Proposed Merger, in the
case of a Proposed Merger other than of Ellbee Ltd. and Coated Products U.K.,
shall be the name of the Merger Party that merges with and into the other Merger
Party; and
(c) On or prior to the effective date of each Proposed Merger (the
"Merger Effective Date" thereof), the Agent shall have received each of the
following documents, each dated such Merger Effective Date and in form and
substance satisfactory to the Agent and, except for any instruments or stock
powers referred to below, in sufficient copies for the Issuer and each Lender,
together with, unless waived by the Agent, a certified copy of an English
translation of each below-referenced document submitted in a language other than
English:
(i) A certificate of a Responsible Officer of each Merger Party
and each other Loan Party referred to in this subsection (c)
certifying (A) the resolutions of its board of directors (or other
governing body) approving such Proposed Merger, all documentation
therefor and the transactions contemplated thereby, and the Loan
Documents and other documents and certificates required to be
delivered by such Merger Party or such other Loan Party pursuant
hereto and the transactions contemplated hereby and thereby; (B) all
documents evidencing other necessary corporate action and required
governmental and third party approvals, licenses and consents with
respect to such Proposed Merger and the documentation therefor and the
Loan Documents and other documents and certificates required to be
delivered by such Merger Party or such other Loan Party pursuant
hereto and the transactions contemplated hereby and thereby; (C) in
the case of the Surviving Party or Consolidated Entity in such
Proposed Merger, a copy of its organizational documents as in effect
on such Merger Effective Date after giving effect to such Proposed
Merger; (D) the names and true signatures of each of its officers who
has been authorized to execute and deliver any Loan Document or other
document required pursuant hereto to be executed and delivered by or
on behalf of such Merger Party or such other Loan Party; and (E) a
complete and correct copy of each document executed or delivered in
connection with such Proposed Merger or evidencing the same;
47
(ii) In the case of a Proposed Merger of Ellbee Ltd. and
Coated Products U.K., (A) evidence that all assets and liabilities of
the Seller have been purchased by the Consolidated Entity and evidence
of the winding-up of the Seller, (B) if required by the Agent, a deed
of novation, in form and substance satisfactory to the Agent, duly
executed by the Consolidated Entity, the other Loan Parties and the
Agent, on behalf of itself, the Issuer, each Lender and each Currency
Swap Party that has entered into the Agency Agreement (which deed of
novation shall constitute a U.K. Collateral Document and a Loan
Document), pursuant to which the Consolidated Entity shall assume all
obligations, rights and benefits of the Seller under the Loan
Documents, (C) supplemental schedules to the Consolidated Entity's
U.K. Debenture, duly executed by the Consolidated Entity, which
schedules shall set forth the Real Estate specified in Schedule 1 to
the Seller's U.K. Debenture and the patents and trademarks specified
in Schedule 2 to the Seller's U.K. Debenture, and which supplemental
schedules shall be delivered to the U.K. Trustee, and (D) with respect
to all property and assets of the Seller that are subject to the
Seller's U.K. Debenture, evidence of the giving of all notices, the
receipt of all acknowledgements and the making of all registrations
with respect to such property and assets of the type referred to in
Section 3.1(i)(A) necessary to perfect the Lien of the U.K. Trustee
therein after the consummation of such Proposed Merger;
(iii) In the case of any Proposed Merger other than of Ellbee
Ltd. and Coated Products U.K. or of French Operating Co. or any of its
Subsidiaries, (A) an amendatory agreement duly executed by the Loan
Parties, the Lenders, the Issuer and the Agent and in form and
substance satisfactory to the Agent and the Majority Lenders, pursuant
to which this Agreement, including Article I hereof, shall be amended
to give effect to such Proposed Merger and to the assumption by the
Surviving Party therein of all Loan Documents to which the other
Merger Party is a party and of all rights and obligations of such
other Merger Party hereunder and under the other Loan Documents, (B)
an assumption agreement (an "Assumption Agreement") duly executed by
the Surviving Party in such Proposed Merger (which Assumption
Agreement shall constitute a Loan Document) and in form and substance
satisfactory to the Agent pursuant to which such Surviving Party shall
assume in writing each Foreign Collateral Document, Guaranty, Note and
other Loan Document to which the other Merger Party is a party, and
(C) if such other Merger Party is a
48
party to a Dutch Mortgage, a Dutch Mortgage duly executed by the Surviving
Party and covering the Real Estate subject to the Dutch Mortgage of such
other Merger Party (a "Replacement Mortgage");
(iv) In the case of each Proposed Merger, such documentation
(including supplementary or additional Guaranties, Collateral
Documents and other Loan Documents ("Supplementary and Additional
Documents")) as shall be necessary or, in the opinion of the Agent in
its sole judgment exercised reasonably, desirable to ensure under all
applicable Requirements of Law and otherwise that:
(A) each Collateral Document, Guaranty, Note and other Loan
Document to which either Merger Party in such Proposed Merger is a
party and, in the case of a Proposed Merger of Dutch Operating Co.
with and into Dutch Company or of Coated Products, B.V. with and into
Dutch Company, each Intercompany Note issued by Dutch Company is the
legal, valid and binding obligation of such Surviving Party, or of the
Consolidated Entity therein, as the case may be, and
(B) each such Collateral Document to which either Merger Party
in such Proposed Merger is a party, each Replacement Mortgage and, in
the case of a Proposed Merger of French Operating Co. with and into
French Holdings, each of the Dutch Holdings Nantissement and the
Euramax Nantissement continues to create or, in the case of any
Replacement Mortgage, creates a valid and perfected first priority
Lien on all Collateral covered thereby as security for (after giving
effect to any Assumption Agreement, any Replacement Mortgage and any
Supplementary and Additional Documents), (w) in the case of a Proposed
Merger of Dutch Operating Co. with and into Dutch Company, all
Guarantied Obligations of Dutch Company and all Company Obligations,
(x) in the case of Proposed Merger of Coated Products, B.V. with and
into Dutch Company (if such Proposed Merger is effected after a
Permitted Merger of Dutch Operating Co. with and into Dutch Company),
all Guarantied Obligations of Dutch Company and all Company
Obligations, (y) in the case of a Proposed Merger of Coated Products,
B.V. with and into Dutch Operating Co. (if such Proposed Merger is
effective prior to a Permitted Merger of Dutch Operating Co. with and
into Dutch Company), all Guarantied Obligations of Dutch Operating Co.
and all Dutch Operating Co. Obligations, and (z) in the case of a
Proposed Merger of French Operating Co. with and into French
49
Holdings, all Guarantied Obligations of Dutch Holdings and Euramax,
respectively;
(v)(A) From each of Dutch Holdings and Dutch Company in the
case of either a Proposed Merger of Dutch Operating Co. into Dutch
Company or (if such Proposed Merger has been effected) of Coated
Products, B.V. into Dutch Company, (B) from each of Dutch Company and
Dutch Operating Co. in the case of a Proposed Merger of Coated
Products, B.V. into Dutch Operating Co., (C) from each of Dutch
Holdings, Euramax and French Holdings in the case of a Proposed Merger
of French Operating Co. into French Holdings, and (D) from U.K.
Operating Co. (or, if either a Permitted Ellbee Share Transfer or a
Permitted Coated Products Share Transfer has been effected but a
Permitted U.K. Operating Co. Share Transfer has not been effected,
from U.K. Company, or, if either a Permitted Ellbee Share Transfer or
a Permitted Coated Products Share Transfer has been effected and a
Permitted U.K. Operating Co. Share Transfer has also been effected,
from U.K. Holdings) in the case of a Proposed Merger of Ellbee Ltd.
and Coated Products U.K. (Dutch Holdings in the case of either such
Proposed Merger into Dutch Company, Dutch Company in the case of such
Proposed Merger into Dutch Operating Co., Euramax and Dutch Holdings
collectively, in the case of a Proposed Merger of French Operating Co.
with and into French Holdings, and U.K. Operating Co., U.K. Company or
U.K. Holdings, as applicable, in the case of such Proposed Merger of
Ellbee Ltd. and Coated Products U.K., being the "Parent Company" of
the Surviving Party therein or of the Consolidated Entity therein, as
the case may be), each of the following:
(x) All documents, certificates, stock powers, powers of
attorney, incumbency certificates, declarations of pledge,
confirmations of pledge, services by a bailiff, registrations, forms
and evidence of the type referred to (1) in clause (B) of Section
3.1(i), in the case of any Proposed Merger in which the Merger Parties
are any of Dutch Company, Dutch Operating Co. or Coated Products,
B.V., and (2) in clause (C) of Section 3.1(i), in the case of a
Proposed Merger of French Operating Co. with and into French Holdings,
necessary in connection with the continued first priority Lien of the
Agent in the Pledged Shares of the Consolidated Entity or Surviving
Party in such Proposed Merger, as the case may be, and, in the case of
a Proposed Merger in which Dutch Company is a Merger Party, the
Intercompany Notes issued by Dutch Company, in each case executed by
the appropriate parties; and
50
(y) Evidence that all other action necessary or, in the opinion
of the Agent, desirable to perfect and, protect the Lien created by
each Pledge Agreement covering any Pledged Shares or Intercompany
Notes referred to in clause (x) above, each Pledge Agreement required
to be assumed by the Surviving Party in such Proposed Merger and each
Pledge Agreement made by the Parent Company of such Surviving Party
have been taken;
(vi) A letter from the Process Agent, in substantially the form of
Exhibit L hereto, agreeing to act as Process Agent for the Surviving Party
or the Consolidated Entity, as the case may be, in such Proposed Merger and
to forward forthwith all process received by it to such Surviving Party or
the Consolidated Entity, as the case may be;
(vii) A certificate of a Responsible Officer of Euramax, each Merger
Party in such Proposed Merger and each Parent Company, each stating that
the following statements are true on and as of such Merger Effective Date
after giving effect to the consummation of such Proposed Merger:
(A) The representations and warranties of such Loan Party
contained in Article IV and of such Loan Party and its Subsidiaries in
the other Loan Documents are correct on and as of such Merger
Effective Date as though made on and as of such Merger Effective Date;
(B) No Default or Event of Default has occurred and is
continuing or could reasonably be expected to result from such
Proposed Merger or any of the transactions contemplated thereby or
hereby;
(C) All necessary governmental and third party approvals
(including any necessary approvals from all Governmental Authorities)
required to be obtained in connection with such Proposed Merger and
the transactions contemplated thereby and hereby have been obtained
and remain in effect, and all applicable waiting periods have expired
without any action being taken by any competent authority which
restrains, prevents, impedes, delays or imposes materially adverse
conditions upon such Proposed Merger, the transactions contemplated
thereby or hereby or the exercise of control by such Parent Company
over the Surviving Party or the Consolidated Entity, as the case may
be, in such Proposed Merger;
51
(D) There exists no judgment, order, injunction or other
restraint prohibiting or, in the reasonable judgment of the Agent or
the Majority Lenders, imposing materially adverse conditions upon such
Proposed Merger or any of the transactions contemplated thereby or
hereby or the exercise of control by such Parent Company over the
Surviving Party or the Consolidated Entity, as the case may be, in
such Proposed Merger;
(E) There exists no claim, action, suit, investigation or
proceeding pending or, to the knowledge of any Loan Party, threatened
in any court or before any arbitrator or Governmental Authority which
relates to such Proposed Merger or any of the transactions
contemplated thereby or hereby or which, if adversely determined, has
a reasonable likelihood of having a material adverse effect on such
Proposed Merger or any of the transactions contemplated thereby or
hereby or a Material Adverse Effect;
(F) There will not occur as a result of the consummation of such
Proposed Merger or any of the transactions contemplated thereby or
hereby any default (or any event which with the giving of notice or
lapse of time or both would be a default) under any Contractual
Obligations of or relating to any Loan Party or any of its
Subsidiaries other than, except in the case of any Related Document,
defaults that could not, in the aggregate or individually reasonably
be expected to have a Material Adverse Effect or that could not
reasonably be expected to result in a Material Adverse Change; and
(G) Each document for or related to such Proposed Merger is in
full force and effect, the representations and warranties contained
therein are true and correct in all material respects and all
conditions set forth therein have been fulfilled or, with the consent
of the Agent and the Majority Lenders, waived by the parties thereto;
(viii) Favorable opinions of counsel to the Loan Parties, each in
form and substance satisfactory to the Agent and as to such matters as any
Lender or the Issuer, through the Agent, may reasonably request; and
(ix) Such additional documents, information (including financial
information) and materials as any Lender or the Issuer, through the Agent,
may reasonably request.
"Permitted Share Transfer" means any of (x) the sale by U.K.
52
Company to U.K. Holdings of all of the Stock of U.K. Operating Co. owned by
U.K. Company (a "Proposed U.K. Operating Co. Transfer"), or (y) the sale by
U.K. Operating Co. to U.K. Company or, if the Proposed U.K. Operating Co.
Transfer has been effected, the sale by U.K. Operating Co. to U.K. Holdings
of all of the Stock owned by it of either Ellbee Ltd. (a "Proposed Ellbee
Transfer") and/or Coated Products U.K. (a "Proposed Coated Products
Transfer"), provided that each of the following conditions precedent shall
have been satisfied with respect thereto (for purposes of the following, the
term "Proposed Share Transfer" means a Proposed U.K. Operating Co. Transfer,
a Proposed Ellbee Transfer or a Proposed Coated Products Transfer; the term
"Transferred Company" means, in the case of a Proposed U.K. Operating Co.
Transfer, U.K. Operating Co., in the case of a Proposed Ellbee Transfer,
Ellbee Ltd., and, in the case of a Proposed Coated Products U.K. Transfer,
Coated Products U.K.; the term "Purchasing Party" means, in the case of a
Proposed U.K. Operating Co. Transfer, U.K. Holdings, and means, in the case
of a Proposed Ellbee Transfer or a Proposed Coated Products Transfer, U.K.
Company until the consummation of a Proposed U.K. Operating Co. Transfer and,
thereafter, U.K. Holdings; and the term "Selling Party" means, in the case of
a Proposed U.K. Operating Co. Transfer, U.K. Company and, in the case of a
Proposed Ellbee Transfer or a Proposed Coated Products Transfer, U.K.
Operating Co.):
(a) The documentation for or relating to each Proposed Share Transfer
shall be in form and substance satisfactory to the Agent;
(b) The name of the Purchasing Party and of the Transferred Company
in each Proposed Share Transfer shall not change; and
(c) On the effective date of each Proposed Share Transfer (the "Share
Transfer Effective Date" thereof), the Agent shall have received each of the
following documents, each dated such Share Transfer Effective Date and in form
and substance satisfactory to the Agent and, except for any instruments or stock
powers referred to below, in sufficient copies for the Issuer and each Lender:
(i) A certificate of a Responsible Officer of the Purchasing Party,
the Selling Party, the Transferred Company and each other Loan Party
referred to in this subsection (c) certifying (A) the resolutions of its
board of directors (or other governing body) approving such Proposed Share
Transfer, all documentation therefor and the transactions contemplated
thereby, and the Loan Documents and other documents and certificates
required to be delivered by such Purchasing Party, such Selling Party, such
Transferred Company or such other Loan Party pursuant hereto and the
transactions contemplated hereby and thereby; (B) all documents evidencing
other necessary corporate action and required governmental
53
and third party approvals, licenses and consents with respect to such
Proposed Share Transfer and the documentation therefor and the Loan
Documents and other documents and certificates required to be delivered
by the Purchasing Party, such Selling Party, such Transferred Company or
such other Loan Party pursuant hereto and the transactions contemplated
hereby and thereby; (C) in the case of the Purchasing Party and the
Transferred Company in such Proposed Share Transfer, a copy of its
organizational documents as in effect on such Share Transfer Effective
Date after giving effect to such Proposed Share Transfer; (D) the names and
true signatures of each of its officers who has been authorized to execute
and deliver any Loan Document or other document required pursuant hereto to
be executed and delivered by or on behalf of such Purchasing Party, such
Selling Party, such Transferred Company or such other Loan Party; and (E) a
complete and correct copy of each document executed or delivered in
connection with such Proposed Share Transfer or evidencing the same;
(ii) In the case of each Proposed Share Transfer, such documentation
(including amendments to each U.K. Collateral Document and U.K. Guaranty)
as shall be necessary or, in the opinion of the Agent, in its sole judgment
exercised reasonably, desirable to ensure under all applicable Requirements
of Law and otherwise the enforceability and validity thereof and to ensure
that each U.K. Collateral Document to which the Transferred Company, the
Purchasing Party or the Selling Party is a party continues to create a
valid Lien on all Collateral covered thereby as security for, in the case
of a Proposed U.K. Operating Co. Share Transfer, all U.K. Operating Co.
Obligations and, in the case of each such Proposed Share Transfer, all
Guarantied Obligations of the Purchasing Party and the Transferred Company
in such Proposed Share Transfer, and that no such Lien shall cease to be a
perfected first priority Lien on such Collateral;
(iii) From the Purchasing Party in such Proposed Share Transfer, a
share pledge agreement, in form and substance satisfactory to the Agent
(which pledge agreement shall thereafter constitute a Pledge Agreement and
a U.K. Collateral Document), pursuant to which the Purchasing Party shall
xxxxx x Xxxx to the U.K. Trustee, for the ratable benefit of the Secured
Parties, over the Stock of the Transferred Company in such Proposed Share
Transfer, together with evidence that all action necessary or, in the
opinion of the Agent, desirable to perfect and protect the Lien created by
the Pledge Agreements have been taken;
(iv) A certificate of a Responsible Officer of Euramax and each of
the Purchasing Party, the Transferred Company and the Selling Party in
54
such Proposed Share Transfer, each stating that the following statements are
true on and as of such Share Transfer Effective Date after giving effect to
the consummation of such Proposed Share Transfer:
(A) The representations and warranties of such Loan Party
contained in Article IV and of such Loan Party and its Subsidiaries in
the other Loan Documents are true and correct on and as of such Share
Transfer Effective Date as though made on and as of such Share
Transfer Effective Date except as modified hereby or thereby;
(B) No Default or Event of Default has occurred and is
continuing or could reasonably be expected to result from such
Proposed Share Transfer or any of the transactions contemplated
thereby or hereby;
(C) All necessary governmental and third party approvals
(including any necessary approvals from all Governmental Authorities)
required to be obtained in connection with such Proposed Share
Transfer and the transactions contemplated thereby and hereby have
been obtained and remain in effect, and all applicable waiting periods
have expired without any action being taken by any competent authority
which restrains, prevents, impedes, delays or imposes materially
adverse conditions upon such Proposed Share Transfer, the transactions
contemplated thereby or hereby or the exercise of control by the
Purchasing Party over such Transferred Company;
(D) There exists no judgment, order, injunction or other
restraint prohibiting or, in the reasonable judgment of the Agent or
the Majority Lenders, imposing materially adverse conditions upon such
Proposed Share Transfer or any of the transactions contemplated
thereby or hereby or the exercise of control by the Purchasing Party
over such Transferred Company;
(E) There exists no claim, action, suit, investigation or
proceeding pending or, to the knowledge of such Loan Party, threatened
in any court or before any arbitrator or Governmental Authority which
relates to such Proposed Share Transfer or any of the transactions
contemplated thereby or hereby or which, if adversely determined, has
a reasonable likelihood of having a material adverse effect on such
Proposed Share Transfer or any of the transactions contemplated
thereby or hereby or a Material Adverse Effect;
55
(F) There will not occur as a result of the consummation of such
Proposed Share Transfer or any of the transactions contemplated
thereby or hereby any default (or any event which with the giving of
notice or lapse of time or both would be a default) under any
Contractual Obligations of or relating to any Loan Party or any of its
Subsidiaries other than, except in the case of any Related Document,
defaults that could not in the aggregate or individually reasonably be
expected to have a Material Adverse Effect or result in a Material
Adverse Change; and
(G) Each document for or related to such Proposed Share Transfer
is in full force and effect, the representations and warranties
contained therein are true and correct in all material respects and
all conditions set forth therein have been fulfilled or, with the
consent of the Agent and the Majority Lenders, waived by the parties
thereto;
(v) Favorable opinions of counsel to the Loan Parties, each in form
and substance satisfactory to the Agent and as to such matters as any
Lender or the Issuer, through the Agent, may reasonably request; and
(vi) Such additional documents, information (including financial
information) and materials as any Lender or the Issuer, through the Agent,
may reasonably request.
"Permitted U.K. Operating Co. Share Transfer" means a Proposed U.K.
Operating Co. Transfer consummated in a (and as defined in the definition of)
Permitted Share Transfer.
"Person" means an individual, partnership, corporation (including,
without limitation, a business trust and a limited liability company), joint
stock company, trust, unincorporated association, joint venture or other entity,
or a Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which Euramax or any of its Subsidiaries maintains, contributes to or has
an obligation to contribute to on behalf of participants who are or were
employed by any of them.
"Pledge Agreements" means the Euramax Stock (U.S.) and Debt Pledge
Agreement, the Euramax Stock (U.K.) Pledge Agreement, the Euramax Deed of
Pledge, the Euramax Nantissement, the Dutch Holdings Nantissement, the U.K.
Holdings Pledge Agreement, the Dutch Holdings Stock and Debt
56
Pledge Agreement, the U.S. Holdings Pledge Agreement, the U.S. Operating Co.
Pledge Agreement, the Building Products Pledge Agreement, the U.K. Company
Pledge Agreement, the Dutch Company Pledge Agreement, the U.K. Operating Co.
Pledge Agreement, the Dutch Operating Co. Pledge Agreement, the Additional
Euramax Deed of Pledge, the Additional Dutch Holdings Stock and Debt Pledge
Agreement, the Additional Dutch Company Pledge Agreement, the Additional
Dutch Operating Co. Pledge Agreement, the Fabral Holdings Pledge Agreement
and any other Collateral Document pursuant to which Euramax or any Subsidiary
of Euramax shall pledge or xxxxx x Xxxx in any Stock to secure any of the
Obligations or Guarantied Obligations.
"Pledged Shares" means the capital stock covered by any of the Pledge
Agreements.
"Preference Shares" means $34,000,000 in aggregate amount of 14%
cumulative preference shares (plus the amount of accrued or accumulated but
unpaid dividends thereon) issued by Euramax pursuant to the Shareholders
Agreement.
"Prior Purchase" means the purchase on the Closing Date, pursuant to
the Prior Purchase Agreement, for an aggregate amount not exceeding $245,000,000
(plus or minus the purchase price adjustment set forth in the Purchase
Agreement) and otherwise on the terms and subject to the conditions specified in
the Purchase Agreement, (i) by U.S. Holdings directly of all of the Stock of
U.S. Operating Co. and indirectly of each direct and indirect Operating Company
Subsidiary thereof; (ii) by U.K. Company directly of all of the Stock of U.K.
Operating Co. and indirectly of each Operating Company Subsidiary thereof; (iii)
by French Holdings directly of all of the Stock of French Operating Co. and
indirectly of Euramax Coated Products S.A. (formerly Alumax Coated Products,
S.A.), a company organized under the laws of the Republic of France and wholly
owned by French Operating Co.; and (iv) by Dutch Company directly of all of the
Stock of Dutch Operating Co. and indirectly of its Operating Company Subsidiary
(such Purchase being the "Dutch Entities Purchase").
"Prior Purchase Agreement" means that certain Purchase Agreement,
dated as of June 24, 1996, between Alumax and Euramax relating to the Prior
Purchase, as amended from time to time to the extent permitted by this
Agreement.
"Process Agent" has the meaning specified in Section 10.9.
"Projections" means the financial projections set forth on Schedule VI
covering the fiscal years ending in 1997 through 2003, inclusive, delivered to
the Lenders by Euramax.
57
"Proposed Merger" means any of (a) the merger of Dutch Operating Co.
with and into Dutch Company, or (b) the merger of Coated Products, B.V. with and
into Dutch Operating Co. or, if a proposed Merger of Dutch Operating Co. and
Dutch Company has been effected, into Dutch Company, or (c) the merger of French
Operating Co. with and into French Holdings, or (d) the merger of any Subsidiary
of French Operating Co. with and into French Operating Co. or, if a Proposed
Merger of French Operating Co. and French Holdings has been effected, into
French Holdings, or (e) either (i) the purchase by Ellbee Ltd. from, and the
sale to Ellbee Ltd. by, Coated Products U.K. of all assets and liabilities of
Coated Products U.K. or (ii) the purchase by Coated Products U.K. from, and the
sale to Coated Products U.K. by, Ellbee Ltd. of all assets and liabilities of
Ellbee Ltd.
"Qualifying Shares" means shares of Stock of any Person issued to
shareholders (other than the parent company of such Person) or directors of such
Person to the extent required by any applicable Requirement of Law.
"Ratable Portion" or "ratably" means, except as otherwise specifically
provided herein, with respect to any Lender, the quotient obtained by dividing
the Commitment of such Lender by the Commitments of all Lenders and that
payments of principal of the Loans and interest thereon shall be made pro rata
in accordance with the respective unpaid principal amounts of the Loans held by
the Lenders.
"Real Estate" means all of those plots, pieces or parcels of land now
owned or hereafter acquired by any Loan Party or any of its Subsidiaries (the
"Land"), including, without limitation, those listed on Schedule 4.22(a) and
described in the Domestic Mortgages, the Dutch Mortgages, the Additional Dutch
Mortgage and the U.K. Mortgages, together with the right, title and interest of
such Loan Party or such Subsidiary, if any, in and to the streets, the land
lying in the bed of any streets, roads or avenues, opened or proposed, in front
of, adjoining or abutting the Land to the center line thereof, the air space and
development rights pertaining to the Land and the right to use such air space
and development rights, all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging or in any way appertaining thereto,
all fixtures, all easements now or hereafter benefiting the Land and all
royalties and rights appertaining to the use and enjoyment of the Land,
including, without limitation, all alley, vault, drainage, mineral, water, oil
and gas rights, together with all of the buildings and other improvements now or
hereafter erected on the Land, and any fixtures appurtenant thereto.
"Reallocation" means the allocation and purchase of participations in
the Loans, the Letter of Credit Obligations and collections thereunder pursuant
58
to Section 8.3.
"Reallocation Exchange" means the participations purchased by the
Lenders pursuant to Section 8.3.
"Reallocation Percentage" means, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the aggregate
Designated Obligations owed to such Lender immediately prior to the date that
any Bankruptcy Event occurs and (b) the denominator shall be the aggregate
Designated Obligations owed to all the Lenders immediately prior to such date.
For purposes of computing each Lender's Reallocation Percentage, all Designated
Obligations which are denominated in an Alternative Currency shall be the
equivalent thereof in Dollars, calculated as provided in Section 2.17,
determined as of the date that any Bankruptcy Event occurs.
"Register" has the meaning specified in Section 10.7(c).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated September 25, 1996, among Euramax and the initial shareholders
of Euramax, as amended, supplemented or otherwise modified from time to time to
the extent permitted by this Agreement.
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of any Operating Company to the Issuer with respect to
Letters of Credit issued for such Operating Company's account pursuant to Letter
of Credit Reimbursement Agreements between the Issuer and such Operating
Company.
"Related Claims" means (i) in respect of any Borrower, all Obligations
of such Borrower in respect of any Loans that comprise (a) the Dutch Company
Term Loans, or (b) the U.K. Operating Co. Term Loans, or (c) the U.S. Dollar
Term A Loans, or (d) the U.S. Dollar Term B Loans, or (e) the U.S. Dollar Term C
Loans, or (f) the Revolving Credit Loans, the Revolving Credit Commitments, the
Swing Loans and the Letter of Credit Obligations, and (ii) in respect of any
other Loan Party, all Guarantied Obligations of such Loan Party in respect of
any Loans and the Letter of Credit Obligations that are denominated in the same
currency.
"Related Documents" means each Existing Related Document, each Fabral
Purchase Document, and each other document and instrument executed with respect
to the Transactions.
"Related Entity" has the meaning specified in Section 3.1(b).
59
"Related Lenders" means all Lenders holding Related Claims.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal,
leaching or migration on or into the environment or into or out of any property.
"Remedial Action" means all actions, including without limitation any
Capital Expenditures, required or voluntarily undertaken to (i) clean up, remove
or treat any Hazardous Material following a Release of such Hazardous Material,
(ii) prevent the Release or threat of Release, or minimize the further Release,
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment,
(iii) perform pre-remedial studies and investigations or post-remedial
monitoring and care, or (iv) bring facilities on any property owned, leased or
operated by any Loan Party or any of its Subsidiaries into material compliance
with all Environmental Laws and Environmental Permits.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and all foreign, federal, state and local laws, rules and regulations,
including, without limitation, foreign, federal, state or local securities,
antitrust and licensing laws, any foreign, federal, state or local laws or
regulations concerning physicians, nurses and psychologists, all food, health
and safety laws, and all applicable trade laws and requirements, including,
without limitation, all disclosure requirements of Environmental Laws, ERISA and
all orders, judgments, decrees or other determinations of any Governmental
Authority or arbitrator, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers or general partners of such Person and, in the case
of a limited liability company, any member thereof.
"Revolving Credit Borrowing" means a Borrowing consisting of Revolving
Credit Loans made to the same Borrower on the same day in the same currency by
the Revolving Credit Lenders ratably according to their respective Revolving
Credit Commitments.
"Revolving Credit Commitment" means, as to each Lender, the
commitment, if any, of such Lender to make Revolving Credit Loans to the
Transaction Revolving Credit Loan Borrowers and the Operating Companies pursuant
to Section 2.1 in the aggregate principal amount outstanding not to exceed the
Dollar amount (or the equivalent thereof in the applicable Alternative Currency
determined in accordance with Section 2.17) set forth opposite such
60
Lender's name on Part 1 of Schedule I under the caption "Revolving Credit
Commitment", as such amount may be reduced or modified pursuant to this
Agreement.
"Revolving Credit Commitment Termination Date" means the earlier of
(a) the Termination Date and (b) the First Maturity Date, provided that if, at
any time during the period commencing ten calendar days prior to the fourth
anniversary of the Effective Date and ending on such fourth anniversary, the
Borrowers shall request, in a notice delivered on such date to the Agent and
each Revolving Credit Lender, that the Revolving Credit Commitment Termination
Date be extended to the earlier of (i) the Termination Date and (ii) the Final
Maturity Date, then, if (A) all Revolving Credit Lenders, the Agent and each
Loan Party shall consent in writing to such request on or prior to the thirtieth
day following delivery of such notice, provided that if any such Lender shall
not consent to such request, the Loan Parties, CVC Europe or CVC U.S. shall have
the right to replace such Lender in accordance with the provisions applicable to
assignments set forth in Section 10.7, (B) each Loan Party shall enter into
appropriate amendments to the Loan Documents to which it is a party to the
extent necessary in connection with such extension and (C) each Loan Party shall
deliver all other documents, and shall effect such filings, recordings, notices,
notations, authorizations and registrations, as shall be necessary in connection
with such extension, the Revolving Credit Commitment Termination Date shall be
the earlier of (A) the Termination Date and (B) the Final Maturity Date.
"Revolving Credit Lender" means a Lender having a Revolving Credit
Commitment.
"Revolving Credit Loan" means an Existing Revolving Credit Loan and a
loan made by a Revolving Credit Lender to any Borrower pursuant to Section
2.1(a) and includes each Transaction Revolving Credit Loan and General Purpose
Revolving Credit Loan made by a Revolving Credit Lender.
"Revolving Credit Note" means a U.S. Operating Co. Revolving Credit
Note, a U.K. Operating Co. Revolving Credit Note, a Dutch Operating Co.
Revolving Credit Note and a Dutch Company Revolving Credit Note.
"Revolving Credit Ratable Portion" means, at any time with respect to
any Revolving Credit Lender, the amount obtained by dividing such Revolving
Credit Lender's Revolving Credit Commitment at such time by the Revolving Credit
Commitments of all Revolving Credit Lenders at such time.
"Secured Parties" means the Lenders, the Issuer, each Currency Swap
Party that has entered into the Agency Agreement, the Agent, the U.K.
61
Trustee and their respective successors and assigns.
"Senior Indebtedness" means, collectively, with respect to Euramax (i)
the Obligations, (ii) all Capitalized Lease Obligations of Euramax and its
Subsidiaries, and (iii) any additional Indebtedness of Euramax and its
Subsidiaries for borrowed money which is either secured or not subordinated to
the payment of the Obligations.
"Senior Subordinated Debt Documents" means the Senior Subordinated
Indenture and the Senior Subordinated Notes referred to in the Senior
Subordinated Indenture.
"Senior Subordinated Indenture" means the Indenture, dated as of
September 25, 1996, made by Euramax, U.K. Holdings and Dutch Holdings, as
issuers, and U.S. Holdings, as subordinated guarantor, in favor of the Trustee
thereunder, pursuant to which the Senior Subordinated Notes were issued, as said
Indenture may be amended, supplemented or otherwise modified from time to time
to the extent permitted by this Agreement.
"Senior Subordinated Notes" means $135,000,000 in aggregate principal
amount of 11-1/4% Senior Subordinated Notes due 2006 issued by Euramax, Dutch
Holdings and U.K. Holdings pursuant to the Senior Subordinated Indenture,
including notes issued in replacement or in exchange thereof pursuant to the
Registration Rights Agreement dated as of September 25, 1996.
"Shareholders Agreement" means the Shareholders Agreement, dated as of
September 25, 1996, among Euramax and the initial stockholders of Euramax, as
said Agreement may be amended, supplemented or otherwise modified from time to
time to the extent permitted by this Agreement.
"Solvent" means, with respect to any Person, that the value of the
assets of such Person (both at fair value and present fair saleable value) is,
on the date of determination, greater than the total amount of liabilities
(including, without limitation, contingent and unliquidated liabilities) of such
Person as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature and does not have
unreasonably small capital. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities will be computed at the
amount which, in 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.
"Specialty Products" means Amerimax Specialty Products, Inc., a
Delaware corporation and a wholly owned Subsidiary of ASP Corp.
62
"Specified Fabral Real Estate" has the meaning specified in Section
3.1(j).
"Specified Leases" means, collectively, the Initial Specified Leases,
the Initial New Leases and the Leases relating to the properties located at:
(i) 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx;
(ii) The Princeton Suites, Suites 323 and 330, 00000 Xxxxxx
Xxxxxxx, Xxxxxx, Xxxxx;
(iii) Xxx 00, Xxxxxxx Xxxx Xxxxxxxx Xxxxxx, 39 West Hampton, Mesa,
Arizona; and
(iv) 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx.
"Stock" means shares of capital stock, preference shares, ordinary
shares, beneficial or partnership interests, membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation or equivalent entity, whether voting or non-voting, and includes,
without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any stock, whether or not presently convertible, exchangeable or
exercisable.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which an aggregate of 50% or more of the
outstanding Stock having ordinary voting power to elect a majority of the board
of directors, managers, trustees or other controlling persons, is, at the time,
directly or indirectly, owned or controlled by such Person and/or one or more
Subsidiaries of such Person (irrespective of whether, at the time, Stock of any
other class or classes of such entity shall have or might have voting power by
reason of the happening of any contingency).
"Substitute Eurocurrency Rate" has the meaning specified in Section
2.10(d)(ii).
"Swing Loan" has the meaning specified in Section 2.20.
"Swing Loan Availability" means, at any time with respect to any
Operating Company, an amount equal to the lower of (a) the Swing Loan
63
Sublimit for such Operating Company minus the aggregate principal amount of
the Swing Loans outstanding at such time, and (b) in the case of U.K.
Operating Co. and Dutch Operating Co., the Swing Loan Lender's Revolving
Credit Ratable Portion of the Available Credit at such time and, in the case
of U.S. Operating Co., the Swing Loan Lender's Revolving Credit Ratable
Portion of the Available U.S. Credit at such time.
"Swing Loan Lender" means Paribas, or such other Lender who, with the
written consent of the Agent and U.S. Operating Co., shall agree to act as the
Swing Loan Lender.
"Swing Loan Lender Excess Amount" means, with respect to any Revolving
Credit Borrowing, the amount by which (a) the Swing Loan Lender's Revolving
Credit Ratable Portion of the Revolving Credit Loans comprising such Borrowing
plus the aggregate principal amount of the Swing Loans then outstanding plus the
aggregate principal amount of the Swing Loan Lender's Revolving Credit Loans
then outstanding plus the aggregate amount of the Swing Loan Lender's
participations in Letter of Credit Obligations then outstanding exceeds (b) the
lower of (i) the Swing Loan Lender's Revolving Credit Commitment at such time
and (ii) the Swing Loan Lender's Revolving Credit Ratable Portion of (A) the
Borrowing Base at such time, in the case of any such Revolving Credit Borrowing
by U.K. Operating Co., Dutch Company or Dutch Operating Co., and (B) the U.S.
Borrowing Base at such time, in the case of any such Revolving Credit Borrowing
by U.S. Operating Co.
"Swing Loan Sublimit" means an aggregate of US$5,000,000.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of such
Person, and (ii) any Affiliate of such Person with which such Person files or is
eligible to file consolidated, combined or unitary tax returns.
"Tax Allocation Agreement" means the Tax Sharing Agreement, dated as
of September 25, 1996, by and among the Domestic Loan Parties, as amended,
supplemented or otherwise modified from time to time to the extent permitted by
this Agreement.
"Tax Return" has the meaning specified in Section 4.3.
"Taxes" has the meaning specified in Section 2.15(a).
"Term Loan" means a U.S. Dollar Term A Loan, a U.S. Dollar Term B
Loan, a U.S. Dollar Term C Loan, a Dutch Company Term Loan or a U.K. Operating
Co. Term Loan.
64
"Term Loan Borrowers" means U.S. Operating Co., U.K. Operating Co. and
Dutch Company.
"Term Loan Commitment" means, as to any Lender, the aggregate of such
Lender's U.S. Dollar Term A Loan Commitment and U.S. Dollar Term C Loan
Commitment.
"Term Note" means a Dutch Company Term Note, a U.K. Operating Co.
Term Note, a U.S. Dollar Term A Note, a U.S. Dollar Term B Note and a U.S.
Dollar Term C Note.
"Termination Date" means the earliest of (i) July 30, 1997 unless the
Effective Date occurs prior thereto, (ii) the Final Maturity Date and (iii) the
date of termination in whole of the Commitments pursuant to Section 2.5 or 8.2.
"Title Insurance Policies" has the meaning specified in Section
3.1(j).
"Transaction Revolving Credit Loan" means an Existing Transaction
Revolving Credit Loan made on the Closing Date and a Revolving Credit Loan made
on the Effective Date the proceeds of which are used to finance the Fabral
Purchase or Costs.
"Transaction Revolving Credit Loan Borrower" means, in the case of the
Existing Transaction Revolving Credit Loans, Dutch Company, U.K. Operating Co.
and U.S. Operating Co., and means, in the case of any other Transaction
Revolving Credit Loan, U.S. Operating Co.
"Transactions" means the entering into by the Loan Parties of this
Agreement, the other Loan Documents and the Related Documents and the
consummation of the transactions contemplated hereby or by the Existing Credit
Agreement or any of the Related Documents.
"United States" and "U.S." each means the United States of America.
"U.K. Collateral Documents" means each U.K. Debenture, the U.K.
Company Pledge Agreement, the U.K. Holdings Pledge Agreement, the U.K. Operating
Co. Pledge Agreement and the U.K. Trust Deed, each governed by the laws of
England and Wales, and any other document executed by U.K. Holdings or a
Subsidiary thereof and governed by the laws of England and Wales pursuant to
which U.K. Holdings or such Subsidiary shall pledge, mortgage or xxxxx x Xxxx,
floating charge or fixed charge to secure any of the Obligations (to the extent
provided therein) or its Guarantied Obligations, as any
65
such document may be amended, supplemented or otherwise modified from time to
time.
"U.K. Company Guaranty" means the Guaranty, dated September 25, 1996,
between U.K. Company and the U.K. Trustee, for the ratable benefit of the
Guarantied Parties, as such guaranty may be amended, supplemented or otherwise
modified from time to time, pursuant to which U.K. Company unconditionally
guarantied its Guarantied Obligations.
"U.K. Company Pledge Agreement" means the Legal Mortgage of Shares,
dated September 25, 1996, executed by U.K. Company and the U.K. Trustee, as such
agreement may be amended, supplemented or otherwise modified from time to time,
pursuant to which U.K. Company has pledged to the U.K. Trustee, for the ratable
benefit of the Secured Parties, the Collateral covered thereby, including the
Stock of U.K. Operating Co., to secure all Company Obligations and U.K.
Company's Guarantied Obligations.
"U.K. Consent Agreement" means the U.K. Consent Agreement, in
substantially the form of Exhibit W, dated as of the Effective Date, among
Euramax, U.K. Holdings, U.K. Company, U.K. Operating Co., Coated Products U.K.,
Ellbee Ltd. and the U.K. Trustee.
"U.K. Debenture" means each Debenture, each dated September 25, 1996,
made by U.K. Operating Co. or a Subsidiary thereof, and each Debenture entered
into on or after the Effective Date by U.K. Operating Co. or a Subsidiary
thereof, each in form and substance satisfactory to the Lenders, pursuant to
which in each such case U.K. Operating Co. or such Subsidiary shall xxxxx x Xxxx
to the U.K. Trustee, for the ratable benefit of the Secured Parties, on or over
all of the assets and undertakings of U.K. Operating Co. or such Subsidiary to
secure, in the case of U.K. Operating Co., the U.K. Operating Co. Obligations
and all Guarantied Obligations of U.K. Operating Co. and to secure, in the case
of such Subsidiary, its Guarantied Obligations, as any such Debenture may be
amended, modified or supplemented from time to time.
"U.K. Guaranties" means the U.K. Holdings Guaranty, the U.K. Company
Guaranty, the U.K. Operating Co. Guaranty, and the U.K. Subsidiary Guaranties,
each governed by the Applicable Governing Law.
"U.K. Holdings Guaranty" means the Guaranty, dated as of September 25,
1996, executed by U.K. Holdings and the U.K. Trustee, for the ratable benefit of
the Guarantied Parties, as such guaranty may be amended, supplemented or
otherwise modified from time to time, pursuant to which U.K. Holdings
unconditionally guarantied its Guarantied Obligations.
66
"U.K. Holdings Pledge Agreement" means the Legal Mortgage of Shares,
dated September 25, 1996, executed by U.K. Holdings and the U.K. Trustee, for
the ratable benefit of the Secured Parties, as such agreement may be amended,
supplemented or otherwise modified from time to time, pursuant to which U.K.
Holdings has pledged the Collateral covered thereby to the U.K. Trustee, for the
ratable benefit of the Secured Parties, including the Stock of U.K. Company, to
secure U.K. Holdings' Guarantied Obligations.
"U.K. Operating Co. Guaranty" means the Guaranty, dated as of
September 25, 1996, executed by U.K. Operating Co. and the U.K. Trustee, for the
ratable benefit of the Guarantied Parties, as such guaranty may be amended,
supplemented or otherwise modified from time to time, pursuant to which U.K.
Operating Co. unconditionally guarantied its Guarantied Obligations.
"U.K. Operating Co. Obligations" means the Loans and all other
advances made to, debts, liabilities and obligations of, covenants agreed to by,
and duties owing by, any Loan Party to the Agent, any Lender, the Issuer, the
U.K. Trustee, any Affiliate of any of them, any Indemnitee or any Currency Swap
Party that has executed the Agency Agreement, of every type and description,
present or future, whether or not evidenced by any note, guaranty or other
instrument, arising under this Agreement or under any other Loan Document,
whether or not for the payment of money, loan, guaranty, indemnification,
foreign exchange transaction, Currency Contract, Interest Rate Contract or in
any other manner, whether direct or indirect (including, without limitation,
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired, and including, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to any Loan Party under this
Agreement or any other Loan Document, excluding in each such case the Excluded
U.S. Liabilities and any of the foregoing owing to the Agent or any Lender (or
any Affiliate thereof) solely in its capacity as a holder of any equity of
Euramax or any Senior Subordinated Notes.
"U.K. Operating Co. Pledge Agreement" means the Legal Mortgage of
Shares, dated September 25, 1996, executed by U.K. Operating Co. and the U.K.
Trustee, for the ratable benefit of the Secured Parties, as such agreement may
be amended, supplemented or otherwise modified from time to time, pursuant to
which U.K. Operating Co. has pledged the Collateral covered thereby, including
the Stock of its Subsidiaries, to secure the U.K. Operating Co. Obligations and
all Guarantied Obligations of U.K. Operating Co.
"U.K. Operating Co. Revolving Credit Note" means a promissory note of
U.K. Operating Co. payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-3, evidencing the aggregate Indebtedness
67
of U.K. Operating Co. to such Revolving Credit Lender resulting from the
Revolving Credit Loans (including such Lender's Existing Revolving Credit
Loans made to U.K. Operating Co.) made from time to time by such Revolving
Credit Lender to U.K. Operating Co. and, in the case of the Swing Loan
Lender, the Swing Loans made from time to time to U.K. Operating Co. by the
Swing Loan Lender, which promissory note replaces the Existing Note of such
Lender dated the Closing Date and evidencing said Existing Revolving Credit
Loans.
"U.K. Operating Co. Term Loan" means a U.K. Operating Co. Term Loan
(as defined in the Existing Credit Agreement) set forth on Schedule I-A hereto.
"U.K. Operating Co. Term Note" means a promissory note made by U.K.
Operating Co. and payable to the order of any Lender, in substantially the form
of Exhibit A-7, evidencing the aggregate Indebtedness of U.K. Operating Co. to
such Lender resulting from the U.K. Operating Co. Term Loan, if any, made on the
Business Day following the Closing Date by such Lender to such Borrower, which
promissory note replaces the Existing Note of such Lender dated the Closing Date
and evidencing said Loan.
"U.K. Subsidiary Guaranty" means each guaranty executed by a
Subsidiary of U.K. Operating Co. and the U.K. Trustee (including the Guaranties,
each dated September 25, 1996, executed by Coated Products U.K. and the U.K.
Trustee and by Ellbee Ltd. and the U.K. Trustee), for the ratable benefit of the
Guarantied Parties, pursuant to which such Subsidiary unconditionally guaranties
its Guarantied Obligations, as any of the same may be amended, supplemented or
otherwise modified from time to time.
"U.K. Trust Deed" means the Collateral Trust Deed, dated as of
September 25, 1996, executed by the U.K. Trustee, as the same may be amended,
supplemented or otherwise modified from time to time, pursuant to which the U.K.
Trustee holds the Collateral granted by the U.K. Collateral Documents and the
Euramax Stock (U.K.) Pledge Agreement, and the benefit of the Euramax Guaranty
and the U.K. Guaranties, in trust for the benefit of the Secured Parties.
"U.K. Trustee" means Paribas, in its capacity as trustee under the
U.K. Trust Deed.
"U.S. Borrowing Base" means, at any time, the sum of (a) 85% of the
U.S. Eligible Receivables at such time plus (b) 50% of the U.S. Eligible
Inventory at such time, in each case determined in accordance with Section 2.17,
less reserves deemed appropriate by the Agent in its sole judgment exercised
reasonably.
68
"U.S. Dollar Term A Loan" has the meaning specified in Section 2.2.
"U.S. Dollar Term A Loan Commitment" has the meaning specified in
Section 2.2.
"U.S. Dollar Term A Note" means a promissory note made by U.S.
Operating Co. and payable to the order of any Lender in a principal amount equal
to the amount of such Lender's U.S. Dollar Term A Loan Commitment, if any, as
originally in effect, in substantially the form of Exhibit A-8, evidencing the
aggregate Indebtedness of U.S. Operating Co. to such Lender resulting from the
U.S. Dollar Term A Loan, if any, made by such Lender to U.S. Operating Co.
"U.S. Dollar Term B Loan" means a U.S. Dollar Term Loan (as defined in
the Existing Credit Agreement) set forth on Schedule I-A hereto.
"U.S. Dollar Term B Note" means a promissory note co-made by the Term
Loan Borrowers and payable to the order of any Lender, in substantially the form
of Exhibit A-6, evidencing the aggregate Indebtedness of the Term Loan Borrowers
to such Lender resulting from the U.S. Dollar Term B Loan, if any, made by such
Lender to the Term Loan Borrowers, which promissory note replaces the Existing
Note of such Lender dated the Closing Date and evidencing said Loan.
"U.S. Dollar Term C Loan" has the meaning specified in Section 2.2.
"U.S. Dollar Term C Loan Commitment" has the meaning specified in
Section 2.2.
"U.S. Dollar Term C Note" means a promissory note made by U.S.
Operating Co. and payable to the order of any Lender in a principal amount equal
to the amount of such Lender's U.S. Dollar Term C Loan Commitment, if any, as
originally in effect, in substantially the form of Exhibit A-9, evidencing the
aggregate Indebtedness of U.S. Operating Co. to such Lender resulting from the
U.S. Dollar Term C Loan, if any, made by such Lender to U.S. Operating Co.
"U.S. Eligible Receivables" means Eligible Receivables owing to U.S.
Operating Co. and its Domestic Subsidiaries.
"U.S. Eligible Inventory" means Eligible Inventory owned by U.S.
Operating Co. and its Domestic Subsidiaries.
69
"U.S. Holdings Guaranty" means the Guaranty, dated as of September 25,
1996, in substantially the form of Exhibit H hereto, as amended as of the
Effective Date by the Domestic Amendatory Agreement, made by U.S. Holdings in
favor of the Guarantied Parties, as such guaranty may be further amended,
supplemented or otherwise modified from time to time, pursuant to which U.S.
Holdings unconditionally guarantied its Guarantied Obligations.
"U.S. Holdings Pledge Agreement" means the Pledge Agreement, dated as
of September 25, 1996, in substantially the form of Exhibit I, as amended of the
Effective Date by the Domestic Amendatory Agreement, executed by U.S. Holdings,
as such agreement may be further amended, supplemented or otherwise modified
from time to time, pursuant to which U.S. Holdings has pledged to the Agent, for
the ratable benefit of the Secured Parties, the Collateral covered thereby,
including the Stock of U.S. Operating Co., to secure U.S. Holdings' Guarantied
Obligations.
"U.S. Operating Co. Guaranty" means the Guaranty, dated as of
September 25, 1996, in substantially the form of Exhibit J hereto, as amended as
of the Effective Date by the Domestic Amendatory Agreement, made by U.S.
Operating Co. in favor of the Guarantied Parties, as the same may be further
amended, supplemented or otherwise modified from time to time, pursuant to which
U.S. Operating Co. unconditionally guarantied its Guarantied Obligations.
"U.S. Operating Co. Pledge Agreement" means the Pledge Agreement,
dated as of September 25, 1996, in substantially the form of Exhibit K, as
amended as of the Effective Date by the Domestic Amendatory Agreement, executed
by U.S. Operating Co., as such agreement may be further amended, supplemented or
otherwise modified from time to time, pursuant to which U.S. Operating Co. has
pledged to the Agent, for the ratable benefit of the Secured Parties, the
Collateral covered thereby, including the Stock of each of its Subsidiaries, to
secure all Obligations and U.S. Operating Co.'s Guarantied Obligations.
"U.S. Operating Co. Revolving Credit Note" means a promissory note of
U.S. Operating Co. payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-4, evidencing the aggregate Indebtedness of
U.S. Operating Co. to such Revolving Credit Lender resulting from the Revolving
Credit Loans (including such Lender's Existing Revolving Credit Loans made to
U.S. Operating Co.) made from time to time by such Revolving Credit Lender to
U.S. Operating Co. and, in the case of the Swing Loan Lender, the Swing Loans
made from time to time to U.S. Operating Co. by the Swing Loan Lender, which
promissory note replaces the Existing Note of such Lender dated the Closing Date
and evidencing said Existing Revolving Credit Loans.
70
"Voting Stock" means, with reference to any Person, the Stock of any
class or classes if the holders of such Stock are ordinarily, in the absence of
contingencies, entitled to vote for the election of the directors (or Persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"wholly owned" means, in the case of any Non-Domestic Subsidiary of
any Person, that all of the Stock of such Subsidiary is owned by such Person
other than Qualifying Shares and, in the case of any Domestic Subsidiary of any
Person, that all of the Stock of such Subsidiary is owned by such Person.
"Working Capital" means, for any Person at any date, (a) Current
Assets of such Person and its Subsidiaries at such date less (b) Current
Liabilities of such Person and its Subsidiaries at such date, in each case
determined on a consolidated basis.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
1.3. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.
1.4. Certain Terms. (a) The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, and not to any particular Article, Section, subsection or clause in this
Agreement. References herein to an Exhibit, Schedule, Article, Section,
subsection or clause refer to the appropriate Exhibit or Schedule to, or
Article, Section, subsection or clause in this Agreement.
(b) For purposes of this Agreement and each other Loan Document, the
term "Lender" includes the Swing Loan Lender, and the terms "Lender", "Swing
Loan Lender", "Issuer", "U.K. Trustee" and "Agent" include their respective
successors and assigns, the terms "Lender", "Swing Loan Lender" and "Issuer"
include each assignee of such Lender, Swing Loan Lender or Issuer who becomes a
party hereto pursuant to Section 10.7.
(c) Upon the appointment of any successor Agent pursuant to Section
9.6, references to Paribas in Section 9.3 and in the definitions of Agency
Agreement, Eurocurrency Rate and U.K. Trustee shall be deemed to refer to the
71
successor then acting as the Agent.
(d) For purposes of this Agreement and each other Loan Document, the
Obligations shall be deemed to remain outstanding until all Obligations (other
than Obligations in respect of indemnification and expense reimbursement
obligations hereunder to the extent such obligations are unknown or not then due
and payable) have been paid in full in cash.
(e) For purposes of this Agreement and each other Loan Document, (i)
from and after a Permitted Ellbee Share Transfer or a Permitted Coated Products
Share Transfer, each reference to an "Operating Company Subsidiary" of U.K.
Operating Co. shall mean and be a reference to, upon the effectiveness of either
such Proposed Share Transfer, Ellbee Ltd. or Coated Products, U.K., as the case
may be, as an Operating Company Subsidiary of U.K. Company or, if a Permitted
U.K. Operating Co. Share Transfer has been consummated, an Operating Company
Subsidiary of U.K. Holdings; (ii) from and after a Permitted Merger of Ellbee
Ltd. and Coated Products U.K., each reference to "Ellbee Limited", "Euramax
Coated Products Limited", "Ellbee Ltd.", "Coated Products U.K." and to an
"Operating Company Subsidiary" or to "Operating Company Subsidiaries" of U.K.
Operating Co., shall each mean and be a reference to the Consolidated Entity (as
defined in the definition of Permitted Merger); and (iii) from and after a
Permitted Merger of French Operating Co. with and into French Holdings, the
terms "French Operating Co." and "French Holdings", and each reference to
"Euramax Industries S.A.", shall each mean and be a reference to French
Holdings, as the surviving company in such Permitted Merger.
1.5. Currency Equivalents Generally. For all purposes of this
Agreement other than (a) for purposes of determining the unused portion of any
Lender's Commitment or any or all Loans outstanding at any time and (b) for
purposes of Article II (except for the purpose of determining Excess Cash Flow
for any period), (i) the equivalent in any Alternative Currency of an amount in
Dollars shall be determined at the rate of exchange quoted by Paribas in New
York City, at 9:00 A.M. (New York City time) on the date of determination to
prime banks in New York City for the spot purchase in the New York foreign
exchange market of such Alternative Currency with such amount of Dollars, and
(ii) all references in Articles IV, VI, VII and VIII of this Agreement to an
amount in Dollars shall be deemed to mean and include a reference to the
equivalent thereof, determined as provided in clause (i) above, in an
Alternative Currency.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
72
2.1. The Revolving Credit Loans. (a) Each Borrower hereby agrees
to pay to each Lender when due in accordance with the terms of this Agreement
the Existing Revolving Credit Loans of such Lender made to such Borrower.
(b) On the terms and subject to the conditions contained in this
Agreement, each Revolving Credit Lender severally agrees (i) on the Effective
Date, if, and only if, the Lenders have made, or simultaneously make, the
U.S. Dollar Term A Loans and the U.S. Dollar Term C Loans to U.S. Operating
Co., to make a Transaction Revolving Credit Loan to U.S. Operating Co., in
Dollars, in a principal amount not to exceed the lesser of (x) such Revolving
Credit Lender's Revolving Credit Ratable Portion multiplied by the Applicable
Sublimit and (y) such Revolving Credit Lender's Revolving Credit Ratable
Portion multiplied by the Available U.S. Credit on the Effective Date; and
(ii) from time to time on any Business Day during the period from the
Effective Date until the Revolving Credit Commitment Termination Date, to
make General Purpose Revolving Credit Loans to the Operating Companies, in
Dollars or in an Alternative Currency, in an aggregate principal amount not
to exceed the lesser of (x) such Revolving Credit Lender's Revolving Credit
Commitment at such time and (y) such Revolving Credit Lender's Revolving
Credit Ratable Portion multiplied by, in the case of any such Loan made to
Dutch Operating Co. or to U.K. Operating Co., the Available Credit at such
time and, in the case of any such Loan made to U.S. Operating Co., the
Available U.S. Credit at such time; provided, however, that (A) the aggregate
principal amount of the Transaction Revolving Credit Loan made by any
Revolving Credit Lender to U.S. Operating Co. shall not exceed the lesser of
(x) such Revolving Credit Lender's Revolving Credit Ratable Portion
multiplied by the Applicable Sublimit and (y) such Revolving Credit Lender's
Revolving Credit Ratable Portion multiplied by the Available U.S. Credit on
the Effective Date, (B) the aggregate principal amount of all Revolving
Credit Loans made at any time by the Revolving Credit Lenders shall not
exceed the lesser of (x) the Revolving Credit Commitments of the Revolving
Credit Lenders at such time and (y) in the case of such Loan made to Dutch
Company, Dutch Operating Co. or to U.K. Operating Co., the Available Credit
at such time and, in the case of any such Loan made to U.S. Operating Co.,
the Available U.S. Credit at such time, (C) the aggregate principal amount of
the Revolving Credit Loans made at any time by any Revolving Credit Lender to
U.S. Operating Co. shall not exceed the lesser of (x) such Revolving Credit
Lender's Revolving Credit Commitment at such time and (y) such Revolving
Credit Lender's Revolving Credit Ratable Portion multiplied by the Available
U.S. Credit at such time, and (D) the aggregate principal amount of all
Revolving Credit Loans made at any time by the Revolving Credit Lenders to
U.S. Operating Co. shall not exceed the lesser of (x) the Revolving Credit
Commitments of all Revolving Credit Lenders at such time and (y) the
Available U.S. Credit at such time; and provided, further, that no
73
Swing Loans shall be outstanding on any date of a proposed Revolving Credit
Borrowing unless either (A) there shall not be any Swing Loan Lender Excess
Amount of such Revolving Credit Borrowing or (B) such Borrowing is comprised
of Base Rate Loans to be made to U.S. Operating Co. and U.S. Operating Co.
attaches to its Notice of Borrowing with respect thereto a written notice
addressed to the Agent and the Swing Loan Lender stating (x) the Swing Loan
Lender Excess Amount of such Borrowing and (y) that, notwithstanding Section
2.3(c), the Swing Loan Lender is directed to apply such Swing Loan Lender
Excess Amount of the proceeds of the Revolving Credit Loan to be made by it
as a part of such Borrowing to repay the outstanding Swing Loans, which
application shall be made at the time the Agent notifies the Swing Loan
Lender that, pursuant to Section 2.3(c), it is making funds available to U.S.
Operating Co. in the remaining amount of such Borrowing.
(c) Within the limits of each Revolving Credit Lender's Revolving
Credit Commitment, any principal amount of the Transaction Revolving Credit
Loans or General Purpose Revolving Credit Loans prepaid pursuant to Section
2.7(b) may be reborrowed as, but only as, General Purpose Revolving Credit Loans
under Section 2.1(b).
(d) The Revolving Credit Loans of each Revolving Credit Lender made
to U.S. Operating Co., Dutch Company, U.K. Operating Co. and Dutch Operating Co.
shall be evidenced by a U.S. Operating Co. Revolving Credit Note made by U.S.
Operating Co., a Dutch Company Revolving Credit Note made by Dutch Company, a
U.K. Operating Co. Revolving Credit Note made by U.K. Operating Co. and a Dutch
Operating Co. Revolving Credit Note made by Dutch Operating Co., respectively,
in each case to the order of such Revolving Credit Lender.
2.2. The Term Loans.
(a) Each Borrower hereby agrees to pay to each Lender when due in
accordance with the terms of this Agreement the Existing Term Loans of such
Lender made to such Borrower.
(b) On the terms and subject to the conditions contained in this
Agreement, each Lender severally agrees to:
(i) on the Effective Date, make a loan to U.S. Operating Co. in
Dollars (each a "U.S. Dollar Term A Loan") in an aggregate Dollar amount
(if any) set forth opposite such Lender's name on Part 2 of Schedule I
under the caption "U.S. Dollar Term A Loan Commitment" (such Lender's "U.S.
Dollar Term A Loan Commitment"), and
(ii) on the Effective Date, make a loan to U.S. Operating Co. in
Dollars (each a "U.S. Dollar Term C Loan") in an aggregate principal amount
not to exceed the Dollar amount (if any) set forth opposite such Lender's
name on Part 3 of Schedule I under the caption "U.S. Dollar Term C Loan
Commitment" (such Lender's "U.S. Dollar Term C Loan Commitment");
provided, however, that no Lender's aggregate Additional Term Loans shall exceed
such Lender's Term Loan Commitment.
(b) Any amount of any Term Loan repaid or prepaid may not be
reborrowed. The U.S. Dollar Term A Loan, the U.S. Dollar Term B Loan, the
U.S. Dollar Term C Loan, the Dutch Company Term Loan and the U.K. Operating
Co. Term Loan of each Lender shall be
74
evidenced by a U.S. Dollar Term A Note made by U.S. Operating Co., a U.S.
Dollar Term B Note made by the Term Loan Borrowers, a U.S. Dollar Term C Note
made by U.S. Operating Co., a Dutch Company Term Note made by Dutch Company
and a U.K. Operating Co. Term Note made by U.K. Operating Co., respectively,
in each case to the order of such Lender.
2.3. Making Loans. (a) The Transaction Revolving Credit Loans made
pursuant to Section 2.1(b) shall be made on the Effective Date on notice,
given by U.S. Operating Co. to the Agent no later than 11:00 A.M. (New York
City time) on the second Business Day preceding the Effective Date in the
case of Base Rate Loans, and not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the Effective Date in the case of
Eurocurrency Loans; each General Purpose Revolving Credit Loan Borrowing
comprised of Base Rate Loans shall be made on notice, given by an Operating
Company to the Agent not later than 11:00 A.M. (New York City time) on the
Business Day prior to the date of such proposed Borrowing; and each General
Purpose Revolving Credit Loan Borrowing comprised of Eurocurrency Loans shall
be made on notice, given by an Operating Company no later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of such
proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made
as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing
specifies that all or a pro rata portion thereof shall be Eurocurrency Loans
and specifies the Interest Period or Periods therefor, and the General
Purpose Revolving Credit Loans (subject to Section 2.12) made in an
Alternative Currency shall be made as Eurocurrency Loans. Each such notice
(a "Notice of Borrowing") shall be in substantially the form of Exhibit B,
specifying therein (i) the date of such proposed Revolving Credit Borrowing,
(ii) the aggregate amount of such proposed Revolving Credit Borrowing, (iii)
in the case of General Purpose Revolving Credit Loans, the currency of such
proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in
Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and
the initial Interest Period or Periods therefor, and (v) in the case of a
proposed Borrowing in an Alternative Currency, the initial Interest Period or
Periods for the Eurocurrency Loans comprising such Borrowing, except that if
no Interest Period is selected for any Eurocurrency Loan, the Interest Period
for such Loan shall be one month; provided, however, that the aggregate of
the Eurocurrency Loans made in the same currency to any Operating Company for
each Interest Period must be in an amount of not less than $500,000 or an
integral multiple of $100,000 in excess thereof (or the equivalent thereof in
the applicable Alternative Currency) and each Revolving Credit Loan Borrowing
consisting of Base Rate Loans shall be in an aggregate amount of not less
than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Additional Term Loans shall each be made upon receipt of a
Notice of Borrowing, given by U.S. Operating Co. to the Agent no later than
11:00 A.M. (New York City time) on the second Business Day prior to the
Effective Date in the case of Base Rate Loans, and not later than 11:00 A.M.
75
(New York City time) on the third Business Day prior to the Effective Date in
the case of Eurocurrency Loans. The Additional Term Loans shall be made as
Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing
specifies that all or a pro rata portion thereof shall be Eurocurrency Loans
and specifies the Interest Periods therefor. The Notice of Borrowing for the
Additional Term Loans shall specify therein (i) the Effective Date, (ii) the
aggregate amount of the U.S. Dollar Term A Loans and the aggregate amount of
the U.S. Dollar Term C Loans, and (iii) the amount thereof, if any, requested
to be Eurocurrency Loans and the initial Interest Period or Periods therefor;
provided, however, that the aggregate Eurocurrency Loans for each Interest
Period must be in an amount not less than $500,000 or an integral multiple of
$100,000 in excess thereof.
(c) The Agent shall give to each Lender prompt notice of the
Agent's receipt of a Notice of Borrowing and, if Eurocurrency Loans are
properly requested in such Notice of Borrowing, the applicable interest rate
under Section 2.9(b). Each Lender shall, before 11:00 A.M. (New York City
time) on the date of the proposed Borrowing by any Borrower, make available
for the account of its Applicable Lending Office to the Agent (i) in the case
of a Borrowing in Dollars, at such account maintained at the Payment Office
for Dollars as shall have been notified by the Agent to the Lenders prior
thereto and in immediately available funds, such Lender's ratable portion of
such Borrowing in Dollars, and (ii) in the case of a Borrowing in an
Alternative Currency, at such account maintained at the Payment Office for
such Alternative Currency as shall have been notified by the Agent to the
Lenders prior thereto and in immediately available funds, such Lender's
ratable portion of such Borrowing in such Alternative Currency. After the
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available
to such Borrower at the aforesaid applicable Payment Office.
(d) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing
given by a Borrower specifies that any of the Loans comprising the proposed
Borrowing in respect of which such Notice of Borrowing is delivered are to be
comprised of Eurocurrency Loans or Loans denominated in an Alternative
Currency, such Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such proposed
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including, without limitation, loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
any Eurocurrency Loan or any Loan denominated in an Alternative Currency to
be made by such Lender as part of such proposed Borrowing, as a result of
such failure, is not made on such date.
76
(e) Unless the Agent shall have received notice from a Lender prior
to the date of any proposed Borrowing by any Borrower that such Lender will
not make available to the Agent such Lender's Ratable Portion of such
Borrowing, the Agent may assume that such Lender has made such Ratable
Portion available to the Agent on the date of such Borrowing in accordance
with this Section 2.3 and the Agent may, in reliance upon such assumption,
make available to such Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such Ratable Portion
available to the Agent, such Lender and such Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together
with interest
77
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement. If such Borrower shall repay
to the Agent such corresponding amount, such payment shall not relieve such
Lender of any obligation it may have to such Borrower hereunder.
(f) The failure of any Lender to make the Loan to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on the date of any Borrowing.
2.4. Fees. (a) The Borrowers jointly and severally agree to pay to
each Revolving Credit Lender a commitment fee on the average daily unused
portion of such Revolving Credit Lender's Revolving Credit Commitment from the
Effective Date until the Revolving Credit Commitment Termination Date at the
rate of 1/2 of 1% per annum, payable on the last day of each quarter during the
term of such Revolving Credit Lender's Revolving Credit Commitment, commencing
on September 30, 1997, on the date of any reduction of the Revolving Credit
Commitments pursuant to Section 2.5 and on the Revolving Credit Commitment
Termination Date.
(b) Euramax and U.S. Operating Co. have agreed to pay to Paribas
additional fees, the amount and dates of payment of which are embodied in a
separate written agreement between such Loan Parties and Paribas, and the Loan
Parties have entered into additional arrangements and agreements with Paribas.
(c) The Borrowers jointly and severally agree to pay to each
Continuing Lender a commitment fee on the amount by which such Lender's
Commitment exceeds the amount of such Continuing Lender's Existing Loans
(prior to giving effect to the Effective Date Assignments) and Existing
Revolving Credit Commitment, at the rate of 1/2 of 1% per annum, computed on
a 360 day basis and payable to each Continuing Lender in Dollars on the
Effective Date and accruing from
78
the later of (i) June 24, 1997 and (ii) the date on which the Agent accepts
such Lender's Commitment until the Effective Date.
(d) For purposes of determining the unused portion of each
Revolving Credit Lender's Commitment solely in order to calculate the
commitment fee under Section 2.4(a), (i) the equivalent in Dollars of each
Revolving Credit Loan made by such Revolving Credit Lender in an Alternative
Currency as determined on the date of the making of such Revolving Credit
Loan shall be the amount of such Revolving Credit Lender's Revolving Credit
Commitment used in connection with such Revolving Credit Loan, and no further
adjustments shall be made with respect to the unused portion of such
Revolving Credit Lender's Revolving Credit Commitment based upon fluctuations
thereafter in the value of the Alternative Currency of such Revolving Credit
Loan; and (ii) no Swing Loan shall constitute the usage of any Revolving
Credit Lender's Commitment other than of the Swing Loan Lender.
2.5. Reduction and Termination of the Commitments. (a) The
Borrowers may, upon at least three Business Days' prior written notice to the
Agent, terminate in whole or reduce ratably in part, without premium or penalty
except as otherwise provided in Section 10.4, the unused portions of the
respective Revolving Credit Commitments of the Revolving Credit Lenders;
provided, however, that each partial reduction shall be in the aggregate amount
of not less than $500,000 or an integral multiple of $100,000 in excess thereof
(or the equivalent thereof in the applicable Alternative Currency determined on
the date notice of repayment is given in accordance with Section 2.17); and
provided, further, however, that unless and until the aggregate principal amount
of the Term Loans have been repaid in full, the Revolving Credit Commitments
shall not be reduced below $20,000,000; and provided, further, however, that in
no event shall the Revolving Credit Commitments be reduced to below $1,000,000.
(b) On the earlier of the Termination Date and the making of the
Additional Term Loans on the Effective Date, each Lender's Term Loan Commitment
shall terminate.
(c) The then current Revolving Credit Commitments shall be reduced
on each date on which a prepayment of Revolving Credit Loans is made pursuant
to Section 2.7(d)(ii), (iii) or (iv) in the amount of such prepayment (and the
79
Revolving Credit Commitment of each Revolving Credit Lender shall be reduced
by its Ratable Portion of such amount).
2.6. Repayment. (a) Each Borrower shall repay the entire unpaid
principal amount of its Revolving Credit Loans and Swing Loans on the Revolving
Credit Commitment Termination Date.
(b)(i) U.S. Operating Co. shall repay the U.S. Dollar Term A Loans on
the dates and in the percentage amounts of the aggregate principal amount of the
U.S. Dollar Term A Loans outstanding on the Effective Date (such aggregate being
the "Aggregate A Amount") as are set forth below:
Date: Principal Payment Due:
---- ---------------------
September 30, 1997 2.2500% of Aggregate A Amount
December 31, 1997 2.2500% of Aggregate A Amount
March 31, 1998 2.2500% of Aggregate A Amount
June 30, 1998 2.2500% of Aggregate A Amount
September 30, 1998 4.7500% of Aggregate A Amount
December 31, 1998 4.7500% of Aggregate A Amount
March 31, 1999 4.7500% of Aggregate A Amount
June 30, 1999 4.7500% of Aggregate A Amount
September 30, 1999 4.7500% of Aggregate A Amount
December 31, 1999 4.7500% of Aggregate A Amount
March 31, 2000 4.7500% of Aggregate A Amount
June 30, 2000 4.7500% of Aggregate A Amount
September 30, 2000 4.7500% of Aggregate A Amount
December 31, 2000 4.7500% of Aggregate A Amount
March 31, 2001 4.7500% of Aggregate A Amount
June 30, 2001 4.7500% of Aggregate A Amount
September 30, 2001 7.2500% of Aggregate A Amount
December 31, 2001 8.9167% of Aggregate A Amount
March 31, 2002 8.9167% of Aggregate A Amount
June 30, 2002 8.9166% of Aggregate A Amount
provided, however, that U.S. Operating Co. shall repay the entire unpaid
principal amount of the U.S. Dollar Term A Loans on the First Maturity Date.
All principal payments of U.S. Dollar Term A Loans shall be accompanied by
accrued interest on the principal amount being repaid to the date of repayment.
80
(ii) Dutch Company, U.K. Operating Co. and U.S. Operating Co. shall
jointly and severally repay the U.S. Dollar Term B Loans on the dates and in the
percentage amounts of the aggregate principal amount of the U.S. Dollar Term B
Loans outstanding on the Effective Date (such aggregate being the "Aggregate B
Amount") as are set forth below:
Date: Principal Payment Due:
---- ---------------------
September 30, 1997 0.250% of Aggregate B Amount
December 31, 1997 0.250% of Aggregate B Amount
March 31, 1998 0.250% of Aggregate B Amount
June 30, 1998 0.250% of Aggregate B Amount
September 30, 1998 0.250% of Aggregate B Amount
December 31, 1998 0.250% of Aggregate B Amount
March 31, 1999 0.250% of Aggregate B Amount
June 30, 1999 0.250% of Aggregate B Amount
September 30, 1999 0.250% of Aggregate B Amount
December 31, 1999 0.250% of Aggregate B Amount
March 31, 2000 0.250% of Aggregate B Amount
June 30, 2000 0.250% of Aggregate B Amount
September 30, 2000 0.250% of Aggregate B Amount
December 31, 2000 0.250% of Aggregate B Amount
March 31, 2001 0.250% of Aggregate B Amount
June 30, 2001 0.250% of Aggregate B Amount
September 30, 2001 0.250% of Aggregate B Amount
December 31, 2001 0.250% of Aggregate B Amount
March 31, 2002 0.250% of Aggregate B Amount
June 30, 2002 0.250% of Aggregate B Amount
September 30, 2002 11.875% of Aggregate B Amount
December 31, 2002 11.875% of Aggregate B Amount
March 31, 2003 11.875% of Aggregate B Amount
June 30, 2003 11.875% of Aggregate B Amount
September 30, 2003 11.875% of Aggregate B Amount
December 31, 2003 11.875% of Aggregate B Amount
March 31, 2004 11.875% of Aggregate B Amount
June 30, 2004 11.875% of Aggregate B Amount
provided, however, Dutch Company, U.K. Operating Co. and U.S. Operating Co.
shall jointly and severally repay the entire unpaid principal amount of the
U.S. Dollar Term B
81
Loans on the Final Maturity Date. All principal payments of U.S. Dollar Term
B Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of repayment.
(iii) U.S. Operating Co. shall repay the U.S. Dollar Term C Loans on
the dates and in the percentage amounts of the aggregate principal amount of the
U.S. Dollar Term C Loans outstanding on the Effective Date (such aggregate being
the "Aggregate C Amount") as are set forth below:
Date: Principal Payment Due:
---- ---------------------
September 30, 1997 0.250% of Aggregate C Amount
December 31, 1997 0.250% OF Aggregate C Amount
March 31, 1998 0.250% of Aggregate C Amount
June 30, 1998 0.250% of Aggregate C Amount
September 30, 1998 0.250% of Aggregate C Amount
December 31, 1998 0.250% of Aggregate C Amount
March 31, 1999 0.250% of Aggregate C Amount
June 30, 1999 0.250% of Aggregate C Amount
September 30, 1999 0.250% of Aggregate C Amount
December 31, 1999 0.250% of Aggregate C Amount
March 31, 2000 0.250% of Aggregate C Amount
June 30, 2000 0.250% of Aggregate C Amount
September 30, 2000 0.250% of Aggregate C Amount
December 31, 2000 0.250% of Aggregate C Amount
March 31, 2001 0.250% of Aggregate C Amount
June 30, 2001 0.250% of Aggregate C Amount
September 30, 2001 0.250% of Aggregate C Amount
December 31, 2001 0.250% of Aggregate C Amount
March 31, 2002 0.250% of Aggregate C Amount
June 30, 2002 0.250% of Aggregate C Amount
September 30, 2002 11.875% of Aggregate C Amount
December 31, 2002 11.875% of Aggregate C Amount
March 31, 2003 11.875% of Aggregate C Amount
June 30, 2003 11.875% of Aggregate C Amount
September 30, 2003 11.875% of Aggregate C Amount
December 31, 2003 11.875% of Aggregate C Amount
March 31, 2004 11.875% of Aggregate C Amount
82
June 30, 2004 11.875% of Aggregate C Amount
provided, however, that U.S. Operating Co. shall repay the entire unpaid
principal amount of the U.S. Dollar Term C Loans on the Final Maturity Date.
All principal payments of U.S. Dollar Term C Loans shall be accompanied by
accrued interest on the principal amount being repaid to the date of repayments.
(iv) Dutch Company shall repay the Dutch Company Term Loans on the
dates and in the percentage amounts of the aggregate principal amount of the
Dutch Company Term Loans outstanding on the Effective Date (such aggregate being
the "Aggregate DC Amount") as are set forth below:
Date: Principal Payment Due:
---- ---------------------
September 30, 1997 2.2500% of Aggregate DC Amount
December 31, 1997 2.2500% of Aggregate DC Amount
March 31, 1998 2.2500% of Aggregate DC Amount
June 30, 1998 2.2500% of Aggregate DC Amount
September 30, 1998 4.7500% of Aggregate DC Amount
December 31, 1998 4.7500% of Aggregate DC Amount
March 31, 1999 4.7500% of Aggregate DC Amount
June 30, 1999 4.7500% of Aggregate DC Amount
September 30, 1999 4.7500% of Aggregate DC Amount
December 31, 1999 4.7500% of Aggregate DC Amount
March 31, 2000 4.7500% of Aggregate DC Amount
June 30, 2000 4.7500% of Aggregate DC Amount
September 30, 2000 4.7500% of Aggregate DC Amount
December 31, 2000 4.7500% of Aggregate DC Amount
March 31, 2001 4.7500% of Aggregate DC Amount
June 30, 2001 4.7500% of Aggregate DC Amount
September 30, 2001 7.2500% of Aggregate DC Amount
December 31, 2001 8.9167% of Aggregate DC Amount
March 31, 2002 8.9167% of Aggregate DC Amount
June 30, 2002 8.9166% of Aggregate DC Amount
provided, however, that the final such installment shall be payable on the
First Maturity Date in an amount equal to the remaining unpaid principal
amount of the Dutch Company Term Loans. All principal payments of Dutch
Company Term Loans
83
shall be accompanied by accrued interest on the principal amount being repaid
to the date of repayment.
(v) U.K. Operating Co. shall repay the U.K. Operating Co. Term Loans on
the dates and in the percentage amounts of the aggregate principal amount of the
U.K. Operating Co. Term Loans outstanding on the Effective Date (such aggregate
being the "Aggregate UKO Amount") as are set forth below:
Date: Principal Payment Due:
---- ---------------------
September 30, 1997 2.2500% of Aggregate UKO Amount
December 31, 1997 2.2500% of Aggregate UKO Amount
March 31, 1998 2.2500% of Aggregate UKO Amount
June 30, 1998 2.2500% of Aggregate UKO Amount
September 30, 1998 4.7500% of Aggregate UKO Amount
December 31, 1998 4.7500% of Aggregate UKO Amount
March 31, 1999 4.7500% of Aggregate UKO Amount
June 30, 1999 4.7500% of Aggregate UKO Amount
September 30, 1999 4.7500% of Aggregate UKO Amount
December 31, 1999 4.7500% of Aggregate UKO Amount
March 31, 2000 4.7500% of Aggregate UKO Amount
June 30, 2000 4.7500% of Aggregate UKO Amount
September 30, 2000 4.7500% of Aggregate UKO Amount
December 31, 2000 4.7500% of Aggregate UKO Amount
March 31, 2001 4.7500% of Aggregate UKO Amount
June 30, 2001 4.7500% of Aggregate UKO Amount
September 30, 2001 7.2500% of Aggregate UKO Amount
December 31, 2001 8.9167% of Aggregate UKO Amount
March 31, 2002 8.9167% of Aggregate UKO Amount
June 30, 2002 8.9166% of Aggregate UKO Amount
provided, however, that the final such installment shall be payable on the
First Maturity Date in an amount equal to the remaining unpaid principal
amount of the U.K. Operating Co. Term Loans. All principal payments of U.K.
Operating Co. Term Loans shall be accompanied by accrued interest on the
principal amount being repaid to the date of repayment.
2.7. Prepayments. (a) No Borrower shall have any right to prepay
the principal amount of any Loan other than as provided in this Section 2.7.
84
(b) Each Borrower may, without premium or penalty, upon at least
three Business Days' prior notice to the Agent in the case of Eurocurrency
Loans and one Business Day's prior notice to the Agent in the case of Base
Rate Loans, stating the proposed date and aggregate principal amount of the
prepayment, prepay the outstanding principal amount of any Revolving Credit
Loans or Swing Loans of such Borrower in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (i) Swing Loans made to U.S. Operating Co.
may be prepaid on notice given by 11:00 a.m. (New York City time) on the date
of prepayment and Swing Loans made to U.K. Operating Co. or Dutch Operating
Co. may be prepaid made on notice given by 11:00 a.m. (New York City time)
two Business Days prior to the date of prepayment; (ii) any prepayment of any
Eurocurrency Loan (including any Swing Loan made to U.K. Operating Co. or
Dutch Operating Co.) shall be made on, and only on, the last day of an
Interest Period for such Loan; and (iii) each partial prepayment shall be in
an aggregate principal amount not less than $500,000 or integral multiples of
$100,000 in excess thereof (or the equivalent thereof in an Alternative
Currency, determined on the date notice of prepayment is given in accordance
with Section 2.17) in the case of Eurocurrency Loans and not less than
$100,000 or integral multiples thereof in the case of Base Rate Loans. Upon
the giving of such notice of prepayment, the principal amount of the Loans
specified to be prepaid shall become due and payable on the date specified
for such prepayment.
(c) Each Term Loan Borrower may, without premium or penalty, upon
at least three Business Days' prior notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, prepay the outstanding
principal amount of the Term Loans made to it, in whole or ratably in part,
together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (i) any prepayment of any
Eurocurrency Loan shall be made on, and only on, the last day of an Interest
Period for such Loan; (ii) each partial prepayment shall be in an aggregate
amount not less than $500,000 or integral multiples of $100,000 in excess
thereof (or the equivalent thereof in an Alternative Currency, determined on
the date notice of prepayment is given in accordance with Section 2.17) and
that any such partial prepayment shall be applied to reduce ratably the
remaining installments of the outstanding principal amount of all Term Loans;
and (iii) unless and until the Additional Term Loans are paid in full, no
prepayment pursuant to this subsection
85
(c) of any other Term Loans shall be made. Upon the giving of such notice of
prepayment, the principal amount of the Loans specified to be prepaid shall
become due and payable on the date specified for such prepayment.
(d) (i) If at any time any Loan Party shall receive payment in
respect of any purchase price adjustment under the Fabral Purchase Agreement,
the Revolving Credit Loans shall be prepaid in an amount equal to the amount of
such payment, and if at any time (A) the equivalent in Dollars of the aggregate
principal amount of Revolving Credit Loans and Swing Loans outstanding at such
time (determined in accordance with Section 2.17) plus the Letter of Credit
Obligations outstanding at such time exceeds the Maximum Amount of Revolver
Liabilities at such time, the Borrowers shall forthwith first prepay the
Revolving Credit Loans and Swing Loans then outstanding in an amount equal to
such excess, together with accrued interest thereon, and, if after such
prepayment, any such excess shall remain, the Borrowers shall provide cash
collateral for all Letter of Credit Obligations in accordance with clause (vii)
below in an amount equal to such remaining excess, or (B) the equivalent in
Dollars of the aggregate principal amount of the Revolving Credit Loans and
Swing Loans of U.S. Operating Co. outstanding at such time plus the Letter of
Credit Obligations of U.S. Operating Co. outstanding at such time exceeds the
Maximum Amount of Revolver Liabilities of U.S. Operating Co. at such time, U.S.
Operating Co. shall forthwith first prepay such Loans in an amount equal to such
excess, together with accrued interest thereon, and, if after such prepayment,
any such excess shall remain, U.S. Operating Co. shall provide cash collateral
for all Letter of Credit Obligations of U.S. Operating Co. in accordance with
clause (vii) below in an amount equal to such remaining excess.
(ii) Each Borrower shall forthwith prepay the Term Loans and, if
there are no Term Loans outstanding, the Revolving Credit Loans and Swing
Loans, and, if there are no Loans outstanding, cash collateralize all Letter
of Credit Obligations in accordance with clause (vii) below, upon receipt by
any Loan Party or any of its Subsidiaries of (A) Asset Sale Proceeds in an
amount equal to such Asset Sale Proceeds, (B) cash payments under any
Investments constituting Asset Sale Proceeds in an amount equal to such
payments, (C) any payments received under the ASP Note in an amount equal to
such payments, and (D) any payments received under the lease, dated as of
June 26, 1997, between Building Products and ASP Corp. pursuant to which
certain Real Estate
86
of Building Products has been leased to ASP Corp. in an amount equal to such
payments, in each case referred to in this clause (ii), together with accrued
interest to the date of such prepayment on the principal amount prepaid,
provided that in the case of any Asset Sale Proceeds and other payments
referred to above, unless and until the amount thereof, when taken together
with all prior Asset Sales made on or after the Effective Date, the Asset
Sale Proceeds of which were not applied to the Loans, is an aggregate amount
in excess of $1,000,000 or involves assets having a Fair Market Value in
excess of $1,000,000 (or the equivalent thereof in an Alternative Currency
determined in accordance with Section 2.17), no payment shall be required
pursuant to this subsection (d)(ii) except if such Asset Sale Proceeds are
subject to subsection (c) of the definition of Asset Sale Proceeds.
(iii) The Borrowers shall prepay the Term Loans and, if there are no
Term Loans outstanding, the Revolving Credit Loans and Swing Loans, and, if
there are no Loans outstanding, cash collateralize all Letter of Credit
Obligations in accordance with clause (vii) below, within 100 days of the last
day of Fiscal Year 1997, in an amount equal to 75% of Excess Cash Flow for the
period commencing on the Closing Date and ending on December 31, 1997, within
100 days of the last day of Fiscal Year 1998, in an amount equal to 75% of
Excess Cash Flow for the period commencing on January 1, 1998 and ending on
December 31, 1998, and within 100 days of the last day of each Fiscal Year
ending after December 31, 1998, 50% of Excess Cash Flow for each such Fiscal
Year, in each case together with accrued interest to the date of such prepayment
on the principal amount prepaid.
(iv) The Borrowers shall, upon receipt by any Loan Party of any
reversion from a defined benefit plan, prepay the Term Loans or, if there are no
Term Loans outstanding, the Revolving Credit Loans and Swing Loans, and, if
there are no Loans outstanding, cash collateralize all Letter of Credit
Obligations in accordance with clause (vii) below, in an amount equal to the
amount of such reversion so received, together with accrued interest to the date
of such prepayment on the amount prepaid. For purposes of this subsection (iv),
reversion is defined as the amount of surplus assets which, upon the termination
of any defined benefit plan, revert to any Loan Party or any of its Subsidiaries
(net of any taxes, after taking into account any available tax credits or
deductions, and excise taxes or penalties thereon).
87
(v) All prepayments of the Term Loans made pursuant to this
subsection (d) shall be applied first to reduce ratably the remaining
installments of the outstanding principal amounts of all U.S. Term Dollar Term A
Loans and U.S. Dollar Term C Loans, and next, to reduce ratably the remaining
installments of the outstanding principal amounts of all other Term Loans;
provided, however, that, if on any date a prepayment of Term Loans or Revolving
Credit Loans (each, a "Loan Type") is required to be made pursuant to this
subsection (d) and the amount of such required prepayment is in excess of the
aggregate amount of Base Rate Loans comprising such Loan Type plus Eurocurrency
Loans comprising such Loan Type other than those having an Interest Period
ending subsequent to such date (such excess being a "Deficit Amount"), then, if
so elected by the Borrowers in a written notice delivered to the Agent prior to
the date such prepayment is due and provided that no Event of Default exists on
the date such payment is due, such Deficit Amount shall be deposited by the
applicable Borrower into a special cash collateral account established by the
Agent in its name and under its sole dominion and control, and the amount
deposited shall be applied to the Loans as set forth above at the earlier of the
occurrence of an Event of Default and at such time or the times as the Interest
Period or Periods with respect to Eurocurrency Loans comprising the applicable
Loan Type, and in an amount equal to the Deficit Amount, shall end.
(vi) If at any time (A) the aggregate principal amount of the Swing
Loans of U.S. Operating Co. outstanding at such time exceeds the lower of (x)
the Swing Loan Lender's Revolving Credit Ratable Portion of the Maximum
Amount of Revolver Liabilities of U.S. Operating Co. at such time and (y) the
Swing Loan Sublimit for U.S. Operating Co., or (B) the aggregate principal
amount of all Swing Loans outstanding at such time exceeds the lower of (x)
the Swing Loan Lender's Revolving Credit Ratable Portion of the Maximum
Amount of Revolver Liabilities at such time and (y) the aggregate Swing Loan
Sublimit for all Operating Companies, or (C) the aggregate principal amount
of the Swing Loans made to U.S. Operating Co. and the Swing Loan Lender's
Revolving Credit Loans made to U.S. Operating Co. outstanding at such time
plus the Swing Loan Lender's participations in Letter of Credit Obligations
of U.S. Operating Co. outstanding at such time exceeds the Swing Loan
Lender's Revolving Credit Ratable Portion of the Maximum Amount of Revolver
Liabilities of U.S. Operating Co. at such time, or (D) the aggregate
principal amount of all Swing Loans and the Swing Loan Lender's Revolving
Credit
88
Loans outstanding at such time plus the Swing Loan Lender's participations in
Letter of Credit Obligations outstanding at such time exceeds the Swing Loan
Lender's Revolving Credit Ratable Portion of the Maximum Amount of Revolver
Liabilities at such time, then the Borrowers shall forthwith prepay the Swing
Loans then outstanding in an amount equal to such excess, together with
accrued interest.
(vii) If at any time cash collateral for the Letter of Credit
Obligations is required pursuant to this Section 2.7, the Borrowers shall
forthwith pay to the Agent immediately available funds in the amount of such
required cash collateral for deposit in the L/C Cash Collateral Account referred
to in Section 8.4, which funds shall be maintained in the L/C Cash Collateral
Account in accordance with the provisions of Section 8.4.
2.8. Conversion/Continuation Option. (a) With respect to each
Eurocurrency Loan of any Borrower other than a Dollar Loan, at the end of any
Interest Period with respect thereto such Eurocurrency Loan shall be continued
as a Eurocurrency Loan for an additional Interest Period selected by such
Borrower pursuant to a written notice (an "IP Notice") delivered to the Agent at
least three Business Days prior to the first day of such Interest Period;
provided, however, that if such Borrower fails to specify an Interest Period for
such Eurocurrency Loan, such Interest Period shall be one month.
(b) With respect to Base Rate Loans and Eurocurrency Loans that are
Dollar Loans of any Borrower other than Swing Loans, such Borrower may elect
at any time to convert Base Rate Loans or any portion thereof to Eurocurrency
Loans, and, at the end of any Interest Period with respect thereto, to
convert Eurocurrency Loans or any portion thereof into Base Rate Loans, or to
continue such Eurocurrency Loans or any portion thereof for an additional
Interest Period, by delivering a written notice, in substantially the form of
Exhibit C hereto (a "Notice of Conversion or Continuation"), to the Agent at
least three Business Days prior to the proposed date of conversion or
continuation specifying (i) the amount and type of conversion or
continuation, (ii) in the case of a conversion to or a continuation of
Eurocurrency Loans, the Interest Period therefor, and (iii) in the case of a
conversion, the date of conversion (which date shall be a Business Day and,
if a conversion from Eurocurrency Loans, shall also be the last day of the
Interest Period therefor); provided, however, that (A) no Notice of
Conversion or Continuation with respect to Base
89
Rate Loans or Eurocurrency Loans that are U.S. Dollar Term B Loans shall be
effective unless given jointly by the applicable Term Loan Borrowers, and (B)
if, with respect to any Eurocurrency Loans that are Dollar Loans of any
Borrower, the Agent does not receive, within the time period required under
the terms of this Section 2.8, a Notice of Conversion or Continuation from
such Borrower containing a permitted election to continue such Eurocurrency
Loans for an additional Interest Period or to convert any such Loans, then,
upon the expiration of the Interest Period therefor, such Loans will be
automatically converted to Base Rate Loans.
(c) With respect to all Eurocurrency Loans, the aggregate of the
Eurocurrency Loans of the same currency for each Interest Period therefor shall
be in the amount of $500,000 or an integral multiple of $100,000 in excess
thereof (or the equivalent thereof in an Alternative Currency determined in
accordance with Section 2.17). Each continuation of any Eurocurrency Loans of
the same currency and each conversion or continuation of any Eurocurrency Loans
of the same currency or of Base Rate Loans shall be allocated among such Loans
of all Lenders ratably. The Agent shall promptly notify each Lender of its
receipt of an IP Notice or a Notice of Conversion or Continuation and of the
contents thereof. Each Notice of Conversion or Continuation and each IP Notice
shall be irrevocable.
(d) Notwithstanding the foregoing provisions of this Section 2.8, no
conversion in whole or in part of Base Rate Loans to Eurocurrency Loans, and no
continuation in whole or in part of Eurocurrency Loans that are Dollar Loans
upon the expiration of any Interest Period therefor, shall be permitted at any
time at which an Event of Default shall have occurred and be continuing, and all
Eurocurrency Loans that are in an Alternative Currency shall be of the duration
therefor provided in Section 2.9(d).
2.9. Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Loan made to it, in each case from the date thereof
until the principal amount thereof shall be paid in full, at the following rates
per annum:
(a) For Base Rate Loans and subject to sub-section (c) below, at a
rate per annum equal at all times to the Base Rate in effect from time to
time plus the Applicable Base Rate Margin, payable, in all cases, quarterly
on the first day of each January, April, July and
90
October and on the date any Base Rate Loan is converted or paid in full, and,
in addition, (i) on the Revolving Credit Commitment Termination Date in the
case of the Revolving Credit Loans and Swing Loans, (ii) the earlier of the
First Maturity Date and the Termination Date in the case of the U.S. Dollar
Term A Loans and (iii) the earlier of the Final Maturity Date and the
Termination Date in the case of the U.S. Dollar Term B Loans and the U.S.
Dollar Term C Loans.
(b) For Eurocurrency Loans and subject to subsection (c) below, at a
rate per annum equal at all times during the applicable Interest Period for each
Eurocurrency Loan to the sum of the Eurocurrency Rate for such Interest Period
plus the Applicable Eurocurrency Margin in effect on the first day of such
Interest Period, payable on the last day of such Interest Period, on the last
day of the third month of each six month Interest Period, and, in addition, (i)
on the Revolving Credit Commitment Termination Date in the case of the Revolving
Credit Loans and Swing Loans, (ii) the earlier of the First Maturity Date and
the Termination Date in the case of the U.S. Dollar Term A Loans, the Dutch
Company Term Loans and the U.K. Operating Co. Term Loans, and (iii) the earlier
of the Final Maturity Date and the Termination Date in the case of the U.S.
Dollar Term B Loans and the U.S. Dollar Term C Loans.
(c) During the continuance of (A) any Event of Default other than an
Event of Default under Section 8.1(c) and (B) any Event of Default under Section
8.1(c) if such Event of Default shall be continuing for a period greater than 30
days after its occurrence:
(i) all Base Rate Loans shall bear interest, payable monthly, at
a rate per annum equal at all times to 2% per annum above the Base Rate in
effect from time to time plus the Applicable Base Rate Margin;
(ii) all Eurocurrency Loans shall bear interest, payable
monthly, at a rate per annum equal at all times to 2% above the
Eurocurrency Rate in effect until the maturity of the Loans or the end of
such Interest Period, whichever occurs first, plus the Applicable
Eurocurrency Margin and thereafter at the greater of (x) 2% per annum
above the rate per annum required to be paid on such Loan immediately
prior to the date on which such Event of Default occurred, and (y) in the
case of Eurocurrency Loans made in Dollars, 2% per annum above the Base
Rate in effect from time to time plus the Applicable Base Rate Margin,
and in the case
91
of Eurocurrency Loans made in an Alternative Currency, 2% per annum above
the Eurocurrency Rate determined from time to time by the Agent for each
period selected by the Agent pursuant to subsection (d) below as if such
period were an Interest Period plus the Applicable Eurocurrency Margin;
provided, however, that in the event that deposits in Dollars, in the
case of Eurocurrency Loans made in Dollars, or in the applicable
Alternative Currency, in the case of Eurocurrency Loans made in an
Alternative Currency, are not being offered by the Agent to prime banks
in the London interbank market for the applicable period or in the
applicable amounts, then the rate under clause (y) for all Eurocurrency
Loans made in Dollars or such Alternative Currency, as the case may be,
shall be 2% per annum above the cost to each Lender (as set forth in the
certificate referred to in subsection (e) of this Section 2.9) of
obtaining, from time to time, alternative funds for such period in the
amount equal to the Eurocurrency Loans made in Dollars or such
Alternative Currency, as the case may be, owed to such Lender plus the
Applicable Eurocurrency Margin; and
(iii) all interest on the Loans not paid when due shall bear
interest, payable monthly, at a rate per annum equal at all times to 2% per
annum above the Base Rate in effect from time to time plus the Applicable
Base Rate Margin.
(d) For purposes of determining the interest rate pursuant to clause
(ii)(y) of subsection (c) above for a Eurocurrency Loan made in an Alternative
Currency, the period between the date of occurrence of an Event of Default and
the date such Eurocurrency Loan is paid in full shall be divided into successive
periods (each of which other than the first shall begin on the last day of the
next preceding period) of one day, one week, one month or three months as the
Agent may from time to time select.
(e) Without prejudice to the rights of any Lender under the
foregoing provisions of Section 2.9(c) and (d), each Borrower shall indemnify
each Lender against any loss or expense which it may sustain or incur as a
result of the failure by such Borrower to pay when due any principal of any
Loan, to the extent that any such loss or expense is not recovered pursuant
to the foregoing provisions. A certificate of any such Lender setting forth
the basis for the determination of the interest due and of the amounts
necessary to indemnify such Lender in respect of such loss
92
or expense, submitted to such Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes absent manifest error.
(f) Notwithstanding anything herein or in the Notes to the contrary,
but without prejudice to the first sentence of Section 10.8, if at any time the
applicable interest rate, together with all fees and charges which are treated
as interest under applicable law (collectively the "Charges"), as provided for
herein or in any other document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any Lender, shall exceed
the maximum lawful rate ("Maximum Rate") which may be contracted for, charged,
taken, received or reserved by any Lender in accordance with applicable law, the
rate of interest payable under the Note or Notes held by such Lender, together
with all Charges payable to such Lender, shall be limited to the Maximum Rate.
2.10. Interest Rate Determination and Protection. (a) The
Eurocurrency Rate for each Interest Period for Eurocurrency Loans shall be
determined by the Agent two Business Days before the first day of such Interest
Period.
(b) The Agent shall give prompt notice to each Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.9(b) and (c).
(c) If, with respect to any Loans made in any Alternative Currency,
the Agent determines that, or if the Majority Lenders notify the Agent that,
deposits in such Alternative Currency in the amount of such Loans are not
generally available, each Borrower shall, within three days following notice
from the Agent, prepay all Loans made in such Alternative Currency and the
obligation of the Lenders to make Loans in such Alternative Currency shall be
suspended until the Agent shall notify the Borrowers that the Agent or the
Majority Lenders, as the case may be, have determined that deposits in such
Alternative Currency are generally available.
(d) If, with respect to Eurocurrency Loans, the Agent determines
that, or if the Majority Lenders notify the Agent that, the Eurocurrency Rate
for any Interest Period therefor will not adequately reflect the cost to such
Majority Lenders of making such Loans or funding or maintaining their
respective Eurocurrency Loans for such
93
Interest Period, the Agent shall forthwith so notify each Borrower and the
Lenders, whereupon:
(i) each Eurocurrency Loan made in Dollars will automatically,
on the last day of the then existing Interest Period therefor, convert into
a Base Rate Loan, and the obligations of the Lenders to make Eurocurrency
Loans or to convert Base Rate Loans into Eurocurrency Loans shall be
suspended until the Agent shall notify the Borrowers that the Agent or the
Majority Lenders, as the case may be, have determined that the
circumstances causing such suspension no longer exist;
(ii) in the case of Eurocurrency Loans made in an Alternative
Currency, the Agent shall (after consultation with each Lender) give notice
(a "Substitute Rate Notice") to each Borrower of that rate of interest
agreed upon by the Agent and the Lenders as the rate at which the Lenders
are prepared to lend an amount equal to the then unpaid amount of each such
Eurocurrency Loan and the Interest Period applicable thereto (such rate of
interest being a "Substitute Eurocurrency Rate"), which Substitute Rate
Notice shall set forth the computations made by the Agent in determining
such Substitute Eurocurrency Rate, and which computations shall reflect (A)
the cost to each Lender of funding for such Interest Period said
Eurocurrency Loan from alternative sources plus (B) the Applicable
Eurocurrency Margin, and, unless such Borrower elects to prepay in full all
Eurocurrency Loans of such Borrower in accordance with clause (iii) below,
the rate of interest applicable to each of its Eurocurrency Loans made in
an Alternative Currency shall be the Substitute Eurocurrency Rate as
determined pursuant to this clause (ii), and the Agent shall then promptly
notify such Borrower and each Lender to such effect; and
(iii) each Borrower may, within three days after receiving any
Substitute Rate Notice from the Agent, give notice (the giving of which
shall be irrevocable) to the Agent of its election to prepay in full all
outstanding Eurocurrency Loans made to such Borrower in an Alternative
Currency and the date of such prepayment (which date shall be a Business
Day not less than three nor more than five days after the date of such
notice), and if such Borrower so elects to prepay, it shall be obligated
to pay on such date the
94
unpaid amount of all outstanding Eurocurrency Loans made by each Lender
to such Borrower in an Alternative Currency, together with an amount
equal to (A) the cost to such Lender of funding such Loans for the period
from the last interest payment date applicable to such Loans to the date
of prepayment pursuant to this clause (iii), plus (B) the Applicable
Eurocurrency Margin, plus (C) any other amounts required hereunder to be
paid by such Borrower (all such amounts to be determined by such Lender
and notified by the Agent to such Borrower).
2.11. Increased Costs. If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation (other than any
change by way of imposition or increase of reserve requirements included in
determining the Eurocurrency Rate Reserve Percentage) or (ii) compliance with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining any
Eurocurrency Loans, then each Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost, provided that the Loan Parties, CVC U.S. or CVC Europe
shall have the right to replace such Lender in accordance with the provisions of
Section 10.7 applicable to assignments. A certificate as to the amount of such
increased cost, submitted to such Borrower and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error. If such
Borrower so notifies the Agent within five Business Days after any Lender
notifies such Borrower of any increased cost pursuant to the foregoing
provisions of this Section 2.11, such Borrower may either (i) prepay in full all
Eurocurrency Loans of such Lender then outstanding in accordance with Section
2.7(b) and (c) and, additionally, reimburse such Lender for such increased cost
in accordance with this Section 2.11 or (ii) in the case of Dollar Loans only,
convert all outstanding Eurocurrency Loans made to it by the Lenders into Base
Rate Loans in accordance with Section 2.8 and, additionally, reimburse such
Lender for such increased cost in accordance with this Section 2.11.
2.12. Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation
of any law or regulation
95
shall make it unlawful, or any central bank or other Governmental Authority
shall assert that it is unlawful, for any Lender or its Eurocurrency Lending
Office to make Eurocurrency Loans in Dollars or in any Alternative Currency
or to continue to fund or maintain Eurocurrency Loans in Dollars or in any
Alternative Currency, then, on notice thereof and demand therefor by such
Lender to the Borrowers through the Agent, (i) the obligation of such Lender
to make or to continue Eurocurrency Loans in Dollars or in such Alternative
Currency, as the case may be, and to convert Base Rate Loans into
Eurocurrency Loans in Dollars or in such Alternative Currency, as the case
may be, shall terminate and (ii) the Borrowers shall forthwith prepay in full
all Eurocurrency Loans of such Lender in Dollars or in such Alternative
Currency, as the case may be, then outstanding, together with interest
accrued thereon, unless, in the case of the Dollar Loans only, within five
Business Days of such notice and demand, all outstanding Eurocurrency Loans
made by the Lenders are converted into Base Rate Loans.
2.13. Capital Adequacy. If (i) the introduction of or any change
in or in the interpretation of any law or regulation, (ii) compliance with
any law or regulation, or (iii) compliance with any guideline or request from
any central bank or other Governmental Authority (whether or not having the
force of law) affects or would affect the amount of capital required or
expected to be maintained by any Lender or the Issuer or any corporation
controlling any Lender or the Issuer and such Lender or the Issuer reasonably
determines that such amount is based upon the existence of such Lender's or
Issuer's Commitments, Loans and commitments in respect of Letters of Credit
and its other commitments and loans of this type, then, upon demand by such
Lender or the Issuer (with a copy of such demand to the Agent), each Borrower
shall pay to the Agent for the account of such Lender or the Issuer, from
time to time as specified by such Lender or the Issuer, additional amounts
sufficient to compensate such Lender or the Issuer in the light of such
circumstances, to the extent that such Lender or the Issuer reasonably
determines such increase in capital to be allocable to the existence of such
Lender's Commitments and Loans or the Issuer's Commitments and agreements
herein with respect to Letters of Credit, provided that the Loan Parties, CVC
U.S. or CVC Europe shall have the right to replace such Lender in accordance
with the provisions of Section 10.7 applicable to assignments. A certificate
as to such amounts submitted to such Borrower and the Agent by
96
such Lender or the Issuer shall be conclusive and binding for all purposes
absent manifest error.
2.14. Payments and Computations. (a) Each Borrower shall make each
payment hereunder and under the Notes, except with respect to principal of,
interest on, and other amounts relating to, Loans denominated in an Alternative
Currency, not later than 11:00 A.M. (New York City time) on the day when due, in
Dollars, to the Agent in immediately available funds by deposit of such funds to
the Agent's account maintained at the Payment Office for Dollars in New York
City, without set-off or counterclaim. Each Borrower shall make each payment
hereunder and under the Notes with respect to principal of, interest on, and
other amounts relating to Loans denominated in an Alternative Currency not later
than 11:00 A.M. (at the Payment Office for such Alternative Currency) on the day
when due in such Alternative Currency to the Agent in immediately available
funds by deposit of such funds to the Agent's account maintained at such Payment
Office. The Agent will promptly thereafter cause to be distributed in like
funds relating to the payment of principal or interest or fees (other than
amounts payable pursuant to Section 2.11, 2.12, 2.13, 2.15, 2.19 or 2.20) to the
Lenders and the Issuer, in accordance with their respective Ratable Portions,
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Payment received by the Agent
after 11:00 A.M. (New York City time or at the Payment Office for the
Alternative Currency, as the case may be) shall be deemed to be received on the
next Business Day.
(b) Each Borrower hereby authorizes each Lender and the Issuer, if
and to the extent payment owed to such Lender or the Issuer is not made when due
hereunder or under any Loan held by such Lender or any Letter of Credit
Obligation, to charge from time to time against any or all of such Borrower's
accounts with such Lender or the Issuer any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of fees shall be made by the Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the
97
last day) occurring in the period for which such interest and fees are
payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided, however, that if such extension would cause payment of interest on or
principal of any Eurocurrency Loan to be made in the next calendar month or if
such extension would cause payment of principal of any Loan to be made in the
next calendar year, such payment shall be made on the next preceding Business
Day.
(e) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due hereunder to the Lenders that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
(f) If any Revolving Credit Lender (a "Non-Funding Lender") has (x)
failed to make a Revolving Credit Loan required to be made by it hereunder, and
the Agent has determined that such Revolving Credit Lender is not likely to make
such Revolving Credit Loan or (y) given notice to the Borrowers or the Agent
that it will not make, or that it has disaffirmed or repudiated any obligation
to make, Revolving Credit Loans, in each case by reason of the provisions of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989 or
otherwise, any payment made on account of the principal of the Revolving Credit
Loans outstanding shall be made as follows:
(i) in the case of any such payment made on any date when and
to the extent that, in the determina-
98
tion of the Agent, the Operating Companies would be able, under the terms
and conditions hereof, to reborrow the amount of such payment under the
Revolving Credit Commitments and to satisfy any applicable conditions
precedent set forth in Article III to such reborrowing, such payment
shall be made on account of the outstanding Revolving Credit Loans held
by the Revolving Credit Lenders other than the Non-Funding Lender pro
rata according to the respective outstanding principal amounts of the
Revolving Credit Loans of such Revolving Credit Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Revolving Credit Lenders pro
rata according to the respective outstanding principal amounts of such
Revolving Credit Loans; and
(iii) any payment made on account of interest on the Revolving
Credit Loans shall be made pro rata according to the respective amounts of
accrued and unpaid interest due and payable on the Revolving Credit Loans
with respect to which such payment is being made.
(g)(i) The aggregate of each of the payments made by the
applicable Borrowers pursuant to Sections 2.6(b)(ii) and 2.6(b)(iii) under the
U.S. Dollar Term B Loans and the U.S. Dollar Term C Loans, respectively, shall
be applied first to reduce the outstanding principal amount of all U.S. Dollar
Term C Loans, and next to reduce the outstanding principal amount of all U.S.
Dollar Term B Loans.
(ii) The aggregate of each of the payments made by the
applicable Borrowers pursuant to Sections 2.6(b)(i), 2.6(b)(iv) and 2.6(b)(v)
under the U.S. Dollar Term A Loans, the Dutch Company Term Loans and the U.K.
Operating Co. Term Loans, respectively, shall be applied first to reduce the
outstanding principal amount of all U.S. Dollar Term A Loans, and next to reduce
ratably the outstanding principal amounts of all Dutch Company Term Loans and
U.K. Operating Co. Term Loans.
2.15. Taxes. (a) Any and all payments by each Borrower under each
Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender, the Issuer and the
99
Agent, (i) taxes measured by its net income, franchise and similar taxes
imposed on it, by the jurisdiction under the laws of which such Lender, the
Issuer or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender and the Issuer, taxes
measured by its net income, franchise and similar taxes imposed on it, by the
jurisdiction of such Lender's or the Issuer's Applicable Lending Office or
any political subdivision thereof, and (ii) if such Lender, the Issuer or the
Agent is entitled at such time to a total or partial exemption from
withholding that is required to be evidenced by a United States Internal
Revenue Service Form 1001 or 4224 or United Kingdom Inland Revenue Form FD13
or, in each case, any successor or additional form, taxes imposed by reason
of any failure of such Lender, the Issuer or the Agent to deliver to the
Agent or the Borrowers, from time to time as required by the Agent or the
Borrowers, such Form 1001, 4224 or FD13 (as applicable) or, in each case, any
successor or additional form, completed in a manner reasonably satisfactory
to the Agent and the Borrowers (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If any Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender, the Issuer or
the Agent (i) the sum payable shall be increased (the "Gross-Up") as may be
necessary so that after making all required deductions (including, without
limitation, deductions applicable to additional sums payable under this
Section 2.15) such Lender, the Issuer or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii)
such Borrower shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law, and (iv) such
Borrower shall deliver to the Agent evidence of such payment to the relevant
taxation or other authority.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies of the United States or any political subdivision thereof or any
applicable foreign jurisdiction which arise from any payment made under any Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document (collectively, "Other Taxes").
100
(c) Each Borrower will indemnify each Lender, the Issuer and
the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender, the Issuer or the Agent
(as the case may be) and any liability (including, without limitation, for
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Lender,
the Issuer or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes, each Borrower will furnish to the Agent, at its address referred to in
Section 10.2, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.15 shall survive the payment in full of the
Obligations.
(f) Prior to the Effective Date in the case of the Agent, the
Issuer and each Lender that is a signatory hereto, and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender or Issuer in
the case of each other Lender and successor Issuer, and from time to time
thereafter if requested by the Borrowers or the Agent, the Agent, each Lender
and the Issuer shall, if such Person is organized under the laws of a
jurisdiction outside the United States and is entitled to an exemption from
United States withholding tax or is subject to such tax at a reduced rate
under an applicable tax treaty, (i) if it is a "bank", within the meaning of
Section 881(c)(3)(A) of the Code, provide the Agent and the Borrowers with an
IRS Form 4224 or Form 1001 or other applicable form, certificate or document
prescribed by the IRS and (ii) if it is not a "bank," within the meaning of
Section 881(c)(3)(A) of the Code, provide the Agent and the Borrowers with an
IRS Form W-8 or successor form (together with a certificate, in substantially
the form of Exhibit Q, certifying that the Agent, such Lender or the Issuer
(as the case may be) is not a "bank", within the meaning of Section
881(c)(3)(A) of the Code), in each case certifying as to the Agent's, such
Lender's or the Issuer's entitlement to such exemption or reduced rate with
respect to all payments to be made to the Agent, such Lender or the Issuer
hereunder and under the
101
Notes. Unless the Borrowers and the Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or under
any Note are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrowers or the
Agent shall withhold taxes from such payments at the applicable statutory
rate in the case of payments to or for the Agent, any Lender or the Issuer,
as the case may be, that is organized under the laws of a jurisdiction
outside the United States. Any reduction in the payment to the Agent, any
Lender or the Issuer (as the case may be) resulting from the Agent's, such
Lender's or the Issuer's failure to comply with this Section 2.15(f) shall
not entitle the Agent, such Lender or the Issuer (as the case may be) to a
Gross-Up provided in Section 2.15(a).
(g) The Agent, any Lender or the Issuer (as the case may be)
claiming any additional amounts payable pursuant to this Section 2.15 shall
use its best efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts which may thereafter accrue and would
not, in the reasonable judgment of the Agent, such Lender or the Issuer (as
the case may be), be otherwise disadvantageous to the Agent, such Lender or
the Issuer (as the case may be).
2.16. Sharing of Payments, Etc. (a) If any Revolving Credit
Lender shall obtain any payment, whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, on account of the Loans made
by it (other than pursuant to Section 2.11, 2.12, 2.13, 2.15, 2.19 or 2.20),
then, if there is any Reimbursement Obligation outstanding in respect of
which the Issuer has not received payment in full from such Revolving Credit
Lender pursuant to Section 2.19(h), or if there are any Swing Loans
outstanding and the Swing Loan Lender has not received payment in full from
such Revolving Credit Lender pursuant to a notice or demand given or made
pursuant to Section 2.20(e), then such Revolving Credit Lender shall first
purchase a participation in all such Reimbursement Obligations in an amount
equal to the lesser of such payment obtained by such Revolving Credit Lender
and the amount of such Reimbursement Obligations for which the Issuer has not
so received payment in full, and shall next purchase a participation in such
Swing Loans in an amount equal to the lesser of the remaining amount of such
payment obtained by such Revolving Credit Lender and the amount of such Swing
Loans for which the
102
Swing Loan Lender has not so received payment in full from such Revolving
Credit Lender.
(b) If, after giving effect to the provisions of subsection (a)
above, any Lender shall obtain any payment, either voluntary, involuntary,
through the exercise of any right of set-off, or otherwise (each a
"Payment"), on account of the Loans made by it (other than pursuant to
Section 2.11, 2.12, 2.13, 2.15, 2.19 or 2.20), as a result of which the
unpaid principal portion of its Related Claims shall be less than its Ratable
Portion of the Related Claims of any other Related Lender, it shall be deemed
to have simultaneously purchased from such other Related Lender at face
value, and shall promptly pay to such other Related Lender the purchase price
for, a participation in the Related Claims of such other Related Lender, so
that the aggregate amount of the unpaid Related Claims and participations
therein held by each Related Lender shall be in the same proportion to the
aggregate amount of all Related Claims then outstanding as the amount of its
Related Claims prior to its obtaining such Payment was to the amount of all
Related Claims outstanding prior to its obtaining such Payment; provided,
however, that if all or any portion of such Payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including, without limitation, the right
of set-off) with respect to such participation as fully as if such Lender
were the direct creditor of such Borrower in the amount of such participation.
2.17. Currency Equivalents. (i) The equivalent in Dollars of any
Alternative Currency shall be determined by using the quoted spot rate at
which Paribas' principal office in London offers to exchange Dollars for such
Alternative Currency in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined, and (ii) the
equivalent in any Alternative Currency of Dollars shall be determined by
using the quoted spot rate at which Paribas' principal office in
103
London offers to exchange such Alternative Currency for Dollars in London at
11:00 A.M. (London time) two Business Days prior to the date on which such
equivalent is to be determined. Except as specified in Section 2.4(d), the
equivalent in Dollars of each Eurocurrency Loan made in an Alternative
Currency shall be recalculated hereunder on each date that it shall be
necessary to determine the unused portion of each Lender's Commitment, or any
or all Loans outstanding on such date, it being understood that all payments
of principal or interest on Loans shall be made in the currency in which such
Loans were made.
2.18. Joint and Several Liability. (a) The Obligations in respect
of the U.S. Dollar Term B Loans (for purposes of this Section 2.18, the "Term
B Loan Obligations") shall constitute one joint and several direct and
general obligation of U.S. Operating Co., U.K. Operating Co. and Dutch
Company notwithstanding whether such Loans are stated to be made to all or
any of such Borrowers, and notwithstanding anything to the contrary contained
herein, each of such Borrowers shall be directly and unconditionally liable
to each Lender for all Term B Loan Obligations and shall have the obligations
of co-maker with respect thereto, it being agreed that the U.S. Dollar Term B
Loans inure to the benefit of all such Borrowers and that the Lenders are
relying on the joint and several liability of such Borrowers as co-makers in
making such Loans hereunder. Each such Borrower hereby unconditionally and
irrevocably agrees that upon default in the payment when due (whether at
stated maturity, by acceleration or otherwise) of any principal of, or
interest on, any of the U.S. Dollar Term B Loans, it will forthwith pay the
same, without notice or demand.
(b) No payment or payments made by any Borrower or any other Person
or received or collected by the Lenders from any Borrower or any other Person
by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Term B Loan Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of each of U.S. Operating Co., U.K. Operating
Co. or Dutch Company under this Agreement, which shall remain liable for such
Term Loan Obligations until all such Obligations are paid in full and this
Agreement is terminated.
(c) Each of U.S. Operating Co., U.K. Operating Co. and Dutch
Company agrees that the joint and several liability of such Borrowers with
respect to any of the Term B Loan Obligations shall not be impaired or
affected by any
104
modification, supplement, extension or amendment of any contract or agreement
to which any other of such Borrowers may hereafter agree (other than an
agreement signed by the Lenders specifically releasing such liability), nor
by any delay, extension of time, renewal, compromise or other indulgence
granted by the Lenders with respect to any of the Term B Loan Obligations nor
by any other agreement or arrangements whatever with any other of such
Borrowers or with anyone else, each such Borrower hereby waiving all notice
of such delay, extension, release, substitution, renewal, compromise or other
indulgence, and hereby consent to be bound thereby as fully and effectually
as if it had expressly agreed thereto in advance. The liability of each such
Borrower is direct and unconditional as to all of the Term B Loan
Obligations, and may be enforced without requiring the Lender to resort to
any other right, remedy or security. Each such Borrower hereby expressly
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations, the Notes, this Agreement or any other
Loan Document and any requirement that the Lender protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take
any action against any Loan Party or any other Person or any Collateral.
2.19. Letter of Credit Facility. (a) On the terms and subject to
the conditions contained in this Agreement, the Issuer agrees to issue, at
the request of any Operating Company and for the account of such Operating
Company, one or more letters of credit (each such letter of credit and each
Existing Letter of Credit being a "Letter of Credit") from time to time
during the period commencing on the Effective Date and ending 30 days prior
to the Revolving Credit Commitment Termination Date; provided, however, that
the Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall purport by its terms to enjoin or restrain the Issuer
from issuing such Letter of Credit or any Requirement of Law applicable to
the Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Issuer
shall prohibit, or request that the Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuer with respect to such Letter of Credit any
restriction or reserve or capital
105
requirement (for which the Issuer is not otherwise compensated) or result
in any unreimbursed loss, cost or expense which the Issuer in good xxxxx
xxxxx material to it;
(ii) the Issuer shall have received written notice from the
Agent, any Lender or any Loan Party, on or prior to the Business Day prior
to the requested date of issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Article III is not then
satisfied;
(iii) after giving effect to the issuance of such Letter of
Credit, the Letter of Credit Obligations exceed $5,000,000;
(iv) the amount of the Letter of Credit requested exceeds, in
the case of U.K. Operating Co. or Dutch Operating Co., the Available Credit
or, in the case of U.S. Operating Co., the Available U.S. Credit; or
(v) fees due in connection with a requested issuance have not
been paid.
None of the Lenders, in such capacity, shall have any obligation to issue any
Letter of Credit.
(b) In no event shall:
(i) the expiration date of any Letter of Credit be more than one year
after the date of issuance thereof, nor shall the expiration date of any
Letter of Credit fall after the third Business Day preceding the Revolving
Credit Commitment Termination Date; or
(ii) the Issuer issue any Letter of Credit for the purpose of
supporting the issuance of any letter of credit by any other Person or for
any purpose not specified in Section 4.18(b).
(c) Prior to the issuance of each Letter of Credit for the account of
any Operating Company, and as a condition of such issuance and of the
participation of each Revolving Credit Lender (other than the Issuer) in the
Letter of Credit Obligations arising with respect thereto, such Operating
Company shall have delivered to the Issuer a letter of credit reimbursement
agreement, in a form satisfactory to the Issuer (a "Letter of Credit
Reimbursement Agreement"), signed by such Operating Company,
106
and such other documents or items as may be required pursuant to the terms
thereof. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms of this
Agreement shall govern.
(d) In connection with the issuance of each Letter of Credit for
the account of any Operating Company, such Operating Company shall give the
Issuer and the Agent at least two Business Days' prior written notice (a
"Letter of Credit Request"), in substantially the form of Exhibit R, of the
requested issuance of such Letter of Credit. Such notice shall be
irrevocable and shall specify (i) the stated amount of the Letter of Credit
requested, which stated amount shall not be less than $2,500, (ii) the date
of issuance of such requested Letter of Credit (which day shall be a Business
Day), (iii) the date on which such Letter of Credit is to expire (which date
shall be a Business Day), and (iv) the Person for whose benefit the requested
Letter of Credit is to be issued. Such notice, to be effective, must be
received by the Issuer and the Agent not later than 11:00 A.M. (New York City
time) on the last Business Day on which notice can be given under the
immediately preceding sentence.
(e) Subject to the terms and conditions of this Section 2.19 and
provided that the applicable conditions set forth in Article III are
satisfied, the Issuer shall, on the requested date, issue a Letter of Credit
on behalf of the Operating Company that requested such Letter of Credit in
accordance with the Issuer's usual and customary business practices. On the
date of the proposed issuance of the Letter of Credit the Agent shall confirm
to the Issuer that the applicable conditions in Article III are satisfied.
(f) Immediately upon the issuance by the Issuer of a Letter of
Credit in accordance with the terms and conditions of this Agreement (or, in
the case of Existing Letters of Credit, upon their issuance pursuant to the
Existing Credit Agreement), the Issuer shall be deemed to have sold and
transferred to each Revolving Credit Lender, and each Revolving Credit Lender
shall be deemed irrevocably and unconditionally to have purchased and
received from the Issuer, without recourse or warranty, an undivided interest
and participation, to the extent of such Revolving Credit Lender's Revolving
Credit Ratable Portion, in such Letter of Credit and the obligations of the
Operating Company that requested such Letter of Credit with respect thereto
(including, without limitation, all Letter of Credit
107
Obligations with respect thereto) and any security therefor and guaranty
pertaining thereto.
(g) In determining whether to pay under any Letter of Credit, the
Issuer shall have no obligation relative to the Lenders other than to confirm
that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to comply on their face
with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by the Issuer under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence or willful misconduct,
shall not put the Issuer under any resulting liability to any Lender.
(h) In the event that the Issuer makes any payment under any Letter
of Credit and the Operating Company that is the account party thereon shall
not have repaid such amount to the Issuer pursuant to Section 2.19(l), the
Issuer shall promptly notify the Agent, which shall promptly (and in any
event by no later than 11:00 a.m. (New York City time) on the first Business
Day following the date of receipt by the Agent of such notice) notify each
Revolving Credit Lender of such failure, and each Revolving Credit Lender
shall promptly (and in any event by no later than 1:00 p.m. (New York City
time) on the date of receipt by such Revolving Credit Lender of such notice,
or, in the case of any notice received by such Revolving Credit Lender on a
day that is not a Business Day or after 11:00 a.m. (New York City time) on
any Business Day, by no later than 11:00 a.m. (New York City time) on the
first Business Day following such day of receipt) and unconditionally pay to
the Agent for the account of the Issuer the amount of such Revolving Credit
Lender's Revolving Credit Ratable Portion of such payment in the currency of
the payment by the Issuer and in immediately available funds. If and to the
extent any Revolving Credit Lender shall not have so made such Revolving
Credit Lender's Revolving Credit Ratable Portion of the amount of such
payment available to the Agent for the account of the Issuer on the date
specified above, such Revolving Credit Lender agrees to pay to the Agent for
the account of the Issuer forthwith on demand such amount together with
interest thereon, for each day from such date until the date such amount is
paid to the Agent for the account of the Issuer, at the Federal Funds Rate.
The failure of any Revolving Credit Lender to make available to the Agent for
the account of the Issuer such Revolving Credit Lender's Revolving Credit
Ratable Portion of any such payment shall not relieve any other Revolving
Credit Lender
108
of its obligation hereunder to make available to the Agent for the account of
the Issuer such Revolving Credit Lender's Revolving Credit Ratable Portion of
such payment on the date such payment is to be made, and no Revolving Credit
Lender shall be responsible for the failure of any other Revolving Credit
Lender to make available to the Agent for the account of the Issuer such
other Revolving Credit Lender's Revolving Credit Ratable Portion of any such
payment.
(i) Whenever the Issuer receives a payment of a Reimbursement
Obligation as to which the Agent has received for the account of the Issuer any
payment from a Revolving Credit Lender pursuant to Section 2.19(h), the Issuer
shall pay to the Agent and the Agent shall promptly pay to such Revolving Credit
Lender, in immediately available funds, an amount equal to such Revolving Credit
Lender's pro rata share of such payment based on the amount such Revolving
Credit Lender has paid in respect of such Reimbursement Obligation.
(j) Upon the request of any Revolving Credit Lender, the Issuer shall
furnish to such Revolving Credit Lender copies of any Letter of Credit
Reimbursement Agreement to which the Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit Lender.
(k) The obligations of the Revolving Credit Lenders to make payments
to the Agent for the account of the Issuer with respect to Letters of Credit
shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances (except as expressly provided in Section
2.19(g)), including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement,
the Existing Credit Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right
which any Loan Party may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, the Issuer, any Lender
or any other Person, whether in connection with this Agreement, the
Existing Credit Agreement, any Letter of Credit, the
109
transactions contemplated herein or any unrelated transaction (including,
without limitation, any underlying transaction between any Loan Party and
the beneficiary named in any Letter of Credit);
(iii) any draft, certificate or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Collateral
Documents; or
(v) the occurrence of any Default or Event of Default.
(l) Each Operating Company agrees to pay to the Issuer the amount
of all Reimbursement Obligations owing to the Issuer under any Letter of
Credit immediately when due, irrespective of any claim, set-off, defense or
other right which such Operating Company or any other Loan Party may have at
any time against the Issuer or any other Person. Each Operating Company
agrees to reimburse the Issuer for all amounts which the Issuer pays under
such Letter of Credit no later than the time specified in such Letter of
Credit Reimbursement Agreement. If any Operating Company does not pay
(either from the proceeds of a Borrowing or otherwise) any such Reimbursement
Obligation when due, such Reimbursement Obligation shall immediately
constitute, without necessity of further act or evidence, a loan to such
Operating Company made by the Issuer except to the extent the Agent has
received payment from the Revolving Credit Lenders for the account of the
Issuer pursuant to Section 2.19(h). Upon the making of such payment by any
Revolving Credit Lender, such Revolving Credit Lender shall be deemed to have
made a Revolving Credit Loan to such Operating Company in the amount of such
payment. If any payment made by or on behalf of any Operating Company and
received by the Issuer with respect to any Letter of Credit is rescinded or
must otherwise be returned by the Issuer for any reason and if the Issuer has
made payment to the Agent on account thereof pursuant to Section 2.19(i),
each Revolving Credit Lender shall, upon notice by the Issuer, forthwith pay
over to the Issuer an amount equal to such Revolving Credit Lender's pro rata
share of the amount which must be so returned by the Issuer based on the
respective amounts paid
110
in respect thereof to the Revolving Credit Lenders pursuant to Section
2.19(i).
(m) Each Operating Company agrees to pay the following amounts with
respect to Letters of Credit issued by it:
(i) to the Issuer for its own account, with respect to each
Letter of Credit issued by the Issuer, an administration fee equal to the
greater of $500 and 1/2 of 1% of the stated amount of such Letter of
Credit, payable in advance on the date of issuance of such Letter of
Credit;
(ii) to the Agent for the ratable benefit of Issuer and the
Revolving Credit Lenders, with respect to each Letter of Credit, a fee
equal to 2.75% per annum of the maximum amount available from time to time
to be drawn under such Letter of Credit, payable in advance on the first
day of each January, April, July and October and on the termination of such
Letter of Credit, and calculated on the basis of a 360-day year for the
actual number of days elapsed; provided, however, that during the
continuance of (A) an Event of Default other than an Event of Default under
Section 8.1(c) and (B) any Event of Default under Section 8.1(c) if such
Event of Default shall be continuing for a period greater than 30 days
after its occurrence, such fee shall be increased to 4.75% per annum and
shall be payable on demand; and
(iii) to the Issuer, with respect to the issuance, amendment or
transfer of each Letter of Credit and each drawing made thereunder,
documentary and processing charges in accordance with the Issuer's standard
schedule for such charges in effect at the time of issuance, amendment,
transfer or drawing, as the case may be.
2.20. Swing Loans. (a) The Swing Loan Lender, in its sole
discretion, on the terms and subject to the conditions contained in this
Agreement, may make advances in Dollars to U.S. Operating Co. or in an
Alternative Currency to U.K. Operating Co. or Dutch Operating Co. (each a
"Swing Loan") from time to time on any Business Day during the period from
the Effective Date until the Business Day preceding the Revolving Credit
Commitment Termination Date in an amount not to exceed at any time
outstanding the Swing Loan Availability at such time for such Operating
Company;
111
provided, however, that no Swing Loan shall be made unless the conditions
precedent set forth in Section 3.3 shall have been satisfied. All Swing
Loans made to Dutch Operating Co. or U.K. Operating Co. shall be in an
Alternative Currency and shall be made as Eurocurrency Loans having the
requested Interest Periods (the amount of which Eurocurrency Loans having a
specified Interest Period may, if agreed to by the Agent, notwithstanding the
definition of Interest Period, be in less than the amount specified in clause
(d) of the definition of Interest Period and may, if agreed to by the Agent,
be other than the durations specified in the definition of Interest Period)
and all Swing Loans made to U.S. Operating Co. shall be made as Base Rate
Loans. The Swing Loan Lender shall be entitled to rely on the most recent
Borrowing Base Certificate of the Operating Companies delivered to the Swing
Loan Lender. Within the limits set forth above, Swing Loans repaid may be
reborrowed under this Section 2.20.
(b) Each borrowing of a Swing Loan by U.S. Operating Co. shall be
made on notice given by U.S. Operating Co. to the Swing Loan Lender not later
than 3:00 p.m. (New York City time) on the day of the proposed borrowing
specifying the amount thereof, and the amount thereof shall be made available
to U.S. Operating Co. by the Swing Loan Lender at the address of the Swing
Loan Lender notified by it to U.S. Operating Co. Each borrowing of a Swing
Loan by Dutch Operating Co. or U.K. Operating Co. shall be made on notice
given by such Operating Company to the Swing Loan Lender not later than 11:00
a.m. (New York City time) two business days prior to the date of the proposed
borrowing specifying the amount thereof and the initial Interest Period
therefor (which, notwithstanding the definition of Interest Period may, if
agreed to by the Agent, be other than the durations specified in the
definition of Interest Period), and the amount thereof shall be made
available to such Operating Company at the address of the Swing Loan Lender
notified by it to such Operating Company.
(c) The Swing Loan Lender shall notify the Agent in writing (which
may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time)
on the first Business Day of each week, of the aggregate principal amount of
the Swing Loans made to Dutch Operating Co. and U.K. Operating Co. then
outstanding (the "Foreign Swing Loans") and of the aggregate principal amount
of Swing Loans made to U.S. Operating Co. then outstanding ("U.S. Swing
Loans"), and each Revolving Credit Lender shall, at such times and in the
112
manner provided in subsection (e) below, pay to the Agent, for the account of
the Swing Loan Lender, such Revolving Credit Lender's Ratable Portion of such
outstanding Swing Loans.
(d) During the continuance of an Event of Default, the Swing Loan
Lender may demand that each Revolving Credit Lender pay to the Agent, for the
account of the Swing Loan Lender, in the manner provided in subsection (e)
below, such Revolving Credit Lender's Revolving Credit Ratable Portion of all
or a portion of the outstanding Swing Loans, which demand shall be made
through the Agent, shall be in writing and shall specify the outstanding
principal amount of Swing Loans demanded to be paid.
(e) The Agent shall forward each notice referred to in subsection
(c) above and each demand referred to in subsection (d) above to each
Revolving Credit Lender on the day such notice or such demand is received by
the Agent (except that any such notice or demand received by the Agent after
2:00 p.m. (New York City time) on any Business Day or received on a day that
is not a Business Day shall not be required to be forwarded to the Revolving
Credit Lenders by the Agent until the next succeeding Business Day), together
with a statement prepared by the Agent specifying the amount of each
Revolving Credit Lender's Revolving Credit Ratable Portion of the aggregate
principal amount of the Swing Loans stated to be outstanding in such notice
or demanded to be paid pursuant to such demand and the Interest Periods for
all Foreign Swing Loans, and, notwithstanding whether or not the conditions
precedent set forth in Section 3.3 shall have been satisfied, (i) in the case
of (A) U.S. Swing Loans and (B) all Swing Loans demanded to be paid pursuant
to subsection (d) above each Revolving Credit Lender shall, before 11:00 a.m.
(New York City time) on the Business Day next succeeding the date of such
Revolving Credit Lender's receipt of such written statement, and (ii) in the
case of Foreign Swing Loans, before 11:00 a.m. (New York City time) on the
last day of the Interest Period therefor, make available to the Agent, at the
Payment Office for Dollars and in immediately available funds, for the
account of the Swing Loan Lender, the amount specified in such statement.
Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender
shall be deemed to have made a Revolving Credit Loan to the applicable
Operating Company, in the currency and in the amount of such payment. The
Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
To the extent that any Revolving Credit Lender fails to make such payment
available to the Agent for
113
the account of the Swing Loan Lender, the applicable Operating Company shall
repay such Swing Loan on demand.
(f) During the continuance of a Default under Section 8.1(e), each
Revolving Credit Lender shall acquire, without recourse or warranty, an
undivided participation in each Swing Loan otherwise required to be repaid by
such Revolving Credit Lender pursuant to subsection (e) above, which
participation shall be in a principal amount equal to such Revolving Credit
Lender's Revolving Credit Ratable Portion of such Swing Loan, by paying to
the Swing Loan Lender on the date on which such Revolving Credit Lender would
otherwise have been required to make a payment in respect of such Swing Loan
pursuant to subsection (e) above, in immediately available funds, an amount
equal to such Revolving Credit Lender's Revolving Credit Ratable Portion of
such Swing Loan and in the currency thereof. If such amount is not in fact
made available by such Revolving Credit Lender to the Swing Loan Lender on
such date, the Swing Loan Lender shall be entitled to recover such amount on
demand from such Revolving Credit Lender together with interest accrued from
such date at the Federal Funds Rate for three Business Days and thereafter at
the rate of interest then applicable to Base Rate Loans in the case of U.S.
Swing Loans and to Eurocurrency Loans in the case of Foreign Swing Loans.
(g) From and after the date on which any Revolving Credit Lender is
deemed to have made a Revolving Credit Loan pursuant to subsection (e) above
with respect to any Swing Loan or purchases an undivided participation
interest in a Swing Loan pursuant to subsection (f) above, the Swing Loan
Lender shall promptly distribute to such Revolving Credit Lender such
Revolving Credit Lender's pro rata share of all payments of principal of and
interest received by the Swing Loan Lender on account of such Swing Loan
other than those received from a Lender pursuant to Section 2.16.
2.21 Covenant to Pay. (a) For value received, each of Euramax,
Dutch Holdings, Dutch Company, Dutch Operating Co. and Coated Products, B.V.
(each a "Dutch Loan Party") hereby agrees and covenants with the Agent that
it shall pay to the Agent on demand amounts equal to all amounts which such
Dutch Loan Party is now or may at any time and from time to time hereafter be
obligated to pay to the Secured Parties or any one or more of them under any
of the Loan Documents to which such Dutch Loan Party is now or may at any
time become a party, if and when such amounts
114
become due and payable (such agreement and covenant is hereafter referred to
as a "Covenant Obligation").
(b) If, after foreclosure of all Collateral in which a Lien is
granted by any Dutch Loan Party, the proceeds are not sufficient to satisfy
and discharge such Dutch Loan Party's Covenant Obligation, the remainder of
such Covenant Obligation shall then cease to exist, but without prejudice to
any other Obligations and Guarantied Obligations which such Dutch Loan Party
may have and without prejudice to any other remedies which the Secured
Parties may have under any of the Loan Documents.
(c) Each of the Dutch Loan Parties and the Agent agree and
acknowledge that (i) each Dutch Loan Party's Covenant Obligation consists of
obligations and liabilities of such Dutch Loan Party to Paribas, as Agent,
separate and independent from and without prejudice to the other Obligations
and Guarantied Obligations which such Dutch Loan Party has or may have at any
time to the Lenders (including Paribas), the Issuer and the Agent under this
Agreement or any of the other Loan Documents or otherwise, and (ii) each such
Dutch Loan Party's Covenant Obligation represents the Agent's own claim
("vordering op naam") to receive payment of such Dutch Loan Party's Covenant
Obligation, separate and independent from any claims of the Secured Parties
on such Dutch Loan Party, provided that the total liability of each Dutch
Loan Party under its Covenant Obligation shall be decreased from time to time
to the extent that such Dutch Loan Party, or any other applicable Loan Party,
shall have permanently paid any amounts due under this Agreement or any of
the other Loan Documents with respect to its other Obligations and Guarantied
Obligations.
(d) Without limitation of the foregoing provisions of this Section
2.21, nothing contained in this Section shall in any way negate or affect any
Obligations or Guarantied Obligations other than the Covenant Obligation
which any of the Dutch Loan Parties has or at any time may have under the
Loan Documents or otherwise to the Lenders, the Issuer and the Agent.
115
ARTICLE III
CONDITIONS OF EFFECTIVENESS
OF THIS AGREEMENT AND OF LENDING
3.1. Conditions Precedent to Effectiveness of this Agreement, the
Making of the Initial Loans and the Issuance of Letters of Credit. The
effectiveness of this Agreement and the obligation of each Lender to make its
initial Loan or Loans hereunder and of the Issuer to issue any Letter of
Credit hereunder is subject to satisfaction of the conditions precedent that
the Agent shall have received each of the following, each dated the Effective
Date unless otherwise indicated, in form and substance satisfactory to the
Agent and (except for the Notes, the Existing Lender Assignment Agreements,
the certificates representing Pledged Shares referred to below and the stock
powers relating thereto, and instruments constituting part of the Collateral)
in sufficient copies for each Lender and the Issuer, together with, unless
waived by the Agent, a certified English translation of each below-referenced
document submitted in a language other than English (the date of satisfaction
of the conditions precedent set forth in this Section 3.1 and in Section 3.2
being the "Effective Date"):
(a) Counterparts of (i) the Existing Lender Assignment Agreements,
duly executed by the Assignor Lenders and Assignee Lenders party thereto,
together with evidence satisfactory to the Agent that the Effective Date
Assignments pursuant thereto shall have been effected, (ii) counterparts of
this Agreement, duly executed by each Loan Party, each Lender and the Agent,
together with evidence that (A) the Existing Agent, the Existing Issuer and
the Existing Lenders shall have received payment in full of all Obligations
owing pursuant to (and as defined in) the Existing Credit Agreement and the
Loan Documents referred to therein other than payment of the outstanding
principal amount of the Existing Term Loans and Existing Revolving Loans, and
(B) all outstanding Existing Swing Loans shall have been paid in full, and
(iii) the Notes, executed by the applicable Borrowers to the order of the
applicable Lenders, respectively.
(b)(x) A certificate of the Secretary or an Assistant Secretary of
each Loan Party (or, in the case of any Loan Party organized under the laws
of England and Wales, any other Responsible Officer thereof or, in the case
of any Loan Party organized under the laws of the Netherlands, a managing
director thereof), each certifying (i) the resolutions of its Board of
Directors approving each Loan Document to which it or its Subsidiaries is a
party or acknowledges, each Fabral Purchase Document to which it or any of
its Subsidiaries is a party or acknowledges (ii) all
116
documents evidencing other necessary corporate action, shareholder action
(including by any of ACP Products LLC, a Delaware limited liability company
("ACP LLC") a portion of the Stock of which is owned by CVC U.S., and ACP
Holding Company, a Delaware corporation (the "Holding Company Investor") and
a direct, wholly owned Subsidiary of ACP LLC and the owner of all of the
Stock of Advanced Cast Products, Inc., a Delaware corporation ("ACPI", and,
together with ACP LLC and the Holding Company Investor, being collectively
the "Related Entities" and individually a "Related Entity") and a direct,
wholly owned Subsidiary of the Holding Company Investor), in connection with
any Related Documents, excluding any Existing Related Document), and required
governmental and third party approvals, licenses and consents with respect to
each Loan Document and each Fabral Purchase Document to which it or its
Subsidiaries (except any Subsidiary that is a Loan Party) is a party and the
Transactions, (iii) a copy of its and each of its Subsidiaries' (other than
Subsidiaries that are Loan Parties) (A) certificates of incorporation or
other organizational documents and (B) by-laws, if any, in each case as of
the Effective Date, (iv) the names and true signatures of each of its
officers who has been authorized to execute and deliver any Loan Document or
other document required hereunder to be executed and delivered by or on
behalf of such Person, and (v) a true and complete copy of each Related
Document, excluding Existing Related Documents, to which such Loan Party or
any of its Subsidiaries (other than Subsidiaries that are Loan Parties) is a
party and each document delivered thereunder (including by each other party
thereto) in connection with the consummation of the transactions contemplated
thereby, (y) and, in the case of French Holdings, (A) an original certificate
of incorporation (extrait K-bis) and an original certificate of
non-insolvency (certificat de non-faillite) as of a recent date, (B) a copy
of its by-laws as of the Effective Date, as certified by French Holdings'
chairman of the board, (C) an original copy of the letter agreement between
French Holdings and Dutch Holdings, pursuant to which the French Intercompany
Note shall have been amended so that all interest accrued thereunder shall
have become due and payable on the date of completion of the French Note
Conversion, (D) original copies of the minutes of the board and shareholders
meetings, board's report to the shareholders, subscription form entered into
by Dutch Holdings and special report and certificate of French Holdings'
statutory auditors relating to the French Note Conversion, and (E) the
original power of attorney to be granted, as the case may be, by the chairman
of the board of French Holdings to the officer who shall
117
execute and deliver any Loan Document or other document required hereunder to
be executed and delivered by French Holdings.
(c) A copy of the articles or certificate of incorporation (or
other organizational documents) of each Loan Party and of each of its
Subsidiaries which is not a Loan Party, certified as of a recent date by the
Secretary of State of the state of incorporation of such Loan Party or
Subsidiary or, in the case of any Foreign Loan Party other than U.K.
Operating Co. and its Subsidiaries, by the applicable Governmental Authority,
together with, in the case of any Domestic Loan Party, certificates of such
officials attesting to the good standing of each such Loan Party and each of
its Subsidiaries.
(d) (i) A favorable opinion of Xxxxxxxx & Xxxxx, counsel to the
Loan Parties and Related Entities, in substantially the form of Exhibit P and
as to such other matters as any Lender through the Agent may reasonably
request, (ii) opinions satisfactory to the Agent of local counsel retained by
the Domestic Loan Parties with respect to the validity and enforceability of
each Domestic Mortgage and Domestic Leasehold Mortgage referred to in
subsection (j) below and the other documents contemplated by subsection (j)
below, and as to such other matters as may be reasonably required by the
Agent, (iii) favorable opinions of each of (A) Dibb Xxxxxx Xxxxx, special
English and Wales counsel to the Loan Parties, (B) Gide Loyrette Nouel,
special French counsel to the Loan Parties and (C) Xxxxx Dutilh, special
Netherlands counsel to the Loan Parties, each in form and substance
satisfactory to the Agent and as to such matters as any Lender through the
Agent may reasonably request, and (iv) reliance letters, in form and
substance satisfactory to the Agent, authorizing the Lenders, the Issuer and
the Agent to rely on the opinions of counsel delivered pursuant to the Fabral
Purchase Documents.
(e) The Fabral Holdings Pledge Agreement, duly executed by Fabral
Holdings, and a Pledge Amendment to and as defined in the U.S. Operating Co.
Pledge Agreement, duly executed by U.S. Operating Co., covering the Stock of
Fabral Holdings, together with in each case:
(i) certificates representing the Pledged Shares covered by the
Fabral Holdings Pledge Agreement and covered by such Pledge Amendment,
together with undated stock powers for such certificates executed in blank;
118
(ii) evidence that all action necessary or, in the opinion of the
Agent, desirable to perfect and protect the Lien created by the Fabral
Holdings Pledge Agreement have been taken.
(f) A Domestic Security Agreement, duly executed by Fabral
Holdings, and a Domestic Security Agreement, duly executed by Fabral, Inc.,
together with:
(i) Executed copies of instruments to be filed with the United
States Patent and Trademark Office and the United States Patent Office to
perfect the Lien in Intellectual Property Collateral covered by the
Domestic Security Agreements referred to above; and
(ii) evidence of the completion of all recordings and filings of
such Domestic Security Agreements and other documents and certificates as
may be necessary or, in the opinion of the Agent, desirable to perfect and
protect the Lien created by each such Agreement.
(g) Executed copies of proper Financing Statements (Form UCC-1)
under the Uniform Commercial Code of all jurisdictions as may be necessary
or, in the opinion of the Agent, desirable to perfect the Lien created by the
Domestic Security Agreements referred to above and the Fabral Holdings Pledge
Agreement; certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
which name any Loan Party or any of its Subsidiaries (under its present name
or any previous name) as debtor and which are filed in the jurisdictions
referred to above, together with copies of such other financing statements
(none of which shall cover the Collateral purported to be covered by the
Collateral Documents except as otherwise permitted by the Loan Documents);
and evidence of the completion of all recordings and filings of the Domestic
Security Agreements referred to above and the Fabral Holdings Pledge
Agreement as may be necessary or, in the opinion of the Agent, desirable to
perfect and protect the Lien created thereby.
(h) The Domestic Amendatory Agreement, duly executed by each party
to this Agreement.
(i) (i) The Additional Euramax Deed of Pledge, duly executed by
Euramax and the Agent and acknowledged by Dutch Holdings, (ii) the Additional
Dutch Holdings Stock and Debt Pledge Agreement, duly executed by Dutch
Holdings and
119
the Agent and acknowledged by Dutch Company, (iii) the Additional Dutch
Company Pledge Agreement, duly executed by Dutch Company and the Agent and
acknowledged by Dutch Operating Co., (iv) the Additional Dutch Operating Co.
Pledge Agreement, duly executed by Dutch Operating Co. and the Agent and
acknowledged by Coated Products B.V., (v) the Additional Dutch Mortgage, duly
executed by Coated Products B.V. and the Agent, (vi) the Additional Dutch
Operating Co. Security Agreement, duly executed by Dutch Operating Co. and
the Agent, (vii) the Additional Coated Products B.V. Security Agreement, duly
executed by Coated Products B.V. and the Agent, (viii) the U.K. Consent
Agreement, duly executed by Euramax, U.K. Holdings, U.K. Company, U.K.
Operating Co., Coated Products U.K., Ellbee Ltd. and the U.K. Trustee, (ix)
the Euramax Nantissement, duly executed by Euramax and the Agent, and (x) the
Dutch Holdings Nantissement, duly executed by Dutch Holdings and the Agent,
together with, in the case of clauses (i) through (x) above:
(A) evidence of the completion of all recordings, filings, notices,
authorizations and approvals as may be necessary or, in the opinion of the
Agent, desirable to continue, perfect or protect the Lien created by each
such Loan Document;
(B) (w) notarized powers of attorney (private deeds) granted by each
signatory to the Additional Dutch Company Pledge Agreement, the Additional
Dutch Holdings Stock and Debt Pledge Agreement, the Additional Dutch
Operating Co. Pledge Amendment and the Additional Euramax Deed of Pledge to
associates of a civil law notary of Stibbe Simont Xxxxxxx & Duhot in
Amsterdam, the Netherlands (the "Notary") to enable the Notary to execute
the notarial deeds of pledge in Amsterdam, the Netherlands, for the Pledged
Shares consisting of Stock of Dutch Holdings, Dutch Company, Dutch
Operating Co. and Coated Products, B.V., together with (1) certificates of
incumbency of each such signatory, (2) evidence of the execution by the
Notary and associates thereof of such notarial deeds of pledge, and (3)
evidence of the entry by Dutch Holdings, Dutch Company, Dutch Operating Co.
and Coated Products, B.V. in their respective shareholders' ledgers of the
pledge of their Stock; (x)(1) a declaration of the Land Registry's Offices
in Roermond, the Netherlands, that the Real Estate covered by the
Additional Dutch Mortgage is not subject to any prior Lien except the Lien
of the Dutch Mortgage executed on the Closing Date, (2) evidence that the
Collateral
120
covered by the Additional Dutch Operating Co. Security Agreement
and the Additional Coated Products B.V. Security Agreement are not subject
to any prior Lien except the Lien of the Dutch Security Agreements executed
on the Closing Date, (3) notarized powers of attorney (private deeds)
granted by each party to each Additional Dutch Collateral Document referred
to in clauses (x)(1) and (2) above to associates of the Notary to enable
the Notary to execute notarial deeds of pledge and of mortgage in
Amsterdam, the Netherlands, for the Collateral covered thereby, together
with certificates of incumbency for each such party to each such Additional
Dutch Collateral Document and (4) evidence of the execution by the Notary
and associates thereof of such notarial deeds; and (y) any further filings,
registrations, notices or other forms of perfection of Liens reasonably
requested by the Agent necessary to perfect the Lien created by or
purported to be created by any of the Additional Dutch Collateral Documents
or the Additional Euramax Deed of Pledge; and
(C)(x) the letter of release of the Dutch Holdings Existing
Nantissement in the form of Appendix 1 to the Euramax Nantissement,
executed by the Agent, the declaration of pledge in the form of Appendix 2
to the Euramax Nantissement executed by Euramax, the irrevocable payment
instruction letter in the form of Appendix 4, Part 1, to the Euramax
Nantissement, executed by Euramax, with respect to dividend payments in
connection with the Pledged Shares referred to in Article 5.2 of the
Euramax Nantissement, the letter of acknowledgment in the form of Appendix
4, Part 2, to the Euramax Nantissement, executed by French Holdings, the
confirmation of pledge in the form of Appendix 3 to the Euramax
Nantissement, executed by French Holdings; and (y)(1) the declaration of
pledge in the form of Appendix 1 to the Dutch Holdings Nantissement,
executed by Dutch Holdings, (2) the irrevocable payment instruction letter
in the form of Appendix 3, Part 1, to the Dutch Holdings Nantissement,
executed by Dutch Holdings, with respect to dividend payments in connection
with the Pledged Shares referred to in Article 5.2 of the Dutch Holdings
Nantissement, (3) the letter of acknowledgment in the form of Appendix 3,
Part 2, to the Dutch Holdings Nantissement, executed by French Holdings,
(4) the confirmation of pledge in the form of Appendix 2 to the Dutch
Holdings Nantissement executed by French Holdings, (5) a letter of release
of
121
the Dutch Holdings Existing Nantissement in form and substance
satisfactory to the Agent, executed by the Agent and Dutch Holdings and (6)
evidence that the French Intercompany Note has been cancelled.
(j) duly executed and acknowledged amendments to or amendments and
restatements of, as applicable, all Domestic Mortgages delivered on the
Closing Date to the extent necessary, in the sole judgment of the Agent, as a
result of the transactions contemplated by this Agreement, together with
endorsements to the Title Insurance Policies issued on the Closing Date
pursuant to (and as defined in) the Existing Credit Agreement, duly executed
and acknowledged, which endorsements bring the effective date of such
policies forward to the Effective Date, together with opinions satisfactory
to the Agent of local counsel retained by the Domestic Loan Parties with
respect to the validity and enforceability of the Domestic Mortgages
delivered on the Closing Date as the same have been amended or amended and
restated, as applicable, and as to such other matters as may be reasonably
required by the Agent or any Lender; a duly executed and acknowledged
Domestic Mortgage for each parcel of Real Estate owned by Fabral, Inc.
located in the United States of America (such Real Estate being "Specified
Fabral Real Estate"), together with:
(i) title insurance policies (the "Title Insurance Policies")
issued by a title company acceptable to the Agent, in such form and amounts
as are acceptable to the Agent, insuring that each such Domestic Mortgage
is a valid first priority Lien on the Specified Fabral Real Estate subject
thereto, subject only to such exceptions to title as shall be acceptable to
the Agent in its sole discretion and containing such endorsements and
affirmative insurance as the Agent may require and as are obtainable in the
applicable jurisdiction, and true copies of each document, instrument or
certificate required by the terms of each such policy, Domestic Mortgage
and Domestic Leasehold Mortgage to be, or have been, filed, recorded,
executed or delivered in connection therewith;
(ii) duly executed UCC-1 Financing Statements under the
applicable Uniform Commercial Code to be filed in connection with each such
Domestic Mortgage, in form and substance satisfactory to the Agent, to
perfect the Lien created by each such Domestic Mortgage;
122
(iii) current ALTA surveys and surveyor's certification as to
all Specified Fabral Real Estate Leases, each in form and substance
satisfactory to the Agent; and
(iv) proof of payment of all title insurance premiums,
documentary, stamp or intangible taxes, recording fees and mortgage taxes
payable in connection with the recording of any of the Loan Documents or
the issuance of the Title Insurance Policies;
(k) Evidence that the insurance required by the terms of the
Collateral Documents and by Section 6.4 is in full force and effect.
(l) An appraisal, from an appraisal firm selected by the Agent, of
such Real Estate of Fabral, Inc. as the Agent shall select, in form and
substance satisfactory to the Agent or other documentation acceptable to Agent
with respect to substantiating the fair market value of the Real Estate of
Fabral, Inc.
(m) A written report of a Phase I Environmental Assessment by Strata
Environmental relating to the properties and operations of the "Fabral" division
of Fabral, Inc., in form and substance reasonably satisfactory to the Agent.
(n) A letter from the Process Agent, in substantially the form of
Exhibit O hereto, agreeing to act as Process Agent for each Loan Party and to
forward forthwith all process received by it to such Loan Party.
(o) (i) A certificate of the chief financial officer of Euramax and
each Borrower stating that such Loan Party and each of its Subsidiaries is
Solvent after giving effect to the Existing Term Loans, the Existing Revolving
Credit Loans, the Existing Letters of Credit and the initial Loans hereunder and
the application of the proceeds thereof in accordance with Section 6.10, the
Transactions, the payment of all Costs and all estimated legal, accounting and
other fees related hereto and thereto and to all obligations, if any, under
Pension Plans or the equivalent for unfunded retirement benefits and unfunded
medical (including post-retirement) and death benefits; and (ii) an estimated
pro forma consolidated and consolidating balance sheet of Euramax and its
Subsidiaries as of the Effective Date, which balance sheet gives effect to the
Transactions
123
and to the payment or accrual of all Costs, certified by the Vice President
of Finance of Euramax.
(p) Balance sheet, income statement and statement of cash flow of
Fabral, Inc. which (after giving effect to the transactions contemplated by the
Fabral Restructuring Agreement) shall have been audited and reported upon by
independent certified public accountants, which financial statements shall
present fairly, in all material respects, the financial position of Fabral
Holdings and Fabral, Inc. as at December 31, 1995 and 1996, in conformity with
GAAP.
(q) Combining schedule presenting balance sheets and income
statements of and for the year ending December 31, 1996 reconciled to the
audited financial statements of Euramax referred to in subsection (p) above.
(r) A Borrowing Base Certificate from each Borrower as of the last
day of the fiscal month of such Borrower ended immediately preceding the
Effective Date.
(s) A certificate signed by a Responsible Officer of each Loan Party
(or by a managing director of such Loan Party in the case of any Loan Party
organized under the laws of the Netherlands) stating that on the Effective Date
the following statements are true and correct with respect to such Loan Party
and its Subsidiaries, and a certificate signed by a duly authorized officer of
ACP LLC (together with an incumbency certificate with respect to said officer)
stating that the statements in clause (v) and (viii) below are true and correct
with respect to ACP LLC and the other Related Entities:
(i) (A) The statements set forth in Section 3.3 are true after
giving effect to the Existing Loans and the Loans being made on the
Effective Date and (B) no Default or Event of Default under, and as defined
in, the Existing Credit Agreement has occurred and is continuing and all
representations and warranties contained therein and in the Loan Documents
referred to therein are true and correct on and as of the Effective Date
immediately prior to the consummation of the Transactions.
(ii) All costs and accrued and unpaid fees and expenses
(including, without limitation, reasonable fees and expenses of counsel)
required to be paid to the Lenders and the Agent on or before the Effective
Date, including, without limitation, those referred to
124
in Sections 2.4 and 10.4, to the extent then due and payable, in each
case have been paid; and set forth on Schedule 3.1(s)-1 is a complete and
itemized list of all Costs, the aggregate amount of which shall not
exceed $3,500,000.
(iii) All necessary approvals from Governmental Authorities
(including, without limitation, any governmental approvals specified in the
Fabral Purchase Documents) and all necessary approvals from third parties
(including, without limitation, third party approvals specified in the
Fabral Purchase Documents) required to be obtained in connection with the
Transactions have been obtained and remain in effect, and all applicable
waiting periods have expired without any action being taken by any
competent authority which restrains, prevents, impedes, delays or imposes
materially adverse conditions upon any of the Transactions or the exercise
of control by Euramax over any of its Subsidiaries.
(iv) There exists no judgment, order, injunction or other
restraint prohibiting or imposing materially adverse conditions upon any of
the Transactions, the Loans or the exercise of control by Euramax or any of
its Subsidiaries over any of its Subsidiaries.
(v) There exists no claim, action, suit, investigation or
proceeding (including, without limitation, shareholder or derivative
litigation) pending or, to the knowledge of any Loan Party or Related
Entity, threatened in any court or before any arbitrator or Governmental
Authority which relates to the Loan Documents or Related Documents or the
financing hereunder or any other Transaction or which, if adversely
determined, has a reasonable likelihood of having a material adverse effect
on any Transaction or a Material Adverse Effect.
(vi) In the case of U.S. Operating Co., there are no
shareholder rights issued by Fabral Holdings or Fabral, Inc. pursuant to
any rights plan granted or outstanding.
(vii) In the case of U.S. Operating Co., all outstanding
Indebtedness of Fabral Holdings and Fabral, Inc. and all outstanding credit
lines from any Person and commitments of any Person under any agreement
with
125
Fabral Holdings or Fabral, Inc. to extend credit to Fabral Holdings or
Fabral, Inc., other than Permitted Existing Indebtedness approved by the
Lenders, are listed on Schedule 3.1(s)-2 (such Indebtedness, credit lines
and agreements on said Schedule being "Existing Debt") and all Existing
Debt has been paid in full and terminated and all Liens securing any
Existing Debt have been released and terminated in each case pursuant to
documentation satisfactory to the Agent in its sole judgment exercised
reasonably.
(viii) There shall not occur as a result of the consummation
of any of the Transactions a default (or any event which with the giving of
notice or lapse of time or both would be a default) under Contractual
Obligations of or relating to any Loan Party or any of its Subsidiaries or
any Related Entity not being repaid in full and terminated on or prior to
the Effective Date except those which could not individually or in the
aggregate have a Material Adverse Effect.
(xi) In the case of Euramax, each Related Document is in full
force and effect and the representations and warranties contained therein
are true and correct in all material respects.
(x) In the case of U.S. Operating Co., each Fabral Purchase
Document is in full force and effect, the representations and warranties
contained therein are true and correct in all material respects and all
conditions set forth therein have been fulfilled or, with the consent of
the Lenders, waived by the parties thereto, the Fabral Purchase and the
other transactions contemplated by the Fabral Purchase Documents have been
effected in accordance with the Fabral Purchase Documents and all
applicable Requirements of Law, and the aggregate purchase price of the
Fabral Purchase is $72,000,000 plus the amounts set forth in Section 2.02
of the Fabral Purchase Agreement, and subject to adjustment in accordance
with the Fabral Purchase Agreement.
(t) Such additional documents, information (including financial
information) and materials as any Lender, through the Agent, may reasonably
request.
3.2. Additional Conditions Precedent to Effectiveness of this
--------------------------------------------------------
Agreement, the Making of the Initial Loans and the Issuance of Letters of
-------------------------------------------------------------------------
Credit. The
------
126
effectiveness of this Agreement and the obligation of each Lender
to make its initial Loan hereunder and of the Issuer to issue any Letter of
Credit hereunder on the Effective Date is subject to the further conditions
precedent that:
(a) Each of the Related Documents that are not Existing Related
Documents shall be in form and substance satisfactory to the Lenders in their
sole judgment exercised reasonably.
(b) Neither the Agent nor any Lender in its sole judgment shall have
determined (i) that since December 31, 1995 in the case of Euramax and its
Subsidiaries, and since December 31, 1996, in the case of Fabral Holdings and
Fabral, Inc., there has been any Material Adverse Change or any occurrence or
development which has had a Material Adverse Effect, or (ii) that since May 15,
1997 there has occurred any adverse change which the Agent or such Lender deems
material in the market for senior debt financings for leveraged acquisitions or
in the financial markets generally, or (iii) that there is any claim, action,
suit, investigation, litigation or proceeding (including, without limitation,
shareholder or derivative litigation) pending or threatened in any court or
before any arbitrator or Governmental Authority which, if adversely determined,
has a reasonable likelihood of having a material adverse effect on any of the
Transactions or a Material Adverse Effect, or (iv) that any judgment, order,
injunction or other restraint imposes materially adverse conditions upon any of
the Transactions.
(c) Each Lender shall be satisfied, in its sole judgment, exercised
reasonably, with the corporate, capital, legal and management structure of
Fabral Holdings and Fabral, Inc., all shareholder agreements and arrangements,
all tax aspects of the Transactions, the nature and status of all Contractual
Obligations, securities, labor, tax, ERISA, employee benefit, environmental,
health and safety matters, in each case involving or affecting Fabral Holdings
or Fabral, Inc..
(d) Nothing contained in any public disclosure made by, or in any
information disclosed by, CVC U.S., CVC Europe, the Holding Company Investor,
the Sellers (as defined in the Fabral Purchase Agreement), any Loan Party, or
any of their respective Subsidiaries or Affiliates, to any Lender or to the
Agent shall lead any Lender or the Agent, in such Lender's or the Agent's sole
judgment, exercised reasonably, to determine that, and neither any
127
Lender nor the Agent shall have become aware of any fact not disclosed to the
Lenders and the Agent which shall lead any Lender or the Agent to determine
that, any Loan Party's or any of its Subsidiary's or any Related Entity's
condition (financial or otherwise), operations, performance, properties or
prospects are different in any material and adverse respect from that derived
by such Lender or the Agent from public filings of and information disclosed
by CVC U.S., CVC Europe, the Holding Company Investor, any such Seller, any
Loan Party, or any of their respective Subsidiaries or Affiliates.
3.3. Conditions Precedent to the Making of Each Loan and Each
--------------------------------------------------------
Issuance of any Letter of Credit. The obligation of each Lender to make any
--------------------------------
Loan (including any Loan being made by such Lender on the Effective Date) and of
the Issuer to issue any Letter of Credit shall be subject to the further
conditions precedent that:
(a) The following statements shall be true on the date of such Loan
or such issuance, before and after giving effect thereto and to the application
of the proceeds therefrom and to such issuance (and the acceptance by any
Borrower of the proceeds of such Loan or the issuance of such Letter of Credit
shall constitute a representation and warranty by each Loan Party that on the
date of such Loan or such issuance such statements are true):
(i) The representations and warranties of such Loan Party
contained in Article IV and of each Loan Party in the other Loan Documents
are correct on and as of such date as though made on and as of such date;
and
(ii) No Default or Event of Default will result from the Loans
being made on, or Letter of Credit being issued on, such date.
(b) The making of the Loans or the issuance of such Letter of Credit
on such date does not violate any Requirement of Law and is not enjoined,
temporarily, preliminarily or permanently.
(c) The Agent shall have received such additional documents,
information and materials as the Issuer or any Lender, through the Agent, may
reasonably request.
ARTICLE IV
128
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuer and the Agent to enter into this
Agreement, each Loan Party represents and warrants as to itself and its
Subsidiaries that, on and after the Effective Date (after giving effect to the
Transactions):
4.1. Corporate Existence; Compliance with Law. Each Loan Party and
----------------------------------------
each of its Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization; (ii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where such qualification is
necessary, except for failures which in the aggregate have no Material Adverse
Effect; (iii) has all requisite corporate power and authority and the legal
right to own, pledge, mortgage and operate its properties, to lease the property
it operates under lease and to conduct its business as now or currently proposed
to be conducted; (iv) is in compliance with its certificate of incorporation or
other organizational documents and by-laws; (v) is in compliance with all other
applicable Requirements of Law except for such non-compliances as in the
aggregate have no Material Adverse Effect; and (vi) has all necessary licenses,
permits, consents or approvals from or by, has made all necessary filings with,
and has given all necessary notices to, each Governmental Authority having
jurisdiction, to the extent required for such ownership, operation and conduct,
except for licenses, permits, consents or approvals which can be obtained by the
taking of ministerial action to secure the grant or transfer thereof or failures
which in the aggregate have no Material Adverse Effect.
4.2. Corporate Power; Authorization; Enforceable Obligations. (a)
-------------------------------------------------------
The execution, delivery and performance by each Loan Party and each of its
Subsidiaries of the Loan Documents and each of the Related Documents to which it
is a party and the consummation of the Transactions:
(i) are within its corporate powers;
(ii) have been or, at the time of delivery thereof pursuant to
Article III, will have been duly authorized by all necessary corporate
action, including, without limitation, the consent of shareholders where
required;
129
(iii) do not and will not (A) contravene its or any of its
Subsidiaries' respective certificate of incorporation or by-laws or other
comparable governing documents, (B) violate any other applicable
Requirement of Law (including, without limitation, Regulations G, T, U and
X of the Board of Governors of the Federal Reserve System), or any order or
decree of any Governmental Authority or arbitrator, (C) conflict with or
result in the breach of, or constitute a default under, or result in or
permit the termination or acceleration of, any of its Contractual
Obligations or any Contractual Obligations of its Subsidiaries except those
which, individually or in the aggregate, the breach, default or termination
or acceleration of which could not have a Material Adverse Effect, or
(D) result in the creation or imposition of any Lien upon any of its
property or the property of any of its Subsidiaries, other than those in
favor of the Agent pursuant to the Collateral Documents; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those which have been or will be, prior to
the Closing Date unless otherwise specifically provided in Section 3.1,
obtained or made and copies of which have been or will be delivered to the
Agent pursuant to Section 3.1, and each of which will be in full force and
effect.
(b) This Agreement, each of the other Loan Documents and each of the
Related Documents has been, or will have been upon delivery thereof pursuant to
Section 3.1, duly executed and delivered by each Loan Party and each of its
Subsidiaries party thereto. This Agreement and the other Loan Documents are,
and each of the Related Documents is, or will be, when delivered hereunder, the
legal, valid and binding obligation of each Loan Party and each of its
Subsidiaries party thereto, enforceable against it in accordance with its terms.
4.3. Taxes. All federal, state, local and foreign tax returns,
-----
reports and statements (collectively, the "Tax Returns") required to be filed by
any Loan Party or any of its Tax Affiliates have been filed with the appropriate
governmental agencies in all jurisdictions in which such Tax Returns are
required to be filed, all such Tax Returns are true and correct in all material
respects, and all taxes, charges and other impositions due and payable
130
have been timely paid prior to the date on which any fine, penalty, interest,
late charge or loss may be added thereto for non-payment thereof, except
where contested in good faith and by appropriate proceedings if (i) adequate
reserves therefor have been established on the books of such Loan Party or
such Tax Affiliate in conformity with GAAP and (ii) all such non-payments in
the aggregate have no Material Adverse Effect. Except as set forth on
Schedule 4.3, proper and accurate amounts have been withheld by each Loan
Party and each of its respective Tax Affiliates from their respective
employees for all periods in full and complete compliance with the tax,
social security and unemployment withholding provisions of applicable
federal, state, local and foreign law and such withholdings have been timely
paid to the respective Governmental Authorities. No Loan Party nor any of
its Tax Affiliates has (i) executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having
the effect of extending, the period for assessment or collection of any
charges, except as set forth on Schedule 4.3; (ii) agreed or been requested
to make any adjustment under Section 481(a) of the Code by reason of a change
in accounting method or otherwise; or (iii) any obligation under any written
tax sharing agreement other than pursuant to the Tax Allocation Agreement,
except such extension, adjustment and/or obligation to which the Agent and
Majority Lenders have consented.
4.4. Full Disclosure. No written statement prepared or furnished by
---------------
or on behalf of any Loan Party or any of its Subsidiaries or Affiliates in
connection with any of the Loan Documents or the Related Documents or the
consummation of the transactions contemplated thereby, and no financial
statement delivered pursuant hereto or thereto, contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were presented. All facts known to each Loan
Party which are material to an understanding of the financial condition,
business, properties or prospects of such Loan Party or its Subsidiaries have
been disclosed to the Lenders.
4.5. Financial Matters. (a) The consolidated balance sheet of
-----------------
Fabral Holdings as of December 31, 1996, and the related consolidated statements
of income, retained earnings and cash flows of Fabral Holdings for the fiscal
year then ended, certified by Coopers & Xxxxxxx, LLP, and the consolidated and
consolidating balance sheet of Euramax
131
as at December 31, 1995, and the related consolidated and consolidating
statements of income, retained earnings and cash flows of Euramax for the
fiscal year then ended, certified by Coopers & Xxxxxxx, LLP, copies of which
have been furnished to each Lender, fairly present the consolidated and
consolidating financial condition of Fabral Holdings and its consolidated
Subsidiaries and Euramax and its consolidated Subsidiaries, respectively, as
at such dates and the consolidated and consolidating results of the
operations of Fabral Holdings and its consolidated Subsidiaries and Euramax
and its consolidated Subsidiaries, respectively, for the period ended on such
dates, all in conformity with GAAP.
(b) Since December 31, 1996 in the case of Fabral Holdings and its
Subsidiaries and December 31, 1995 in the case of Euramax and its Subsidiaries,
other than as contemplated by the Fabral Purchase Documents, there has been no
Material Adverse Change and there have been no events or developments that in
the aggregate have had a Material Adverse Effect.
(c) Neither Fabral Holdings nor any of its Subsidiaries had, other
than as contemplated by the Fabral Purchase Documents, at December 31, 1996, and
neither Euramax nor any of its Subsidiaries had at December 31, 1995, any
material obligation, contingent liability or liability for taxes, long-term
leases or unusual forward or long-term commitment which is not reflected in the
respective balance sheet at such dates referred to in subsection (a) above or in
the notes thereto.
(d) The unaudited pro forma consolidated and consolidating balance
sheet of Euramax and its consolidated Subsidiaries, a copy of which has been
delivered to each Lender, estimated as of the Effective Date, reflects as of
such date, on a pro forma basis, the consolidated financial condition of Euramax
and its Subsidiaries, and the Projections and assumptions expressed therein were
reasonably based on the information available to Euramax at the time so
furnished and on the Effective Date.
(e) Each Loan Party is, and on a consolidated basis each Loan Party
and its Subsidiaries are, Solvent.
4.6. Litigation. Except as set forth on Schedule 4.6, there are no
----------
pending or, to the knowledge of any Loan Party, threatened actions,
investigations or proceedings affecting such Loan Party or any of its
Subsidiaries before
132
any court, Governmental Authority or arbitrator, other than those that in the
aggregate, if adversely determined, would have no Material Adverse Effect.
None of the Transactions or the performance of any action by any Loan Party
required or contemplated by any of the Loan Documents or the Related
Documents is restrained or enjoined (either temporarily, preliminarily or
permanently), and no material adverse condition has been imposed by any
Governmental Authority or arbitrator upon any of the foregoing or the
exercise of control by Euramax over any other Loan Party or any of their
respective Subsidiaries.
4.7. Margin Regulations. No Loan Party is engaged in the business of
------------------
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Borrowing will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
4.8. Ownership; Subsidiaries. (a) Set forth on Part 1 of Schedule
-----------------------
4.8 hereto is a complete and accurate list of all Loan Parties as of the
Effective Date, their respective jurisdictions of incorporation or organization,
the authorized Stock of each Loan Party, the number of outstanding shares of
each class of Stock of each Loan Party and the beneficial owners thereof,
including any Qualifying Shares. All of the outstanding Stock of each Loan
Party has been validly issued, is fully paid and non-assessable and is owned
beneficially and of record by each Person specified in Part 1 of Schedule 4.8,
in each case free and clear of all Liens other than the Liens granted to the
Agent under the Pledge Agreements. No authorized but unissued shares, no
treasury shares and, to the best knowledge of each Loan Party, no other
outstanding shares of Stock of any Loan Party are subject to any option,
warrant, right of conversion or purchase or any similar right except, in the
case of Stock of Euramax, pursuant to the Shareholders Agreement and the
articles of association of Euramax. There are no agreements or understandings
with respect to the voting, sale or transfer of any shares of Stock of any Loan
Party, or, to the best knowledge of each Loan Party, any agreement restricting
the transfer or hypothecation of any such shares other than, in the case of
Stock of Euramax, the Shareholders Agreement, Registration Rights Agreement and
the articles of association of Euramax.
133
(b) Set forth on Part 2 of Schedule 4.8 hereto is a complete and
accurate list showing all Subsidiaries of each Loan Party (other than
Subsidiaries that are Loan Parties listed on Part 1 of Schedule 4.8) on the date
hereof and, as to each such Subsidiary, the jurisdiction of its incorporation or
organization, the number of shares of each class of Stock authorized, the number
of such shares outstanding on the Closing Date, the percentage of the
outstanding shares of each such class owned (directly or indirectly) by such
Loan Party, and the number of any Qualifying Shares. No Stock of any Subsidiary
of any Loan Party is subject to any outstanding option, warrant, right of
conversion or purchase or any similar right. All of the outstanding capital
Stock of each such Subsidiary has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party, free and clear of all Liens
other than the Liens granted to the Agent pursuant to the Pledge Agreements.
None of the Loan Parties or their respective Subsidiaries is a party to, or has
knowledge of, any agreement restricting the transfer or hypothecation of any
shares of Stock of any Subsidiary of any Loan Party, other than the Loan
Documents, the Shareholders Agreement and the Senior Subordinated Indenture. No
Loan Party owns or holds, directly or indirectly, any capital stock or equity
security of, or any equity interest in, any Person other than such Subsidiaries
or another Loan Party or as permitted by Section 7.6.
4.9. ERISA. (a) Except as set forth on Schedule 4.9, there are no
-----
Plans that are Multiemployer Plans.
(b) Each Plan and any related trust intended to qualify under Code
Section 401 or 501 will be timely filed with the IRS for its determination that
each such Plan and related trust is qualified.
(c) None of the Loan Parties or any of their respective Subsidiaries
or ERISA Affiliates, with respect to any Domestic Pension Plan or Foreign
Pension Plan, has failed to make any contribution or pay any amount due as
required by Section 412 of the Code or Section 302 of ERISA or other applicable
law, and all required contributions and benefits have been paid in accordance
with the provisions of each such plan.
(d) There are no pending or, to the knowledge of any Loan Party,
threatened claims, actions or proceedings (other than claims for benefits in the
normal course), relating to any Plan or Foreign Pension Plan other than
134
those that in the aggregate, if adversely determined, would have no Material
Adverse Effect.
(e) No Domestic Pension Plan, individually or in the aggregate with
all Domestic Pension Plans, has any unfunded accrued benefit liabilities, as
determined by using reasonable actuarial assumptions utilized by such plan's
actuary for funding purposes, exceeding $3,000,000. Within the last five years
no Loan Party or any of its Subsidiaries or ERISA Affiliates has caused a
Domestic Pension Plan with any such liabilities to be transferred outside of its
"controlled group" (within the meaning of Section 4001(a)(14) of ERISA).
(f) Except as disclosed on Schedule 4.9, no Plan or Foreign Pension
Plan provides for continuing health, disability, accident or death benefits or
coverage for any participant or his or her beneficiary after such participant's
termination of employment (except as may be required by Section 4980B of the
Code and at the sole expense of the participant or the beneficiary) which would
result in the aggregate under all Plans in a liability in an amount which would
have a Material Adverse Effect.
4.10. Liens; Indebtedness. There are no Liens of any nature
-------------------
whatsoever on any properties of any Loan Party or any of its Subsidiaries other
than those permitted by Section 7.1. The Liens granted to the Agent pursuant to
the Collateral Documents are fully perfected first priority Liens in and to the
Collateral covered thereby.
4.11. Restricted Payments. No Loan Party has, except as permitted by
-------------------
Section 7.4, (a) declared or made any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of its Stock, (b) made any payment or distribution on
account of any Indebtedness for or in respect of borrowed money except to the
extent permitted by this Agreement, including, without limitation, to secure any
waiver or consent in respect of any such Indebtedness, (c) purchased, redeemed,
or otherwise acquired for value or made any payment in respect of any of its
Stock or Stock Equivalents (d) purchased, redeemed, prepaid, defeased or
otherwise acquired for value any Indebtedness for or in respect of borrowed
money, (e) permitted any of its Subsidiaries to do so, or (f) in the case of
Fabral Holdings, effected any of the foregoing prior to the Effective Date to
the extent effected in violation of the Fabral Purchase Documents.
135
4.12. No Burdensome Restrictions; No Defaults; Contractual
----------------------------------------------------
Obligations. (a) None of the Loan Parties nor any of their Subsidiaries (i) is
-----------
a party to any Contractual Obligation the compliance with which would have a
Material Adverse Effect or the performance of which by any thereof, either
unconditionally or upon the happening of an event, will result in the creation
of a Lien (other than a Lien granted pursuant to a Loan Document) on the
property or assets of any thereof, or (ii) is subject to any charter or
corporate restriction which has a Material Adverse Effect.
(b) None of the Loan Parties nor any of their Subsidiaries is in
default under or with respect to any Contractual Obligation owed by it and, to
the knowledge of any Loan Party, no other party is in default under or with
respect to any Contractual Obligation owed to any Loan Party or to any of its
Subsidiaries, other than those defaults which in the aggregate have no Material
Adverse Effect.
(c) No Event of Default or Default has occurred and is continuing.
(d) There is no Requirement of Law the compliance with which by any
Loan Party or any of its Subsidiaries would have a Material Adverse Effect.
(e) No Subsidiary of any Loan Party is subject to any Contractual
Obligation restricting or limiting its ability (i) to transfer its assets to
such Loan Party, (ii) to declare or make any dividend payment or other
distribution on account of any shares of any class of its Stock or (iii) its
ability to purchase, redeem, or otherwise acquire for value or make any payment
in respect of any such shares or any shareholder rights.
(f) As of the date hereof, none of the Loan Parties or their
respective Subsidiaries owns or holds, or is obligated under or a party to, any
option, right of first refusal, or other contractual right, to effect an
Investment, or any Contractual Obligation to effect an Asset Sale.
4.13. No Investments. Except as permitted by Section 7.6, none of
--------------
the Loan Parties or their respective Subsidiaries is engaged in any joint
venture or partnership with any other Person or maintains any other Investment.
4.14. Government Regulation. (a) None of the Loan Parties or their
---------------------
respective Subsidiaries is an
136
"investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended, or subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, or any other foreign, federal or
state statute or regulation such that its ability to incur Indebtedness is
limited, or its ability to consummate the transactions contemplated hereby or
by any other Loan Document, or the exercise by the Agent or any Lender of
rights and remedies hereunder or thereunder, is impaired. The making of the
Loans by the Lenders, the application of the proceeds and repayment thereof
by the Loan Parties or any of them and the consummation of the transactions
contemplated by the Loan Documents will not violate any provision of any of
the foregoing or any rule, regulation or order issued by the Securities and
Exchange Commission thereunder.
(b) No Loan Party or any of its Subsidiaries or any of its or their
respective properties has any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under any
Requirement of Law of any Governmental Authority.
(c) There is no tax, levy, impost, deduction, charge or withholding
imposed by any Governmental Authority either (i) on or by virtue of the
execution or delivery of this Agreement, the Notes, any other Loan Document or
any other document to be furnished hereunder other than those imposed on Alumax
in connection with the transactions under the Purchase Agreement, or (ii) on any
payment to be made by any Loan Party or any of its Subsidiaries pursuant to this
Agreement, the Notes or any other Loan Document.
(d) To ensure the legality, validity, enforceability or admissibility
in evidence of this Agreement, the Notes or any other Loan Document in any
jurisdiction, it is not necessary that this Agreement, the Notes, any other Loan
Document or any other document be filed or recorded with any court or other
Governmental Authority in any jurisdiction or that any stamp or similar tax be
paid on or in respect of this Agreement, the Notes or any other Loan Document.
4.15. Insurance. All policies of insurance of any kind or nature
---------
owned by or issued to any Loan Party or any of its Subsidiaries, including,
without limitation,
137
policies of life, fire, theft, product liability, public liability, property
damage, other casualty, employee fidelity, workers' compensation and employee
health and welfare insurance, are in full force and effect and are of a
nature and provide such coverage as is sufficient and as is customarily
carried by companies of the size and character of such Person. None of the
Loan Parties or any of their Subsidiaries has been refused insurance for
which it applied or had any policy of insurance terminated (other than at its
request or as provided in the Purchase Agreement).
4.16. Labor Matters. (a) There are no strikes, work stoppages,
-------------
slowdowns or lockouts pending or threatened against or involving any Loan Party
or any of its Subsidiaries, other than those which in the aggregate have no
Material Adverse Effect.
(b) There are no unfair labor practice charges, arbitrations or
grievances pending against or involving, or to the knowledge of any Loan Party
threatened against, any Loan Party or its Subsidiaries, nor, to the knowledge of
any Loan Party, are there any arbitrations or grievances threatened involving
any Loan Party or its Subsidiaries, other than those which, in the aggregate, if
resolved adversely to such Loan Party or such Subsidiary, would have no Material
Adverse Effect.
(c) Except as set forth on Schedule 4.16, as of the Closing Date, no
Loan Party or any of its Subsidiaries is a party to, or has any obligations
under, any collective bargaining agreement.
(d) There is no organizing activity involving any Loan Party or any
of its Subsidiaries pending or, to any Loan Party's knowledge, threatened by any
labor union or group of employees, other than those which in the aggregate have
no Material Adverse Effect. There are no representation proceedings pending or,
to any Loan Party's knowledge, threatened with the National Labor Relations
Board or similar board or authority in any jurisdiction, and no labor
organization or group of employees of any Loan Party or any of its Subsidiaries
have made a pending demand for recognition, other than those which in the
aggregate have no Material Adverse Effect.
4.17. Force Majeure. Neither the business nor the properties of any
-------------
Loan Party or any of its Subsidiaries are currently suffering from the effects
of any fire, explosion, accident, strike, lockout or other labor dispute,
138
drought, storm, hail, earthquake, embargo, act of God or of the public enemy
or other casualty (whether or not covered by insurance), other than those
which in the aggregate have no Material Adverse Effect.
4.18. Use of Proceeds of Loans and Use of Letters of Credit. (a) The
-----------------------------------------------------
proceeds of the Loans are being used solely as follows:
(i) All proceeds of the Additional Term Loans and Transaction
Revolving Credit Loans made on the Effective Date are being used to pay in
full the purchase price of the Fabral Purchase and Costs, the amounts of
which purchase price and Costs shall not exceed the amounts set forth in
Section 3.1(s);
(ii) All proceeds of the Existing Loans were used as set forth in
the Existing Credit Agreement; and
(iii) All proceeds of General Purpose Revolving Credit Loans and
Swing Loans made to any Operating Company are being used for working
capital needs of such Borrower and its Subsidiaries and for general
corporate purposes of such Borrower and its Subsidiaries (other than to
finance any of the Transactions or to pay Costs).
(b) The Letters of Credit are being used for the purpose of
supporting, in the case of U.S. Operating Co., U.S. Operating Co.'s obligations
in respect of workers' compensation and benefits referred to in Section 7.1(d)
and the obligation to make the Laminated Products Deferred Payment (any Letter
of Credit issued to support the obligation to make such Deferred Payment being a
"Deferred Payment L/C"), and, in the case of U.K. Operating Co. and Dutch
Operating Co., matters referred to in Section 7.1(d) and (e).
4.19. Environmental Protection. (a) Except as disclosed on
Schedule ------------------------4.19 and except for any
matter referred to in any of clauses (i) through (vii) below or any matter
referred to in subsection (ix) below that would not reasonably be expected to
individually result in Environmental Costs and Liabilities in excess of
$500,000 or, when the Environmental Liabilities and Costs to which such Loan
Party or such Subsidiary are reasonably likely to be subjected as a result
thereof are aggregated with the Environmental Liabilities and Costs to which
all Loan Parties and their Subsidiaries are reasonably likely to be
139
subjected as a result of all matters referred to in clauses (i) through (vii)
and (ix) below, would not reasonably be expected to exceed $4,000,000 in the
aggregate and no Environmental Lien arises therefrom:
(i) all real property leased, owned, or operated by any Loan
Party or any of its Subsidiaries is free from contamination by any
Hazardous Material;
(ii) the operations of each Loan Party and each of its
Subsidiaries are, and for the past three years have been, in compliance in
all respects with all applicable Environmental Laws;
(iii) no Loan Party or any of its Subsidiaries has liabilities
with respect to Hazardous Materials, and no facts or circumstances exist
which could, in any such case, reasonably be expected to give rise to
liabilities with respect to Hazardous Materials;
(iv) each Loan Party and its Subsidiaries have obtained and
currently maintain all Environmental Permits necessary for their operations
and are in material compliance with such Environmental Permits, and there
are no Legal Proceedings pending nor, to the best knowledge of each Loan
Party and its Subsidiaries, threatened to revoke, or alleging the violation
of, such Environmental Permits, and, to the best knowledge of each Loan
Party, there are no facts, circumstances or conditions that would prevent
timely renewal of such Environmental Permits or that are reasonably likely
to require Capital Expenditures to obtain renewal;
(v) no Loan Party's or any of its Subsidiaries' current
facilities and operations, nor, to the best knowledge of each Loan Party
and its Subsidiaries, any predecessor of such Loan Party or any of its
Subsidiaries, nor any of their past facilities and operations, nor any
owner of premises leased or operated by such Loan Party or any of its
Subsidiaries, are subject to any outstanding written Order or Contract,
including Environmental Liens, with any Governmental Authority or other
Person or to any federal, state, local, foreign or territorial
investigation respecting (A) Environmental Laws, (B) Remedial Action,
(C) any Environmental Claim, or (D) the Release or threatened Release of
any Hazardous Material;
140
(vi) no Loan Party or any of its Subsidiaries are subject to any
pending Legal Proceeding alleging the violation of or any liability under
any Environmental Law nor, to the best knowledge of each Loan Party and its
Subsidiaries, are any such proceedings threatened;
(vii) no Loan Party or any of its Subsidiaries nor, to such Loan
Party's or any of its Subsidiaries' best knowledge, any predecessor of such
Loan Party or any of its Subsidiaries, nor, to the best knowledge of any
Loan Party, any owner of premises leased or operated by such Loan Party or
any of its Subsidiaries, have filed any notice under federal, state or
local, territorial or foreign law reporting a Release of Hazardous
Material;
(viii) no Loan Party or any of its Subsidiaries nor any owner of
premises leased or operated by such Loan Party or any of its Subsidiaries
(as to the operations at such premises) is a transporter of hazardous waste
or an owner or operator of a hazardous waste treatment, storage or disposal
facility ("TSDF") as defined under 40 C.F.R. Parts 260-270 (in effect as of
the date of this Agreement) or any state, local, territorial or foreign
equivalent nor to such Loan Party's or any of its Subsidiaries' best
knowledge, have any of the properties owned, leased or operated by such
Loan Party of any or its Subsidiaries previously been a TSDF; and
(ix) there is not now, nor, to the best knowledge of any Loan
Party, has there been in the past, on, in or under any real property
leased, owned or operated by any Loan Party or any of its Subsidiaries or,
to the best knowledge of any Loan Party, any of their predecessors (A) any
underground storage tanks or surface tanks or impoundments, (B) any
asbestos-containing materials, (C) any polychlorinated biphenyls, or (D)
any radioactive substances.
(b) None of the exceptions set forth on Schedule 4.19 are reasonably
likely to result in any Loan Party or any Subsidiary of any Loan Party incurring
Environmental Costs and Liabilities in excess of $5,000,000 in the aggregate.
(c) Each Loan Party and each Subsidiary of each Loan Party has made
available to the Agent copies of all
141
environmental, health or safety inspections, reports, audits, investigations,
assessments, analyses and other reports relating to compliance with
Environmental Laws for any facility owned, operated or leased by a Loan Party
or any Subsidiary of any Loan Party that are in the possession, custody or
control of any Loan Party, any Subsidiary of any Loan Party, or their
respective consultants or counsel.
(d) The representations and warranties set forth in this Section 4.19
constitute the sole and exclusive representations and warranties with respect to
environmental matters hereunder.
4.20. Related Documents. (a) Except as permitted by Section 7.8, (i)
-----------------
none of the Related Documents has been amended or modified in any respect and no
provision therein has been waived, (ii) each of the representations and
warranties therein of each Loan Party and, to the knowledge of each Loan Party,
each other party thereto, are true and correct in all material respects, and
(iii) no default or event which with the giving of notice or lapse of time or
both would be a default by any Loan Party has occurred thereunder or, to the
knowledge of each Loan Party, by any other party thereto.
(b) The Obligations, the Company Obligations, the Dutch Operating Co.
Obligations, the U.K. Operating Co. Obligations and the Excluded U.S.
Liabilities constitute "Senior Debt" which is "Designated Senior Debt" pursuant
to the "Credit Agreement" (as such terms are defined in the Senior Subordinated
Indenture) and the holders thereof, each other Secured Party and Guarantied
Party are and shall be entitled to all of the rights of the holders of "Senior
Debt" which is "Designated Senior Debt" pursuant to the "Credit Agreement" (as
so defined), and the Agent shall be entitled to all of the rights of the "Agent"
(as defined in the Senior Subordinated Indenture), respectively, pursuant to the
Senior Subordinated Indenture, including Articles Eight and Twelve thereof.
4.21. Intellectual Property. (a) Except as otherwise provided in the
---------------------
Collateral Documents, to the best knowledge of each Loan Party after due
inquiry, such Loan Party and its Subsidiaries own the entire right, title and
interest to, license or otherwise have the right to use all licenses, permits,
inventions, patents, patent applications, trademarks, trademark applications,
service marks, service xxxx applications, trade names, trade secrets, know-how,
customer lists, computer software, copyrights, copyright
142
applications, franchises, authorizations and other proprietary rights
(including, without limitation, all Intellectual Property Collateral as
defined in any Collateral Document) material to the operations of their
respective businesses as now conducted (hereinafter collectively, "Material
Intellectual Property Rights"), without infringement upon or conflict with
the rights of any other Person with respect thereto, including, without
limitation, all trade names associated with any private label brands of such
Loan Party or any of its Subsidiaries, and no claim is pending or to any Loan
Party's knowledge threatened that any of such Loan Party's Material
Intellectual Property Rights is invalid or unenforceable.
(b) Except as otherwise provided in the Collateral Documents, to the
best knowledge of each Loan Party after due inquiry, the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
will not result in any loss or impairment of any of the Material Intellectual
Property Rights of any such Loan Party.
(c) Except as otherwise provided in the Collateral Documents, to the
best knowledge of each Loan Party after due inquiry, no slogan or other
advertising device, product, process, system, machine, manufacture, method,
substance, composition of matter, software, part or component, or other material
now made, used, sold, offered for sale, imported, or otherwise employed in the
operations of such Loan Party or any of its Subsidiaries, or now contemplated to
be made, used, sold, offered for sale, imported, or otherwise employed in the
operations of such Loan Party or any of its Subsidiaries, by such Loan Party or
any of its Subsidiaries infringes upon or conflicts with any rights owned by any
other Person, other than infringements or conflicts the consequences of which,
individually or in the aggregate, have no Material Adverse Effect, and no claim
or litigation regarding any of the foregoing is pending or threatened.
4.22. Real Property. (a) Each Loan Party and each of its
-------------
Subsidiaries own good and marketable fee simple absolute title to all of the
Real Estate purported to be owned by them, which Real Estate is at the date
hereof described in Schedule 4.22(a), and good and marketable title to, or valid
leasehold interests in, all other properties and assets purported to be owned by
such Loan Party or any of its Subsidiaries, including, without limitation, all
property reflected in the latest balance sheet referred to
143
in Section 4.5(a), and none of such properties and assets, including, without
limitation, the Real Estate, is subject to any Lien, except Liens granted to
the Agent on behalf of and for the ratable benefit of the Secured Parties
pursuant to the Loan Documents or permitted thereunder. Each Loan Party and
its Subsidiaries have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and
other documents, and have duly effected all recordings, filings and other
actions necessary to establish, protect and perfect such Loan Party's and its
Subsidiaries' right, title and interest in and to all such property.
(b) (i) At the date hereof the Leases currently in effect entered
into by any Loan Party or any of its Subsidiaries are described in Schedule
4.22(b); (ii) all Leases described in Schedule 4.22(b) are in full force and
effect, unmodified by any writing or otherwise; (iii) all rent, additional rent
and/or other charges reserved in or payable under the Leases have been paid to
the extent that they are payable to the date hereof; (iv) each Loan Party or any
of its Subsidiaries which is a party to any of the Leases enjoys the quiet and
peaceful possession of the estate created by that Lease; (v) no Loan Party or
any of its Subsidiaries has delivered or received any notices of default under
any Leases and are not in default under any of the terms of the Leases and there
are no circumstances which, with the passage of time or the giving of notice or
both, would constitute a default under the Leases; and (vi) each lessor under
the Leases is not in default under any of the terms of the Leases on its part to
be observed or performed.
(c) To the best knowledge of the Loan Parties, all components of
all improvements included within the real property owned or leased by any
Loan Party or any of its Subsidiaries (collectively, "Improvements"),
including, without limitation, the roofs and structural elements thereof and
the heating, ventilation, air conditioning, plumbing, electrical, mechanical,
sewer, waste water, storm water, paving and parking equipment, systems and
facilities included therein, are in good working order and repair. To the
best knowledge of the Loan Parties, all water, gas, electrical, steam,
compressed air, telecommunication, sanitary and storm sewage lines and
systems and other similar systems serving the real property owned or leased
by any Loan Party or any of its Subsidiaries are installed and operating and
are sufficient to enable the real property owned or leased by such Loan Party
or any of its Sub-
144
sidiaries to continue to be used and operated in the manner currently being
used and operated, and no Loan Party or any of its Subsidiaries has any
knowledge of any factor or condition that could result in the termination or
material impairment of the furnishing thereof. No Improvement or portion
thereof is dependent for its access, operation or utility on any land,
building or other Improvement not included in the real property owned or
leased by any Loan Party or any of its Subsidiaries, other than for access
provided pursuant to a recorded easement or other right of way establishing
the right of such access.
(d) All Permits required to have been issued or appropriate to enable
all real property owned or leased by any Loan Party or any of its Subsidiaries
to be lawfully occupied and used for all of the purposes for which they are
currently occupied and used have been lawfully issued and are in full force and
effect, other than those which in the aggregate have no Material Adverse Effect.
(e) No Loan Party or any of its Subsidiaries has received any notice,
or has any knowledge, of any pending, threatened or contemplated condemnation
proceeding affecting any real property owned or leased by such Loan Party or any
of its Subsidiaries or any part thereof, or any proposed termination or
impairment of any parking at any such owned or leased real property or of any
sale or other disposition of any real property owned or leased by such Loan
Party or any of its Subsidiaries or any part thereof in lieu of condemnation.
(f) To the best knowledge of the Loan Parties, no portion of any real
property owned or leased by any Loan Party or any of its Subsidiaries has
suffered any material damage by fire or other casualty loss which has not
heretofore been completely repaired and restored to its original condition. No
portion of any real property owned or leased by any Loan Party or any of its
Subsidiaries is located in a special flood hazard area as designated by any
Governmental Authority.
ARTICLE V
FINANCIAL COVENANTS
As long as any of the Obligations or Commitments remain outstanding,
unless the Majority Lenders and the Agent otherwise consent in writing, each
Loan Party, on its
145
behalf and on behalf of its Subsidiaries, agrees with the Lenders, the Issuer
and the Agent that:
5.1. Maximum Leverage Ratio. Euramax shall maintain at all times
----------------------
during each Fiscal Quarter set forth below, such maintenance to be evidenced as
at the end of each such Fiscal Quarter, on a consolidated basis, a ratio of
(a) the sum of Senior Indebtedness of Euramax and its Subsidiaries plus the
Senior Subordinated Notes to (b) EBITDA for Euramax and its consolidated
Subsidiaries determined on the basis of the four Fiscal Quarters ending on the
last day of such Fiscal Quarter, in each case not in excess of the ratio set
forth below for such Fiscal Quarter:
For the Fiscal
Quarter Ending on Maximum Ratio
----------------- -------------
September 30, 1997 5.50 to 1.00
December 31, 1997 5.50 to 1.00
March 31, 1998 5.50 to 1.00
June 30, 1998 5.50 to 1.00
September 30, 1998 5.35 to 1.00
December 31, 1998 5.35 to 1.00
March 31, 1999 5.35 to 1.00
June 30, 1999 5.35 to 1.00
September 30, 1999 5.10 to 1.00
December 31, 1999 5.10 to 1.00
March 31, 2000 5.10 to 1.00
June 30, 2000 5.10 to 1.00
September 30, 2000 4.85 to 1.00
December 31, 2000 4.85 to 1.00
March 31, 2001 4.85 to 1.00
June 30, 2001 4.85 to 1.00
September 30, 2001 4.50 to 1.00
December 31, 2001 4.50 to 1.00
March 31, 2002 4.50 to 1.00
June 30, 2002 4.50 to 1.00
September 30, 2002 4.25 to 1.00
December 31, 2002 4.25 to 1.00
March 31, 2003 4.25 to 1.00
June 30, 2003 4.25 to 1.00
September 30, 2003 4.00 to 1.00
December 31, 2003 4.00 to 1.00
146
For the Fiscal
Quarter Ending on Maximum Ratio
----------------- -------------
March 31, 2004 4.00 to 1.00
June 30, 2004 4.00 to 1.00
5.2. Fixed Charge Coverage Ratio. Euramax shall maintain at the end
---------------------------
of each Fiscal Quarter set forth below, on a consolidated basis, a ratio of (a)
EBITDA less Capital Expenditures for Euramax and its consolidated Subsidiaries
to (b) Fixed Charges, in each case determined on the basis of the four
consecutive Fiscal Quarters ending on the date of determination, of not less
than the ratio set forth below for such Fiscal Quarter:
For the Fiscal
Quarter Ending on Minimum Ratio
----------------- -------------
June 30, 1997 1.00 to 1.00
September 30, 1997 1.00 to 1.00
December 31, 1997 1.00 to 1.00
March 31, 1998 1.00 to 1.00
June 30, 1998 1.00 to 1.00
September 30, 1998 1.00 to 1.00
December 31, 1998 1.00 to 1.00
March 31, 1999 1.00 to 1.00
June 30, 1999 1.00 to 1.00
September 30, 1999 1.00 to 1.00
December 31, 1999 1.00 to 1.00
March 31, 2000 1.00 to 1.00
June 30, 2000 1.00 to 1.00
September 30, 2000 1.00 to 1.00
December 31, 2000 and thereafter 1.00 to 1.00;
except that, in the event that any Cap Ex Carryover referred to in Section 5.3
is utilized during any such four Fiscal Quarter period and, solely as a result
of such utilization, such ratio for such period is less than the ratio set forth
above with respect to such period, Euramax shall be deemed to be in compliance
with this Section 5.2 so long as Euramax would have been in compliance with this
Section 5.2 if such Cap Ex Carryover was expended during the Related Fiscal Year
(as defined in Section 5.3).
147
5.3. Capital Expenditures. The aggregate amount of Capital
Expenditures made by the Loan Parties and their Subsidiaries during any Fiscal
Year set forth below shall not be in excess of the amount set forth below for
such Fiscal Year:
1997 $12,500,000
1998 15,000,000
1999 12,500,000
2000 13,500,000
2001 13,500,000
2002 13,500,000
2003 13,500,000
provided, however, that to the extent that actual Capital Expenditures for any
Fiscal Year shall be less than the maximum amount set forth above for such
Fiscal Year (without giving effect to the carryover permitted by this proviso),
the excess of said maximum amount over such actual Capital Expenditures (such
excess from any Fiscal Year being a "Cap Ex Carryover", and such Fiscal Year
being, with respect to such Cap Ex Carryover, the "Related Fiscal Year") shall,
in addition, be available for Capital Expenditures in the next succeeding Fiscal
Year (but may not be carried over into any succeeding Fiscal Year).
5.4. Interest Coverage Ratio. Euramax shall maintain, on a
consolidated basis, at the end of any Fiscal Quarter of Euramax set forth below,
a ratio of (a) EBITDA of Euramax and its consolidated Subsidiaries for the
immediately preceding four consecutive Fiscal Quarters of Euramax to (b) the
Cash Interest Expense of Euramax and its consolidated Subsidiaries for such
period (except, with respect to both clauses (a) and (b), in the case of the
third and fourth Fiscal Quarters of 1997 and the first Fiscal Quarter of 1998,
which shall be determined on the basis of the period commencing on the Effective
Date and ending at the end of such Fiscal Quarter), of not less than the ratio
set forth below for such Fiscal Quarter:
For the Fiscal Minimum Interest
Quarter Ending on Coverage Ratio
----------------- ----------------
September 30, 1997 1.50 to 1.00
December 31, 1997 1.60 to 1.00
March 31, 1998 1.65 to 1.00
June 30, 1998 1.70 to 1.00
148
For the Fiscal Minimum Interest
Quarter Ending on Coverage Ratio
----------------- ----------------
September 30, 1998 1.75 to 1.00
December 31, 1998 1.75 to 1.00
March 31, 1999 1.75 to 1.00
June 30, 1999 1.75 to 1.00
September 30, 1999 1.80 to 1.00
December 31, 1999 1.80 to 1.00
March 31, 2000 1.80 to 1.00
June 30, 2000 1.80 to 1.00
September 30, 2000 1.85 to 1.00
December 31, 2000 1.85 to 1.00
March 31, 2001 1.85 to 1.00
June 30, 2001 1.85 to 1.00
September 30, 2001 1.90 to 1.00
December 31, 2001 1.90 to 1.00
March 31, 2002 1.90 to 1.00
June 30, 2002 1.90 to 1.00
September 30, 2002 1.95 to 1.00
December 31, 2002 1.95 to 1.00
March 31, 2003 1.95 to 1.00
June 30, 2003 1.95 to 1.00
September 30, 2003 2.00 to 1.00
December 31, 2003 2.00 to 1.00
March 31, 2004 2.00 to 1.00
June 30, 2004 2.00 to 1.00
5.5. Minimum EBITDA. Euramax shall not permit the EBITDA for Euramax
and its consolidated Subsidiaries for the period of four consecutive Fiscal
Quarters (taken as one accounting period) ending on the last day of each Fiscal
Quarter set forth below to be less than the amount set forth opposite such date:
For the Fiscal
Quarter Ending On Minimum Amount
----------------- --------------
September 30, 1997 $47,000,000
December 31, 1997 47,000,000
March 31, 1998 47,000,000
June 30, 1998 47,000,000
September 30, 1998 48,000,000
149
For the Fiscal
Quarter Ending On Minimum Amount
----------------- --------------
December 31, 1998 48,000,000
March 31, 1999 48,000,000
June 30, 1999 48,000,000
September 30, 1999 48,000,000
December 31, 1999 49,000,000
March 31, 2000 49,000,000
June 30, 2000 49,000,000
September 30, 2000 49,000,000
December 31, 2000 50,000,000
March 31, 2001 50,000,000
June 30, 2001 50,000,000
September 30, 2001 50,000,000
December 31, 2001 51,000,000
March 31, 2002 51,500,000
June 30, 2002 52,000,000
September 30, 2002 52,500,000
December 31, 2002 53,000,000
March 31, 2003 53,500,000
June 30, 2003 54,000,000
September 30, 2003 54,500,000
December 31, 2003 55,000,000
March 31, 2004 55,000,000
June 30, 2004 55,000,000
ARTICLE VI
AFFIRMATIVE COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, unless the Majority Lenders and the Agent otherwise consent in
writing, each Loan Party, on its behalf and on behalf of its Subsidiaries,
agrees with the Lenders, the Issuer and the Agent that:
6.1. Compliance with Laws, Etc. Each Loan Party shall comply, and
shall cause each of its Subsidiaries to comply, in all material respects with
all Requirements of Law, Contractual Obligations, commitments, instruments,
licenses, permits and franchises, including, without limitation, all Permits;
provided, however, that the Loan Parties shall not be deemed in default of this
Section 6.1
150
if all such non-compliances in the aggregate have no Material Adverse Effect.
6.2. Conduct of Business. Each Loan Party shall (a) conduct, and
shall cause each of its Subsidiaries to conduct, its business in the ordinary
course and materially consistent with past practice and logical extensions
thereof; (b) use, and cause each of its Subsidiaries to use, its reasonable
efforts, in the ordinary course and consistent with past practice, to
(i) preserve its business and the goodwill and business of the customers,
advertisers, suppliers and others having business relations with any Loan Party
or any of its Subsidiaries, and (ii) keep available the services and goodwill of
its present employees; (c) preserve, and cause each of its Subsidiaries to
preserve, all material registered patents, trademarks, trade names, copyrights
and service marks with respect to its business; and (d) perform and observe, and
cause each of its Subsidiaries to perform and observe, all the terms, covenants
and conditions required to be performed and observed by it under its Contractual
Obligations (including, without limitation, to pay all rent and other charges
payable under any lease and all debts and other obligations as the same become
due), and do, and cause its Subsidiaries to do, all things necessary to preserve
and to keep unimpaired its rights under such Contractual Obligations; provided,
however, that, in the case of each of clauses (a) through (d), the Loan Parties
shall not be deemed in default of this Section 6.2 if all such failures in the
aggregate have no Material Adverse Effect.
6.3. Payment of Taxes, Etc. Each Loan Party shall pay and discharge,
and shall cause each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, all lawful governmental claims, taxes, assessments,
charges and levies, except where contested in good faith, by proper proceedings,
if adequate reserves therefor have been established on the books of such Loan
Party or the appropriate Subsidiary in conformity with GAAP, if all such
non-payments in the aggregate have no Material Adverse Effect and, with respect
to the Real Estate subject to any Domestic Mortgage, U.K. Debenture or Dutch
Mortgage made by any Loan Party, such Loan Party otherwise complies with the
provisions thereof.
6.4. Maintenance of Insurance. Each Loan Party shall maintain, and
shall cause each of its Subsidiaries to maintain, insurance with responsible
and reputable insurance
151
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Loan Party or such
Subsidiary operates or as otherwise satisfactory to the Agent, in its sole
judgment exercised reasonably, and, in any event, all insurance required by
any Collateral Document. All such insurance shall name the Agent and the
Lenders as additional insured or loss payees, as the Agent shall determine.
Each Loan Party will furnish to the Lenders from time to time such
information as may be reasonably requested as to such insurance.
6.5. Preservation of Corporate Existence, Etc. Each Loan Party shall
preserve and maintain, and shall cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises, except as permitted under Section 7.5.
6.6. Access. Each Loan Party shall, at any reasonable time and from
time to time at reasonable intervals and, upon reasonable notice, permit the
Agent or any of the Lenders, or any agents or representatives thereof, to
(a) examine and make copies of and abstracts from the records and books of
account of such Loan Party and each of its Subsidiaries, (b) visit the
properties of such Loan Party and each of its Subsidiaries, (c) discuss the
affairs, finances and accounts of such Loan Party and each of its Subsidiaries
with any of their respective officers or directors, and (d) communicate directly
with such Loan Party's independent certified public accountants, provided that
upon the occurrence and during the continuance of any Default or Event of
Default the Agent and each Lender shall have the right to do any of the
foregoing at any time and without reasonable notice. Each Loan Party shall
authorize its independent certified public accountants to disclose to the Agent
or any Lender any and all financial statements and other information of any
kind, including, without limitation, copies of any management letter, or the
substance of any oral information that such accountants may have with respect to
the business, financial condition, results of operations or other affairs of
such Loan Party or any of its Subsidiaries.
6.7. Keeping of Books. Each Loan Party shall keep, and shall cause
each of its Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
152
and the assets and business of such Loan Party and each such Subsidiary.
6.8. Maintenance of Properties, Etc. Except as permitted by Section
7.5, each Loan Party shall maintain and preserve, and shall cause each of its
Subsidiaries to maintain and preserve, (i) all of its properties which are used
or useful or necessary in the conduct of its business in good working order and
condition, and (ii) all rights, permits, licenses, approvals and privileges
(including, without limitation, all Permits) which are used or useful or
necessary in the conduct of its business; provided, however, that the Loan
Parties shall not be deemed in default of this Section 6.8 if all such failures
in the aggregate have no Material Adverse Effect.
6.9. Performance and Compliance with Other Covenants. Each Loan
Party shall perform and comply with, and shall cause each of its Subsidiaries to
perform and comply with, each of the covenants and agreements set forth in the
Related Documents and under each other Contractual Obligation to which it or any
of its Subsidiaries is a party; provided, however, that the Loan Parties shall
not be deemed in default of this Section 6.9 if all such failures in the
aggregate have no Material Adverse Effect.
6.10. Application of Proceeds. Each Loan Party shall use the entire
amount of the proceeds of the Loans as provided in Section 4.18.
6.11. Financial Statements. Each Loan Party referred to below shall
furnish to the Agent on behalf of the Lenders and the Issuer, in sufficient
original copies for the Lenders and the Issuer:
(a) as soon as available and in any event within 45 days after the
end of each month, consolidated and consolidating balance sheets of each of
Euramax and its Subsidiaries, U.S. Holdings and its Subsidiaries, U.K. Holdings
and its Subsidiaries and Dutch Holdings and its Subsidiaries as of the end of
such month and consolidated and consolidating statements of income, retained
earnings and cash flow of each of Euramax and its Subsidiaries, U.S. Holdings
and its Subsidiaries, U.K. Holdings and its Subsidiaries and Dutch Holdings and
its Subsidiaries for the period commencing at the end of the previous month and
ending with the end of such month, all prepared in conformity with GAAP and
certified by the chief financial
153
officer of each of Euramax, U.S. Holdings, U.K. Holdings and Dutch Holdings,
respectively, as fairly presenting the financial condition and results of
operations of Euramax and its Subsidiaries, U.S. Holdings and its
Subsidiaries, U.K. Holdings and its Subsidiaries and Dutch Holdings and its
Subsidiaries at such date and for such period, subject to year-end audit
adjustments and without footnote disclosure, together with (i) a certificate
of said officer and of the chief financial officer of each of Euramax, U.S.
Holdings, U.K. Holdings and Dutch Holdings, respectively, stating that no
Default or Event of Default has occurred and is continuing or, if a Default
or an Event of Default has occurred and is continuing, a statement as to the
nature thereof and the action which Euramax, U.S. Holdings, U.K. Holdings or
Dutch Holdings, as applicable, proposes to take with respect thereto, and
(ii) a written discussion and analysis by the management of each of Euramax,
U.S. Holdings, U.K. Holdings and Dutch Holdings, respectively, of the
financial statements furnished in respect of such month;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, consolidated
and consolidating balance sheets of each of Euramax and its Subsidiaries, U.S.
Holdings and its Subsidiaries, U.K. Holdings and its Subsidiaries and Dutch
Holdings and its Subsidiaries as of the end of such quarter and consolidated and
consolidating statements of income, retained earnings and cash flow of each of
Euramax and its Subsidiaries, U.S. Holdings and its Subsidiaries, U.K. Holdings
and its Subsidiaries and Dutch Holdings and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such Fiscal Quarter, all prepared in conformity with GAAP and certified by the
chief financial officer of each of Euramax, U.S. Holdings, U.K. Holdings and
Dutch Holdings, respectively, as fairly presenting the financial condition and
results of operations of Euramax and its Subsidiaries, U.S. Holdings and its
Subsidiaries, U.K. Holdings and its Subsidiaries and Dutch Holdings and its
Subsidiaries at such date and for such period, subject to year-end audit
adjustments and without footnote disclosure, together with (i) a certificate of
said officer and of the chief financial officer of each of Euramax, U.S.
Holdings, U.K. Holdings and Dutch Holdings, respectively, stating that no
Default or Event of Default has occurred and is continuing or, if a Default or
an Event of Default has occurred and is continuing, a statement as to the nature
thereof and the action which Euramax, U.S. Holdings, U.K. Holdings or Dutch
154
Holdings, as applicable, proposes to take with respect thereto, (ii) a schedule
in form satisfactory to the Agent of the computations used by Euramax, U.S.
Holdings, U.K. Holdings or Dutch Holdings, as applicable, in determining
compliance with all financial covenants contained herein, and (iii) a written
discussion and analysis by the management of each of Euramax, U.S. Holdings,
U.K. Holdings and Dutch Holdings, respectively, of the financial statements
furnished in respect of such Fiscal Quarter;
(c) as soon as available and in any event within 90 days after the
end of each Fiscal Year, consolidated and consolidating balance sheets of each
of Euramax and its Subsidiaries, U.S. Holdings and its Subsidiaries, U.K.
Holdings and its Subsidiaries and Dutch Holdings and its Subsidiaries as of the
end of such year and consolidated and consolidating statements of income,
retained earnings and cash flow of each of Euramax and its Subsidiaries, U.S.
Holdings and its Subsidiaries, U.K. Holdings and its Subsidiaries and Dutch
Holdings and its Subsidiaries for such Fiscal Year, all prepared in conformity
with GAAP and certified, in the case of such consolidated financial statements,
without qualification as to the scope of the audit or as to Euramax, U.S.
Holdings, U.K. Holdings and Dutch Holdings, respectively, being a going concern
by Coopers & Xxxxxxx or other independent public accountants which is a "Big
Six" accounting firm, together with (i) a certificate of such accounting firm
stating that in the course of the audit of the consolidated financial statements
of each of Euramax and its Subsidiaries, U.S. Holdings and its Subsidiaries,
U.K. Holdings and its Subsidiaries and Dutch Holdings and its Subsidiaries,
which audit was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge that
a Default or Event of Default has occurred and is continuing, or, if in the
opinion of such accounting firm, a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, Euramax's compliance with all
financial covenants contained herein, and (iii) a written discussion and
analysis by the management of each of Euramax, U.S. Holdings, U.K. Holdings and
Dutch Holdings of the financial statements furnished in respect of such Fiscal
Year;
155
(d) promptly after the same are received by Euramax, U.S. Holdings,
U.K. Holdings or Dutch Holdings, a copy of each management letter provided to
Euramax, U.S. Holdings, U.K. Holdings or Dutch Holdings by its independent
certified public accountants which refers in whole or in part to any inadequacy,
defect, problem, qualification or other lack of fully satisfactory accounting
controls utilized by Euramax or any of its Subsidiaries, U.S. Holdings and its
Subsidiaries, U.K. Holdings and its Subsidiaries or Dutch Holdings and its
Subsidiaries;
(e) within 30 days after the end of each calendar month, a Borrowing
Base Certificate of each Borrower as of the end of such month, executed by a
Responsible Officer of such Borrower; and
(f) as soon as available and in any event not later than 45 days
after the first day of each Fiscal Year, an annual business and financial plan
for such Fiscal Year and the next succeeding two Fiscal Years, which plan (with
respect to the first Fiscal Year) shall be updated semi-annually, and an annual
budget of such Loan Party and its Subsidiaries for such Fiscal Year and the
succeeding two Fiscal Years, displaying on a monthly and quarterly basis for the
first Fiscal Year and on an annual basis thereafter anticipated balance sheets,
forecasted revenues, net income, cash flow, EBITDA, Capital Expenditures and
working capital requirements all on a consolidated and consolidating basis.
6.12. Reporting Requirements. Each Loan Party shall furnish to the
Lenders:
(a) prior to any Asset Sale (other than an Asset Sale arising by
reason of the destruction or condemnation of property or the taking of property
by eminent domain) anticipated to generate in excess of $1,000,000 in Asset
Sales Proceeds (determined in Dollars), a notice (i) describing the assets being
sold and (ii) stating the estimated Asset Sales Proceeds in respect of such
Asset Sale;
(b) promptly and in any event within 30 days after any Loan Party or
any of its Subsidiaries knows or has reason to know that any ERISA Event has
occurred, a written statement of the chief financial officer or other
appropriate officer of such Loan Party describing such ERISA Event or waiver
request and the action, if any, which such Loan Party, its Subsidiaries and
ERISA Affiliates propose to
156
take with respect thereto and a copy of any notice filed by or with the PBGC
or the IRS pertaining thereto;
(c) promptly and in any event within 10 days after receipt thereof, a
copy of any adverse notice, determination letter, ruling or opinion any Loan
Party, any of its Subsidiaries or any ERISA Affiliate receives from the PBGC,
DOL or IRS with respect to any Plan, other than those which, in the aggregate,
do not have any reasonable likelihood of resulting in a Material Adverse Change;
(d) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator, affecting any Loan Party or any of its Subsidiaries, except those
which in the aggregate, if adversely determined, would have no Material Adverse
Effect;
(e) promptly and in any event within two Business Days after any Loan
Party becomes aware of the existence of (i) any Default or Event of Default,
(ii) any breach or non-performance of, or any default under, any Related
Document or any other Contractual Obligation which is material to the business,
prospects, operations or financial condition of such Loan Party and its
Subsidiaries taken as one enterprise, or (iii) any Material Adverse Change or
any event, development or other circumstance which has any reasonable likelihood
of causing or resulting in a Material Adverse Change, telephonic or telecopied
notice in reasonable detail specifying the nature of the Default, Event of
Default, breach, non-performance, default, event, development or circumstance,
including, without limitation, the anticipated effect thereof, which notice
shall be promptly confirmed in writing within five days;
(f) promptly after the sending or filing thereof, copies of all
reports which any Loan Party sends to its security holders generally, and copies
of all reports and registration statements which any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange or the National Association of Securities Dealers, Inc., or
other equivalent body in any relevant jurisdiction;
(g) promptly after the sending or the receipt thereof, copies of all
notices, certificates or reports delivered or received pursuant to any Related
Document;
157
(h) promptly and in any event within 10 days of any Loan Party or any
of its Subsidiaries learning of any of the following, written notice to the
Agent of any of the following except any Release, order, notice, permit,
application, communication, report, claim, Remedial Action, violation, Legal
Proceeding, acquisition or lease referred to in any of clauses (i), (ii), (iv),
(v), (vii) or (viii) below that both would not reasonably be expected to
individually result in Environmental Costs and Liabilities in excess of
$1,000,000 and would not, when the Environmental Liabilities and Costs to which
such Loan Party or such Subsidiary are reasonably likely to be subjected as a
result thereof are aggregated with all Environmental Liabilities and Costs to
which all Loan Parties and their Subsidiaries are reasonably likely to be
subjected as a result of all Releases, orders, notices, permits, applications,
communications, reports, claims, Remedial Actions, violations, Legal
Proceedings, acquisitions and leases referred to in said clauses, exceed
$5,000,000 in the aggregate in any consecutive 24 month period, and no
Environmental Lien arises therefrom:
(i) the Release or threatened Release of any Hazardous Material
on or from any property owned, operated or leased by such Loan Party or any
of its Subsidiaries and any written order, notice, permit, application or
other written communication or report received by such Loan Party or any of
its Subsidiaries in connection with or relating to any such Release or
threatened Release;
(ii) any notice or claim to the effect that such Loan Party or
any of its Subsidiaries is or may be liable as a Potentially Responsible
Party under CERCLA or any state, local or foreign Environmental Law to any
Person or any other notice or claim to the effect that such Loan Party or
any of its Subsidiaries is or may be liable as a result of the Release or
threatened Release of any Hazardous Material;
(iii) receipt by such Loan Party or any of its Subsidiaries
of notification that any real or personal property of such Loan Party or
any of its Subsidiaries is subject to an Environmental Lien;
(iv) any Remedial Action taken by such Loan Party or any of its
Subsidiaries or any other Person in response to any Release of a Hazardous
Material on,
158
under or about any real property owned, operated or leased by such Loan
Party or any of its Subsidiaries;
(v) receipt by such Loan Party or any of its Subsidiaries of any
notice of violation of, or knowledge by such Loan Party or any of its
Subsidiaries that there exists a condition which may result in a violation
by such Loan Party or any of its Subsidiaries of, any Environmental Law
currently or hereafter in effect;
(vi) any proposed Capital Expenditure by such Loan Party or any
of its Subsidiaries intended or designed to implement any existing or
additional Remedial Action or to meet any new obligation under any
Environmental Law currently or hereinafter in effect; or
(vii) the commencement of any Legal Proceeding or
investigation alleging a violation of or liability pursuant to any
Environmental Law.
(i) upon reasonable written request by any Lender through the Agent,
a report providing an update of the status of any Environmental Claim, Remedial
Action or any other issue identified in any notice or report required pursuant
to this Section 6.12;
(j) promptly and in any event within five days after any Loan Party
or any of its Subsidiaries knows or has reason to know of any action,
investigation, claim or proceeding (including, without limitation, any action or
claim that arises out of or is based upon any allegation of infringement of any
Intellectual Property or any License, as such terms are defined in the
Collateral Documents), whether asserted by or against such Loan Party or any of
its Subsidiaries, which, if adversely determined, could result in a Material
Adverse Change or could have a Material Adverse Effect, a written statement by a
Responsible Officer of such Loan Party describing such action, investigation,
claim or proceeding and the action which such Loan Party or Subsidiary proposes
to take with respect thereto; and
(k) such other information respecting the business, properties,
condition, financial or otherwise, or operations of any Loan Party or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
159
6.13. Leases. Each Loan Party shall provide the Agent with a copy of
each lease of real property to which such Loan Party or any Subsidiary of such
Loan Party is then a party, whether as lessor or lessee. Each Loan Party shall,
and shall cause each of its Subsidiaries to, (i) comply in all material respects
with all of their respective obligations under all of their respective Specified
Leases now or hereafter held respectively by them with respect to real property,
including but not limited to paying the rent and all other sums and charges
mentioned in, and payable under, the Specified Leases; (ii) do all things
necessary to preserve and to keep unimpaired its rights under the Specified
Leases; (iii) not waive, excuse or discharge any of the material obligations of
any lessor under any of the Specified Leases without the Agent's prior written
consent in each instance and shall diligently and continuously enforce the
material obligations of each lessor under the Specified Leases; (iv) not do,
permit or suffer any event or omission as a result of which there could occur a
default under any of the Specified Leases or any event which, with the giving of
notice or the passage or time, or both, would constitute a default under any of
the Specified Leases which could permit any party to any of the Specified Leases
to validly terminate that lease (including, but without limiting the generality
of the foregoing, a default in any payment obligation); (v) not cancel,
terminate, surrender, modify or amend or in any way alter or permit the
alteration of any provision of any of the Specified Leases or agree to any
termination, amendment, modification or surrender of any of the Specified Leases
without the Agent's prior written consent in each instance; (vi) promptly
furnish to the Agent copies of such information and evidence as the Agent may
request concerning each Loan Party's and any of its Subsidiaries due observance,
performance and compliance with the terms, covenants and conditions of any of
the Specified Leases; (vii) execute and deliver to the Agent, within five days
after request and at its sole cost and expense, such documents, instruments or
agreements as may be required to permit the Agent to cure any default under any
of the Specified Leases; (viii) obtain and deliver to the Agent within twenty
days after written demand by the Agent, an estoppel certificate from the lessor
under any of the Specified Leases setting forth (1) the name of the lessee and
the lessor thereunder, (2) that such Specified Lease is in full force and effect
and has not been modified or, if it has been modified, the date of each
modification (together with copies of each such modification), (3) the basic
rent payable under such Specified Lease, (4) the date
160
to which all rental charges have been paid by the lessee under such Specified
Lease, (5) whether a notice of default has been received by the lessor under
such Specified Lease which has not been cured, and if such notice has been
received, the date it was received and the nature of the default, (6) whether
there are any alleged defaults of the lessee under such Specified Lease and,
if there are, setting forth the nature thereof in reasonable detail, and (7)
if the lessee under such Specified Lease shall be in default, the default;
(ix) not assign any Leases or sublet any portion of the premises subject to a
Domestic Leasehold Mortgage or assign or sublet any other Lease if such
assignment or sublet would have a Material Adverse Effect; (x) provide the
Agent with a copy of each notice of default under any Specified Lease,
including, without limitation, any notice of lessor's intention to terminate
any Specified Lease or to re-enter and take possession of any real property
encumbered by a Specified Lease, received by such Loan Party or any
Subsidiary of such Loan Party immediately upon receipt thereof and deliver to
the Agent a copy of each notice of default sent by such Loan Party or any
Subsidiary of such Loan Party under any Specified Lease simultaneously with
its delivery of such notice under such Specified Lease; (xi) notify the
Agent, not later than 30 days prior to the date of the expiration of the term
of any Specified Lease, of the intention of such Loan Party or any Subsidiary
of such Loan Party to either renew or to not renew any such Specified Lease,
and, if such Loan Party or any Subsidiary of such Loan Party intends to renew
such Specified Lease, the terms and conditions of such renewal; (xii) notify
the Agent at least 14 days prior to the date such Loan Party or any
Subsidiary of such Loan Party takes possession of, or becomes liable under,
any new leased premises or Lease, whichever is earlier; (xiii) with respect
to the Leases subject to any Domestic Leasehold Mortgage, comply with the
provisions of such Domestic Leasehold Mortgage with respect to the applicable
Leases, which provisions shall control; and (xiv) to the extent required by
the Agent, promptly execute, deliver and record a first priority Domestic
Leasehold Mortgage in favor of the Agent on behalf and for the ratable
benefit of the Secured Parties should such Loan Party or any Subsidiary of
such Loan Party enter into, renew or be a party to a Lease reasonably
designated by the Agent as being material to such Loan Party or such Loan
Party and its Subsidiaries taken as a whole, which Lease shall expressly
permit the mortgaging thereof to the Agent, contain non-disturbance
provisions satisfactory to the Agent and include such other customary lender
protections as may
161
be required by the Agent, together with a Title Insurance Policy in an amount
reasonably requested by the Agent and a current ALTA survey and surveyor's
certificate in form and substance satisfactory to the Agent.
6.14. New Real Estate. If, at any time, any Loan Party or any of its
Subsidiaries acquires any Real Estate not covered by a Domestic Mortgage, a U.K.
Debenture or Dutch Mortgage, such Loan Party or such Subsidiary shall promptly
execute, deliver and record a first priority mortgage or deed of trust in favor
of the Agent on behalf and for the ratable benefit of the Secured Parties
covering such Real Estate (subordinate only to such Liens as are permitted
hereunder), in form and substance satisfactory to the Agent, and provide the
Agent, at such Loan Party's sole cost and expense, with a Title Insurance Policy
covering such Real Estate in an amount equal to the purchase price of such Real
Estate, and a current ALTA survey thereof, and a surveyor's certificate in form
and substance satisfactory to the Agent.
6.15. Employee Plans. For each Plan and any related trust hereafter
adopted or maintained by any Loan Party intended to qualify under Code Section
401 or 501, such Loan Party shall (i) seek, and cause such of its ERISA
Affiliates to seek, and receive determination letters from the IRS to the effect
that such Plan is so qualified; and (ii) cause such Plan to be so qualified,
except where the non-qualification of which would not have a Material Adverse
Effect.
6.16. Borrowing Base Determination. (a) Each Borrower shall
conduct, or shall cause to be conducted, at its expense, and upon request of the
Agent, and present to the Agent for approval, such appraisals, investigations
and reviews as the Agent shall reasonably request for the purpose of determining
the Borrowing Base, all upon reasonable notice and at such reasonable times
during normal business hours and not more than once during any Fiscal Year or,
upon the occurrence and during the continuation of a Default or an Event of
Default, as often as may be reasonably requested. Each Borrower shall furnish
to the Agent any information which the Agent may reasonably request regarding
the determination and calculation of the Borrowing Base including, without
limitation, correct and complete copies of any invoices, underlying agreements,
instruments or other documents and the identity of all obligors.
162
(b) (i) Euramax and each Borrower shall promptly notify the Agent in
writing in the event that at any time Euramax, such Borrower or any of their
respective Subsidiaries receives or otherwise gains knowledge that either (A)
the Borrowing Base has decreased by more than 25% from the Borrowing Base
reflected in the most recent Borrowing Base Certificates delivered pursuant to
Section 6.11 or (B) the Borrowing Base attributable to any such Borrower and its
Subsidiaries has decreased by more than 25% from the Borrowing Base reflected in
the most recent Borrowing Base Certificate delivered by such Borrower pursuant
to Section 6.11; (ii) each of Euramax and U.S. Operating Co. shall promptly
notify the Agent in writing in the event that at any time Euramax, U.S.
Operating Co. or any of their respective Subsidiaries receives or otherwise
gains knowledge that the U.S. Borrowing Base has decreased by more than 25% from
the U.S. Borrowing Base reflected in the most recent Borrowing Base Certificate
delivered by U.S. Operating Co. pursuant to Section 6.11; (iii) Euramax and each
Borrower shall promptly notify the Agent in writing in the event that at any
time the Swing Loans and Revolving Credit Loans outstanding at such time plus
the Letter of Credit Obligations outstanding at such time exceed the Maximum
Amount of Revolver Liabilities at such time as a result of any decrease in the
Borrowing Base, and the amount of such excess; and (iv) each of Euramax and U.S.
Operating Co. shall promptly notify the Agent in writing in the event that at
any time the Swing Loans and Revolving Credit Loans made to U.S. Operating Co.
outstanding at such time plus the Letter of Credit Obligations outstanding at
such time exceed the Maximum Amount of Revolver Liabilities of U.S. Operating
Co. at such time as a result of any decrease in the U.S. Borrowing Base, and the
amount of such excess.
(c) The Agent may make test verifications of the Accounts and
physical verifications of the inventory in any manner and through any medium
that the Agent considers advisable, and each Borrower shall furnish all such
assistance and information as the Agent may require in connection therewith.
Notwithstanding the foregoing, except upon the occurrence and during the
continuation of a Default or an Event of Default, the Agent shall not directly
contact (by telephone, mail or otherwise) any customer of any Borrower in
connection with such verifications.
6.17. Fiscal Year. Each Loan Party shall maintain as its Fiscal Year
the twelve month period ending on December 31 of each year.
163
6.18. Environmental Matters. (a) Each Loan Party shall comply in
all material respects and shall cause each of its Subsidiaries to comply in all
material respects with all applicable Environmental Laws currently or hereafter
in effect.
(b) If the Agent or the Lenders at any time have a reasonable basis
to believe that there may be a material violation of any Environmental Law by
any Loan Party or any of its Subsidiaries related to any real property owned,
leased or operated by such Loan Party or any of its Subsidiaries, which
violation may reasonably be expected to result in Environmental Liabilities and
Costs exceeding $1,000,000 individually or in excess of $2,500,000 in any Fiscal
Year when aggregated with all Environmental Liabilities and Costs reasonably
expected to result from all prior violations, or, if any Event of Default
occurs, then such Loan Party agrees, upon request from the Agent, to provide the
Agent, at such Loan Party's expense, with such reports, certificates,
engineering studies or other written material or data as the Agent or Lenders
may reasonably require so as to reasonably satisfy the Agent and Lenders that
such Loan Party or such Subsidiary is in material compliance with such
Environmental Laws; provided, however, that should any Loan Party fail to
provide such reports, certifications, engineering studies or other written
material or data within 30 days of the Agent's request, the Agent, its employees
and agents shall have the right, at such Loan Party's sole cost and expense, to
conduct such environmental assessments or investigations as may reasonably be
required to satisfy the Agent and Lenders that such Loan Party or its Subsidiary
is in material compliance with such Environmental Laws. In addition, upon
reasonable notice to the applicable Loan Party or Subsidiary thereof, the Agent
shall have the right to inspect during normal business hours any real property
owned, leased or operated by any Loan Party or any of its Subsidiaries if at any
time the Agent or the Lenders have a reasonable basis to believe that there may
be such a material violation of Environmental Law.
(c) Each Loan Party shall, and shall cause each of its Subsidiaries
to, take such Remedial Action or other action as required by Environmental Laws
currently or hereafter in effect, as required by any Governmental Authority,
except to the extent contested in good faith and by proper proceedings, or as is
appropriate and consistent with good business practice; provided, however, that
the Loan Parties
164
shall be deemed not to be in default of this subsection (c) if all such
failures by the Loan Parties and their Subsidiaries to take such Remedial
Actions or other actions do not subject the Loan Parties and their
Subsidiaries to Environmental Liabilities and Costs of $2,500,000 or more in
the aggregate.
6.19. Certain Additional Covenants. (a) Promptly, but in any event
no later than one Business Day after the Effective Date, Coated Products B.V.
shall furnish to the Agent evidence of the registration of the Additional Dutch
Mortgage with the Land Registry's Offices in Roermond, the Netherlands.
(b) Promptly, by in any event no later than 60 days after the
Effective Date, a Blocked Account Letter for each Blocked Account maintained by
either Fabral Holdings or Fabral, Inc. with any Blocked Account Bank, duly
executed by such Domestic Loan Party and such Blocked Account Bank.
ARTICLE VII
NEGATIVE COVENANTS
As long as any of the Obligations or Commitments remain outstanding,
without the written consent of the Majority Lenders and the Agent, each Loan
Party, on its behalf and on behalf of its Subsidiaries, agrees with the Lenders,
the Issuer and the Agent that:
7.1. Liens, Etc. No Loan Party shall create or suffer to exist, nor
shall it permit any of its Subsidiaries to create or suffer to exist, any Lien
upon or with respect to any of its or such Subsidiary's properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, except for:
(a) Liens created pursuant to the Loan Documents;
(b) Liens arising by operation of law in favor of materialmen,
mechanics, warehousemen, carriers, lessors or other similar Persons incurred by
French Operating Co. or any of its Subsidiaries, any Operating Company or any
Operating Company Subsidiary in the ordinary course of business which secure its
obligations to such Person; provided, however, that (i) French Operating Co. or
such Subsidiary thereof or such Operating Company or such Operating Company
165
Subsidiary is not in default with respect to such payment obligation to such
Person, (ii) French Operating Co. or such Subsidiary thereof or such Operating
Company or such Operating Company Subsidiary is in good faith and by appropriate
proceedings diligently contesting such obligation and adequate provision is made
for the payment thereof, or (iii) all such failures by French Operating Co., its
Subsidiaries, the Operating Companies and Operating Company Subsidiaries in the
aggregate have no Material Adverse Effect;
(c) Liens (excluding Environmental Liens) on assets (other than Stock
or Stock Equivalents) securing taxes, assessments or governmental charges or
levies; provided, however, that no Loan Party or any of its Subsidiaries is in
default in respect of any payment obligation with respect thereto unless
(i) such Loan Party or such Subsidiary is in good faith and by appropriate
proceedings diligently contesting such obligation and adequate reserves therefor
have been established on the books of such Loan Party or Subsidiary in
accordance with GAAP, and (ii) all such failures in the aggregate have no
Material Adverse Effect;
(d) Liens on assets (other than Stock or Stock Equivalents) incurred
or pledges and deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance, old-age pensions and other
social security benefits;
(e) Liens on assets (other than Stock or Stock Equivalents) securing
the performance of bids, tenders, leases, contracts (other than for the
repayment of borrowed money), statutory obligations, surety and appeal bonds and
other obligations of like nature, incurred as an incident to and in the ordinary
course of business, and judgment liens; provided, however, that all such Liens
(i) in the aggregate have no Material Adverse Effect and (ii) do not secure
directly or indirectly judgments in excess of $1,000,000 for all Loan Parties
and their Subsidiaries;
(f) Zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities incident
thereto which do not in the aggregate materially detract from the value or use
of the property or assets of any Loan Party or any of its Subsidiaries or
impair, in any material manner, the use of
166
such property for the purposes for which such property is held by such Loan
Party or any such Subsidiary;
(g) Liens in favor of landlords securing operating leases permitted
by Section 7.3;
(h) Liens existing on the Closing Date in the case of each Loan Party
and its Subsidiaries other than Fabral Holdings and its Subsidiaries, and on the
Effective Date in the case of Fabral Holdings and its Subsidiaries, in each case
to the extent disclosed on Schedule 7.1;
(i) Liens on assets of French Operating Co. or any of its
Subsidiaries to secure Capital Financing Indebtedness of French Operating Co. or
its Subsidiaries and Liens on assets of any Operating Company or any Operating
Company Subsidiary thereof to secure Capital Financing Indebtedness of such
Operating Company or such Operating Company Subsidiary, in each case to the
extent such Capital Financing Indebtedness is permitted by Section 7.2(a)(v);
provided, however, that (i) any such Lien is created solely for the purpose of
securing Indebtedness representing, or incurred to finance, refinance or refund,
the cost (including, without limitation, the cost of construction) of the
property subject thereto, (ii) the principal amount of the Indebtedness secured
by such Lien does not exceed 100% of such cost and (iii) such Lien does not
extend to or cover any other property other than such item of property and any
improvements on such item;
(j) Any Lien securing the renewal, extension or refunding of any
Indebtedness or other obligation secured by any Lien permitted by this Section
7.1 provided that such renewal, extension or refunding is otherwise permitted by
this Agreement and the amount of such Indebtedness or other obligation secured
by such Lien and the assets subject to such Lien are not increased;
(k) Any other Lien on assets of any of French Operating Co., any
Operating Company or any of their Subsidiaries (other than Liens on Stock and
Environmental Liens), provided that the Fair Market Value of all such assets
does not exceed $250,000 in the aggregate and no such Lien secures any
Indebtedness; and
(l) Any right of set-off granted by any of U.K. Operating Co., Ellbee
Ltd. or Coated Products U.K. to National Westminster Bank plc, and any Lien
created or
167
permitted or suffered to exist by any of such Loan Parties on cash or Cash
Equivalents held by National Westminster Bank plc, in each case to the extent
securing Permitted Secured U.K. Debt (as defined in clause (B) of the proviso
to Section 7.2(a)(xii), provided that no Default or Event of Default would
result therefrom.
7.2. Indebtedness. (a) No Loan Party shall create, incur, assume,
endorse, be or be become liable for, or suffer to exist, nor shall it permit any
of its Subsidiaries to create, incur, assume, endorse, be or become liable for,
or suffer to exist, any Indebtedness, directly or indirectly, except:
(i) Indebtedness and Contingent Obligations in respect of the
Obligations or evidenced by a Loan Document;
(ii) liabilities in respect of taxes, and current liabilities in
respect of assessments and governmental charges or levies incurred, or claims
for labor, materials, inventory, services, supplies and rentals incurred, or for
goods or services purchased, in the ordinary course of business materially
consistent with the past practice of such Loan Party and its Subsidiaries, and
Contingent Obligations in respect of indemnities under Contractual Obligations
or owing to officers and directors of any Loan Party or its Subsidiaries, in
each case to the extent not otherwise prohibited by the Loan Documents and not
resulting in a Default or an Event of Default;
(iii) Indebtedness of the Loan Parties consisting of Costs referred
to in Section 3.1(s)-1;
(iv) Indebtedness of French Operating Co. or a Subsidiary thereof,
any Operating Company or any Operating Company Subsidiary arising under any
performance bond reimbursement obligation entered into consistent with the past
practice of French Operating Co. or such Subsidiary thereof or of such Operating
Company or such Operating Company Subsidiary;
(v) Indebtedness of French Operating Co. or a Subsidiary thereof, any
Operating Company or any Operating Company Subsidiary under Capital Financing
Indebtedness (including any guaranty by any of the foregoing Loan Parties of any
Capital Financing Indebtedness of a Subsidiary of such Loan Party) in an
aggregate amount not exceeding $5,000,000 at any one time outstanding for French
Operating
168
Co. and its Subsidiaries, all Operating Companies and all Operating Company
Subsidiaries;
(vi) Obligations of the Loan Parties to pay purchase price
adjustments in accordance with the terms of the Fabral Purchase Agreement;
(vii) Indebtedness of any Loan Party or its Subsidiaries in respect
of any judgment, provided that the aggregate amount of all such Indebtedness of
the Loan Parties and their Subsidiaries does not exceed $2,000,000 and no such
judgment or judgments result in a Default or an Event of Default;
(viii) Indebtedness of the Loan Parties and their Subsidiaries solely
resulting from changes in GAAP or the application of current GAAP to the extent
not so applied on the date hereof;
(ix) in the case of Euramax, U.K. Holdings and Dutch Holdings, the
Senior Subordinated Notes and, in the case of U.S. Holdings, the subordinated
guaranty thereof pursuant to the Senior Subordinated Indenture;
(x) in the case of each of U.S. Holdings and Dutch Company, the
Indebtedness in respect of the Intercompany Notes issued by such Person;
(xi) Indebtedness of French Operating Co., any Subsidiary of French
Operating Co., any Operating Subsidiary or any Operating Company Subsidiary to
the extent such Indebtedness is existing on the date of this Agreement and the
nature thereof, the parties thereto, the amount thereof and the documents
therefor are specified on Schedule 7.2(a);
(xii) Indebtedness owing to other than a Loan Party by French
Operating Co., any Subsidiary thereof, any Operating Company or any Operating
Company Subsidiary not exceeding $5,000,000 in the aggregate at any time
outstanding for all such Persons incurred for the purpose of funding working
capital requirements of such Person or for general corporate purposes of such
Person, provided that (A) the amount thereof incurred by French Operating Co.
and its Subsidiaries shall not exceed in the aggregate $1,000,000 at any time
outstanding and (B) no Indebtedness permitted by this clause (xii) shall be
secured by a Lien on any property or assets of any Loan Party other than any
such Indebtedness owing to National Westminster Bank plc by U.K. Operating
169
Co., Ellbee Ltd. and/or Coated Products U.K. (including any guaranty by any
such Loan Party of any such Indebtedness owing to National Westminster Bank
plc by another such Loan Party) in an amount not exceeding $2,500,000 in the
aggregate at any such time outstanding ("Permitted Secured U.K. Debt")
secured by Liens specifically permitted by Section 7.1(l), provided that no
Default or Event of Default would result therefrom;
(xiii)(A) Indebtedness of an Operating Company or any Operating
Company Subsidiary owing to any Operating Company, any Operating Company
Subsidiary, French Operating Co. or any Subsidiary thereof; and (B) Indebtedness
of French Operating Co. or a Subsidiary thereof owing to any Operating Company
or any Operating Company Subsidiary in an aggregate principal amount not
exceeding, when added to the amount of Indebtedness incurred by French Operating
Co. and its Subsidiaries pursuant to clause (xii) above, $5,000,000 in the
aggregate at any time outstanding; and (C) Indebtedness of French Operating Co.
owing to any of its Subsidiaries or owing by any such Subsidiary to French
Operating Co.; provided, however, that all such Indebtedness owing to a Loan
Party is evidenced by promissory notes pledged pursuant to the applicable
Collateral Document;
(xiv) Indebtedness of the Loan Parties under Currency Contracts,
provided that the aggregate amount of such Indebtedness of all Loan Parties
shall not exceed $30,000,000 at any time; and
(xv) Permitted Existing Indebtedness.
(b) No Loan Party shall cancel, or permit any of its Subsidiaries to
cancel, any claim or Indebtedness owed to it except for adequate consideration
and in the ordinary course of business, it being understood that a Note
Reduction permitted pursuant to Section 7.8(a)(i) shall not be a violation of
this Section 7.2(b).
(c) Notwithstanding subsection (a) above, in the event that a
Deferred Payment L/C (as defined in Section 4.18(b)) is not issued, Laminated
Products may (but no other Loan Party shall) guaranty, on an unsecured basis,
the Laminated Products Deferred Payment, provided no Material Adverse Effect
could result therefrom.
7.3. Lease Obligations. (a) No Loan Party shall create or suffer
to exist, or permit any of its Subsidiaries
170
to create or suffer to exist, any obligations as lessee for the rental or
hire of real or personal property of any kind under other leases or
agreements to lease (other than Capitalized Leases) having an original term
of one year or more which would cause the direct or contingent liabilities of
all Loan Parties and their respective Subsidiaries, on a consolidated basis,
in respect of all such obligations to exceed $6,000,000 payable in any period
of 12 consecutive months.
(b) No Loan Party shall, nor shall it permit any of its Subsidiaries
to, become or remain liable as lessee or guarantor or other surety with respect
to any lease, whether an operating lease or a Capitalized Lease, of any property
(whether real or personal or mixed), whether now owned or hereafter acquired,
which (i) such Loan Party or any of its Subsidiaries has sold or transferred or
is to sell or transfer to any other Person, or (ii) such Loan Party or any of
its Subsidiaries intends to use for substantially the same purposes as any other
property which has been or is to be sold or transferred by that entity to any
other Person in connection with such lease.
7.4. Restricted Payments. No Loan Party shall nor shall it permit
any of its Subsidiaries to:
(a) declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account or in
respect of any of its Stock or Stock Equivalents except (i) dividends paid in
kind by Euramax on the Preference Shares; (ii) (A) cash dividends paid to U.S.
Operating Co. by any of its Subsidiaries and the distribution by Richmond
Company of all of its assets to U.S. Operating Co. in connection with the
liquidation of Richmond Company, (B) cash dividends paid to U.K. Operating Co.
by any of its Subsidiaries or by Coated Products U.S. and Laminated Products to
Building Products, (C) cash dividends paid to Dutch Operating Co. (or, after a
Permitted Merger of Dutch Operating Co. with and into Dutch Company, to Dutch
Company) by any of its Subsidiaries, or (D) cash dividends paid to French
Operating Co. by a Subsidiary thereof; (iii) the issuance of Qualifying Shares
by a Foreign Loan Party or Non-Domestic Subsidiary thereof or by French
Operating Co. or a Subsidiary thereof; (iv) cash interest payments on the
Intercompany Notes paid by U.S. Holdings to Euramax and by Dutch Company to
Dutch Holdings and cash dividends paid (A) by U.S. Operating Co. to U.S.
Holdings, (B) by U.K. Operating Co. to U.K. Company or,
171
after a Permitted U.K. Operating Co. Share Transfer, to U.K. Holdings, (C)
after both a Permitted U.K. Operating Co. Share Transfer and a Permitted
Ellbee Share Transfer, by Ellbee Ltd. to U.K. Holdings, (D) after both a
Permitted U.K. Operating Co. Share Transfer and a Permitted Coated Products
Share Transfer, by Coated Products U.K. to U.K. Holdings, (E) prior to a
Permitted U.K. Operating Co. Share Transfer, by U.K. Company to U.K.
Holdings, (F) by Dutch Operating Co. to Dutch Company or, from and after a
Permitted Merger of Dutch Operating Co. with and into Dutch Company, to Dutch
Holdings, (G) by Dutch Company to Dutch Holdings, (H) by French Operating Co.
to French Holdings or, after a Permitted Merger of French Operating Co. with
and into French Holdings, by the direct Subsidiaries of French Holdings to
French Holdings, (I) by French Holdings to Dutch Holdings, and (J) by each of
U.K. Holdings, French Holdings and Dutch Holdings to Euramax; provided,
however, that the proceeds of all such cash interest paid to Euramax and
Dutch Holdings, and all such cash dividends paid to Dutch Company prior to a
Permitted Merger of Dutch Operating Co. with and into Dutch Company or paid
to U.K. Company prior to a Permitted U.K. Operating Co. Share Transfer, or
paid to any of U.K. Holdings, French Holdings, U.S. Holdings or Euramax are
used solely (v) to pay any of the Obligations or Guarantied Obligations, or
(w) to pay taxes and other expenses incurred by such Foreign Holding Company,
French Holdings, U.S. Holdings or Euramax, as the case may be, or (x) by
Euramax to redeem or repurchase any Stock of Euramax owned by any Person who
is part of the management of any Loan Party upon such Person's termination,
death or permanent disability, provided that (1) the aggregate amount of such
redemptions and repurchases in any twelve month period shall not exceed
$1,500,000 and (2) the aggregate amount of such redemptions and repurchases
during the term of this Agreement shall not exceed $2,500,000 plus, in the
case of each of clause (1) and (2), the aggregate cash proceeds previously or
concurrently paid to Euramax during such period by any Person or Persons in
payment of the purchase price of Stock purchased by such Person or Persons
and not applied or required to be applied to any other payment, redemption or
repurchase, or (y) by Euramax, U.K. Holdings and Dutch Holdings to make
regularly scheduled interest payments to the holders of Senior Subordinated
Notes, provided such payments are not made in contravention of the
subordination provisions thereof or of the Senior Subordinated Indenture, or
(z) by U.S. Holdings and Dutch Company to make regularly scheduled interest
payments on
172
their respective Intercompany Notes; and (v) in a Permitted Merger or a
Permitted Share Transfer; or
(b) (i) purchase, redeem, prepay, defease or otherwise acquire for
value, or make any payment of principal of, or premium or interest on, or other
amount on account or in respect of, any Senior Subordinated Note, any
Intercompany Note or any other Indebtedness for borrowed money, now or hereafter
outstanding, except (A) the Loans, (B) required payments by an Operating Company
or Operating Company Subsidiary or by French Operating Co. or a Subsidiary
thereof on Indebtedness specifically permitted by Section 7.2(a) to be incurred
by such Operating Company or such Operating Company Subsidiary or by French
Operating Co. or a Subsidiary thereof and (C) regularly scheduled interest
payments (x) made by Euramax, U.K. Holdings and Dutch Holdings on the Senior
Subordinated Notes, provided such payments are not made in contravention of the
subordination provisions thereof or of the Senior Subordinated Indenture, and
(y) made by U.S. Holdings and Dutch Company on their respective Intercompany
Notes; (ii) pay any fee to any holder of any Senior Subordinated Note for any
waiver or amendment or for any other reason with respect to the Senior
Subordinated Notes or the Senior Subordinated Indenture; or (iii) make any
deposit in respect of any of the foregoing or give notice to any Person
thereunder or under any Senior Subordinated Debt Document of its intention to
effect any of the foregoing unless the same is revoked prior to its becoming
irrevocable pursuant to the terms thereof.
7.5. Mergers, Stock Issuances, Asset Sales, Etc. (a) No Loan Party
shall sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its assets or properties other than a Permitted Merger of Coated Products
U.K. and Ellbee Ltd., and no Loan Party shall, nor shall it permit any of its
Subsidiaries to, (i) merge with any Person other than in a Permitted Merger, a
Permitted Share Transfer, or in a merger of Fabral, Inc. with and into Building
Products, provided that the Agent and the Majority Lenders have consented to the
terms and conditions thereof and all documents and other actions necessary or,
in the opinion of the Agent, desirable to continue the Lien of the Agent in all
Collateral covered by any Collateral Document to which Fabral, Inc. is a party
shall have executed and delivered or taken, as the case may be (such merger,
subject to such conditions, being a "Fabral Merger") or (ii) consolidate with
any Person.
173
(b) No Loan Party shall (i) issue or transfer, or permit any of its
Subsidiaries to issue or transfer, any Stock or Stock Equivalents other than any
such issuance or transfer (A) by Euramax of any of its Stock or Stock
Equivalents so long as no Change of Control shall result therefrom, (B) by a
wholly owned Subsidiary of such Loan Party to such Loan Party, (C) in the case
of any Non-Domestic Subsidiary of any Loan Party, of Qualifying Shares and (D)
in a Permitted Merger or a Permitted Share Transfer; or (ii) effect or suffer to
occur or exist any Disposition of any Stock or Stock Equivalents of any of its
Subsidiaries unless such Disposition is permitted by subsection (c) below.
(c) No Loan Party shall, nor shall it permit any of its Subsidiaries
to, effect, enter into, consummate or suffer to exist any Asset Sale except (i)
any Asset Sale consisting of the taking of property by condemnation or eminent
domain or the loss or destruction of or damage to any asset or property unless
such asset or property has a Fair Market Value in excess of $2,500,000, and (ii)
any Asset Sale, excluding any Asset Sale prohibited by Section 7.5(a) or Section
7.5(b), provided that, in any event, (A) in the case of any Asset Sale involving
assets or property having a Fair Market Value in excess of $2,500,000 or
involving assets or property having a Fair Market Value which, when the Fair
Market Value thereof is added to the Fair Market Value of all assets and
properties previously subject of an Asset Sale consummated on or after the
Effective Date, exceeds $7,500,000, the Majority Lenders and the Agent shall
have consented in writing to such Asset Sale and to the terms, conditions and
documentation for such Asset Sale, (B) such Asset Sale is for the Fair Market
Value thereof and the consideration for such Asset Sale consists solely of cash,
payable upon such sale, (C) no Default or Event of Default is continuing or
would result therefrom and all Asset Sale Proceeds of such Asset Sale, if
received in cash, are applied to the prepayment of the Loans pursuant to Section
2.7 except as otherwise specified therein and, if received in other than cash,
are pledged to the Agent pursuant to the Collateral Documents (it being
understood that unless the Majority Lenders and the Agent otherwise agree, no
Asset Sale consideration shall consist of other than cash), and (D) in the case
of any Disposition of any Stock or Stock Equivalents of any Subsidiary, all of
the Stock and Stock Equivalents of such Subsidiary is transferred.
174
(d) Notwithstanding the foregoing, no Loan Party shall sell or
otherwise dispose of, or factor at maturity or collection, or permit any of its
Subsidiaries to sell or otherwise dispose of, or factor at maturity or
collection, any accounts receivables other than in connection with the Stock of
a Subsidiary in an Asset Sale permitted by Section 7.5(c).
7.6. Investments. No Loan Party shall, directly or indirectly, make
or maintain, or permit any of its Subsidiaries to make or maintain, any
Investment, except:
(a) Investments consisting of the Stock of Subsidiaries listed
on Schedule 4.8 or acquired in (i) the Fabral Merger, or (ii) a Permitted
Merger, or (iii) a Permitted Share Transfer;
(b) Investments by an Operating Company or an Operating Company
Subsidiary or by French Operating Co. or a Subsidiary thereof in accounts,
contract rights and chattel paper (each as defined in the Uniform
Commercial Code), notes receivable and similar items arising or acquired in
the ordinary course of business consistent with the past practice of such
Operating Company, such Operating Company Subsidiary or French Operating
Co. or such Subsidiary thereof;
(c) loans or advances to employees of an Operating Company or an
Operating Company Subsidiary or of French Operating Co. or a Subsidiary
thereof, which loans and advances shall not exceed $1,000,000 outstanding
at any time in the aggregate for all Operating Companies and Operating
Company Subsidiaries;
(d) Investments by an Operating Company or an Operating Company
Subsidiary or by French Operating Co. or a Subsidiary thereof in Cash
Equivalents;
(e) Investments by French Operating Co. or a Subsidiary thereof
or by an Operating Company or an Operating Company Subsidiary in Currency
Contracts permitted by Section 7.2(a)(xiv), and interest rate cap, collar
or floor protection agreements;
(f) Investments by U.S. Operating Co. or an Operating Company
Subsidiary thereof consisting of cash collateral for the payment of
workers' compensation in
175
an amount not to exceed $1,000,000 in the aggregate for U.S. Operating Co.
and its Operating Company Subsidiaries;
(g) Investments consisting of loans permitted by clauses (x) and
(xiii) of Section 7.2(a);
(h) Investments in property, plant and equipment to the extent
not otherwise prohibited by the terms of any Loan Document and subject to
the provisions of Sections 6.13 and 6.14 and the terms of the Collateral
Documents;
(i) Investments constituting the ASP Note held by U.S. Operating
Co. and other Investments constituting Asset Sale Proceeds to the extent
the same are permitted by Section 7.5(c), provided that, each day on which
any Loan Party or its Subsidiaries received any payment thereunder the
amount thereof, if received in cash, is applied to the Loans in accordance
with Section 2.7(d) and, if received in other than cash, is pledged to the
Agent under the applicable Collateral Document; and
(j) Investments in Stock or Stock Equivalents of any Person or
consisting of the acquisition of assets of any Person, provided that (i) no
Default or Event of Default shall have occurred and be continuing at the
time of or as a result of any such Investment, (ii) the aggregate amount of
all such Investments does not exceed $5,000,000 and (iii) no such
Investment shall be made directly or indirectly in any "margin stock" (as
defined in Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System).
7.7. Change in Nature of Business or in Capital Structure. (a) No
Loan Party shall make, nor shall it permit any of its Subsidiaries to make, any
material change in the nature or conduct of its business as carried on at the
Closing Date in the case of each Loan Party and its Subsidiaries other than
Fabral Holdings and its Subsidiaries, and on the Effective Date in the case of
Fabral Holdings and its Subsidiaries, except in connection with a Permitted
Merger, a Permitted Share Transfer or the Fabral Merger, logical extensions of
its business or if the core business of such Loan Party does not materially
change from that on the Closing Date in the case of each Loan Party
176
and its Subsidiaries other than Fabral Holdings and its Subsidiaries, and
from that on the Effective Date in the case of Fabral Holdings and its
Subsidiaries.
(b) No Loan Party shall make, nor shall it permit any of its
Subsidiaries to make, any change in its capital structure (including, without
limitation, in the terms of its outstanding Stock) or amend its certificate of
incorporation or by-laws other than amendments in connection with the Fabral
Merger, a Permitted Merger, the French Note Conversion or a Permitted Share
Transfer or which in the aggregate have no Material Adverse Effect.
7.8. Modification of Related Documents and Material Agreements. No
Loan Party shall, nor shall it permit any of its Subsidiaries to, (a) alter,
rescind, terminate, amend, supplement, waive or otherwise modify any provision
of or permit any breach or default to exist under any Related Document to which
it is a party or take or fail to take any action thereunder, except that (i) the
Intercompany Notes issued by U.S. Holdings may be amended to reduce the
aggregate principal amount thereof by the amount, if any, of any purchase price
allocation revision or adjustment pursuant to Section 8.8 of the Purchase
Agreement (such reduction being a "Note Reduction"), provided that (A) the
portion of the purchase price of the Purchase allocable to the Dutch Entities
Purchase and/or the U.K. Entities Purchase is increased, in the aggregate, by
the aggregate principal amount of such reduction in such Intercompany Notes (it
being understood that no payments on any Intercompany Notes shall be made) and
(B) Euramax shall have complied with Section 3 and 7 of the Euramax Stock (U.S.)
and Debt Pledge Agreement, and (ii) any Related Document may be amended to the
extent such amendment relates solely to the provisions therein related to the
equity of Euramax and provided that such amendment does not result in a Default
or an Event of Default and is not otherwise prohibited by the Loan Documents; or
(b) terminate or waive any of their respective rights under, or fail to comply
in all material respects with, any other material Contractual Obligations,
except that (i) with respect to any such failure to comply with any Contractual
Obligation other than any of the Related Documents, the Loan Parties shall not
be deemed in default of this Section 7.8 if all such failures in the aggregate
would have no Material Adverse Effect, and (ii) in the event of any breach or
event of default by a Person other than the Loan Parties or any of their
Subsidiaries, the Loan Parties shall promptly notify the Agent of any such
177
breach or event of default and take all such action as may be reasonably
necessary in order to endeavor to avoid having such breach or event of default
have a Material Adverse Effect.
7.9. Accounting Changes. The Loan Parties shall not make, nor permit
any of their Subsidiaries to make, any change in accounting treatment and
reporting practices or tax reporting treatment, except as required by GAAP or
law and disclosed to the Lenders and the Agent.
7.10. Transactions with Affiliates. No Loan Party shall, nor shall
it permit any of its Subsidiaries to, do any of the following:
(i) make any Investment in an Affiliate of any Loan Party other
than as permitted by Section 7.6(a), (c) or (g);
(ii) transfer, sell, lease, assign or otherwise dispose of
any asset to any Affiliate of any Loan Party, including any Subsidiary of
any Loan Party other than in a Permitted Merger or a Permitted Share
Transfer;
(iii) merge into or consolidate with or purchase or acquire
assets from any Affiliate of any Loan Party or of any Subsidiary of any
Loan Party other than in a Permitted Merger, a Permitted Share Transfer or
the Fabral Merger;
(iv) repay any Indebtedness to any Affiliate of any Loan
Party except to the extent specifically permitted by Section 7.4(b)(i) and
Indebtedness permitted by Section 7.2(a)(xiii); or
(v) enter into any other transaction directly or indirectly with
or for the benefit of any Affiliate of any Loan Party or any of its
Subsidiaries (including, without limitation, employment contracts or
contracts involving the payment of management or consulting fees,
guaranties and assumptions of obligations of any such Affiliate, but
excluding any repayment to an Affiliate set forth on Schedule 3.1(s)-1)
except for (A) transactions in the ordinary course of business on a basis
no less favorable to such Loan Party or such Subsidiary as would be
obtained in a comparable arm's length transaction with a Person not
178
an Affiliate, as determined by the Board of Directors of such Loan Party or
such Subsidiary acting in good faith, (B) salaries and other employee
compensation and benefits to officers or directors of any Loan Party or any
of its Subsidiaries commensurate with compensation and benefit levels of
companies engaged in a similar business or in similar circumstances, and
(C) the execution and delivery of the Related Documents and the
consummation of the transactions contemplated thereby.
7.11. Adverse or Speculative Transactions. The Loan Parties shall
not, nor shall they permit any of their Subsidiaries to, (a) enter into or be a
party to any transaction or Contractual Obligation the performance of which in
the future has any reasonable likelihood of resulting in a breach of any
representation or covenant contained herein or in any other Loan Document or
give rise to a Default or Event of Default; or (b) engage in any speculative
transaction or in any transaction involving commodity options or futures
contracts except for Currency Contracts and interest rate protection agreements
permitted by Section 7.6(e).
7.12. Environmental Matters. No Loan Party shall, nor shall it
permit any of its Subsidiaries or, to the extent practicable, any other Person
to, dispose of any Hazardous Material by placing it in or on the ground or
waters of any property owned, operated or leased by such Loan Party or any of
its Subsidiaries, except to the extent that such disposal is permitted pursuant
to Environmental Permits and where the result of all such disposals could not
reasonably be expected to subject the Loan Parties and their Subsidiaries to
Environmental Liabilities and Costs of in excess of $2,500,000 in the aggregate
in any Fiscal Year, and it being understood that in any event no Loan Party or
any of its Subsidiaries shall obtain a RCRA TSDF permit without the prior
written approval of the Agent.
7.13. Additional Richmond Company, Euramax, French Holdings and
Foreign Holding Company Provisions. Notwithstanding anything to the contrary in
this Agreement or in any other Loan Document, (a) Euramax shall not own any
assets other than the Intercompany Notes issued by U.S. Holdings and the Stock
of U.K. Holdings, Dutch Holdings, U.S. Holdings and French Holdings; (b) U.K.
Holdings shall not own any assets other than the Stock of U.K. Company or, after
a Permitted U.K. Operating Co. Share Transfer, U.K. Operating Co., and, after
either a Permitted Ellbee Share
179
Transfer or a Permitted Coated Products Share Transfer, Ellbee Ltd. or Coated
Products U.K., respectively; (c) Dutch Holdings shall not own any assets
other than the Stock of Dutch Company, Stock of French Holdings and the
Intercompany Note issued by Dutch Company; (d) U.K. Company shall not own any
assets other than the Stock of U.K. Operating Co. and, after either a
Permitted Ellbee Share Transfer or a Permitted Coated Products Share Transfer
but prior to a Permitted U.K. Operating Co. Share Transfer, Ellbee Ltd. or
Coated Products U.K., respectively; (e) unless and until the consummation of
a Permitted Merger of Dutch Operating Co. with and into Dutch Company, Dutch
Company shall not own any assets other than the Stock of Dutch Operating Co.;
(f) U.S. Holdings shall not own any assets other than the Stock of U.S.
Operating Co.; (g) prior to a Permitted Merger of French Operating Co. with
and into French Holdings, French Holdings shall not own any assets other than
the Stock of French Operating Co.; (h) from and after a Permitted U.K.
Operating Co. Share Transfer, U.K. Company shall either (i) be liquidated or
(ii) not own any assets or have or incur any liabilities; and (i) Richmond
Company shall not acquire any assets or incur any further liabilities.
ARTICLE VIII
EVENTS OF DEFAULT AND CASH COLLATERAL
8.1. Events of Default. Each of the following events shall be an
Event of Default:
(a) Any Loan Party shall fail to pay any principal (including,
without limitation, mandatory prepayments of principal) of, or interest on, any
Loan, any fee, any other amount due hereunder or under the other Loan Documents
or other of the Obligations when the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by any Loan
Party, any Related Entity or any Affiliate of any Loan Party or any Related
Entity in any Loan Document or by any Loan Party, any Related Entity or any
Affiliate of any Loan Party or any Related Entity (or any of their respective
officers) in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
180
(c) Any Loan Party shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 3.1 or in Articles V, VI or VII or in
any Collateral Document or any Guaranty (subject to any lapse of time or notice
requirement set forth in such Collateral Document or Guaranty), or (ii) any
other term, covenant or agreement contained in this Agreement or in any other
Loan Document if such failure under this clause (ii) shall remain unremedied for
five days after the earlier of the date on which (A) a Responsible Officer of
any Loan Party becomes aware of such failure or (B) written notice thereof shall
have been given to any Loan Party by the Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Indebtedness of such Loan Party or
Subsidiary having a principal amount of $2,000,000 or more (excluding
Indebtedness evidenced by the Notes), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Indebtedness, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness; or any such Indebtedness shall become or be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment not otherwise prohibited pursuant to
this Agreement), or any Loan Party or any of its Subsidiaries shall be required
to repurchase or offer to repurchase such Indebtedness, prior to the stated
maturity thereof; or
(e) Any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors, or any proceeding shall be instituted by or against any Loan Party or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a custodian, receiver,
trustee-administrator or other similar official for it or for any substantial
part of its property and, in the case of any such proceedings instituted
against, but not by, any Loan Party or its Subsidiaries (other than, in
181
relation to administration proceedings, Euramax, U.K. Holdings, U.K.
Operating Co. or any Subsidiary of any such Loan Party organized under the
laws of England and Wales), either such proceedings shall remain undismissed
or unstayed for a period of 30 days or any of the actions sought in such
proceedings shall occur; or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above in
this subsection (e) (each event referred to in this subsection (e) being a
"Bankruptcy Event"); or any Loan Party shall cease to be Solvent; or
(f) Any judgment or order for the payment of money in excess of
$2,000,000 shall be rendered against any Loan Party or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order, or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) An ERISA Event shall occur which, in the reasonable determination
of the Majority Lenders or the Agent, has a reasonable possibility of a
liability, deficiency or waiver request of Euramax or any ERISA Affiliate,
whether or not assessed, exceeding $2,000,000; or
(h) Any Loan Party or any of its Subsidiaries shall have entered into
any consent or settlement decree or agreement or similar arrangement with a
Governmental Authority or any judgment, order, decree or similar action shall
have been entered against any Loan Party or any of its Subsidiaries, in either
case based on or arising from the violation of or pursuant to any Environmental
Law, or the generation, storage, transportation, treatment, disposal or Release
of any Hazardous Material and, in connection with all the foregoing, any Loan
Party or its Subsidiaries are likely to incur Environmental Liabilities and
Costs in excess of $2,500,000 individually or $5,000,000 in the aggregate; or
(i) Any provision of any Collateral Document or any Guaranty after
delivery thereof under Section 3.1 shall for any reason cease to be valid and
binding on any Loan Party thereto, or any Loan Party shall so state in writing;
or any Collateral Document after delivery thereof pursuant to Section 3.1 shall,
for any reason, cease to create a valid Lien on any of the Collateral purported
to be covered
182
thereby, or such Lien shall cease to be a perfected and first priority Lien,
or any Loan Party shall so state in writing; or
(j) Any Loan Party, any Related Entity, CVC U.S., CVC Europe or any
Subsidiary or Affiliate of any thereof shall (i) purchase, redeem, pay, prepay,
defease or otherwise acquire for value, or pay any principal of, or premium on,
or other amount of, any Senior Subordinated Note, or pay any interest thereunder
other than regularly scheduled interest payments thereon made by Euramax, U.K.
Holdings and Dutch Holdings to the extent such interest payments are not made in
contravention of the subordination provisions set forth in the Senior
Subordinated Indenture, or (ii) pay any fee to any holder of any Senior
Subordinated Note for any waiver or amendment or for any other reason with
respect to the Senior Subordinated Notes or the Senior Subordinated Indenture,
or (iii) make any payment of principal of or premium or interest on any
Intercompany Note other than regularly scheduled interest payments made to
Euramax by U.S. Holdings on the Intercompany Notes issued by it and made to
Dutch Holdings by each of Dutch Company and French Holdings on the Intercompany
Notes issued by it, or (iv) make any deposit in respect of any of the foregoing
or give notice to any Person thereunder or under any Senior Subordinated Debt
Document of its intention to effect any of the foregoing unless such notice is
revoked before the same shall become irrevocable pursuant to the terms of such
Senior Subordinated Debt Document; or
(k) There shall occur any default or event which but for the
requirement that notice be given or time elapse or both would be a default under
any Senior Subordinated Debt Document; or
(l) (i) Euramax shall fail to own of record and beneficially all of
the outstanding Stock and Stock Equivalents of (A) U.K. Holdings except Stock
and Stock Equivalents owned in the name of the U.K. Trustee or its nominee, or
(B) Dutch Holdings in each case, other than Qualifying Shares; or (ii) U.K.
Holdings shall fail to own of record and beneficially (A) all of the outstanding
Stock and Stock Equivalents of U.K. Company, or (B) after a Permitted U.K.
Operating Co. Share Transfer, all of the outstanding Stock and Stock Equivalents
of U.K. Operating Co., or (C) after the consummation of both a Permitted U.K.
Operating Co. Share Transfer and a Permitted Ellbee Share Transfer, all of the
outstanding Stock and Stock Equivalents
183
of Ellbee Ltd. (or, if a Permitted Merger of Ellbee Ltd. and Coated Products
U.K. has been effected, the Consolidated Entity (as defined in the definition
of Permitted Merger)), or (D) after the consummation of both a Permitted U.K.
Operating Co. Share Transfer and a Permitted Coated Products Share Transfer,
all of the outstanding Stock and Stock Equivalents of Coated Products U.K.
(or, if a Permitted Merger of Ellbee Ltd. and Coated Products U.K. has been
effected, the Consolidated Entity), except, in each case, Stock and Stock
Equivalents owned in the name of the U.K. Trustee or its nominee and
Qualifying Shares; or (iii) U.K. Company shall fail to own of record and
beneficially (A) all of the outstanding Stock and Stock Equivalents of U.K.
Operating Co., or (B) after a Permitted Ellbee Share Transfer or a Permitted
Coated Products Share Transfer that is consummated prior to a Permitted U.K.
Operating Co. Share Transfer, Ellbee Ltd. and Coated Products U.K.,
respectively, except in each case other than Qualifying Shares; or (iv) Dutch
Holdings shall fail to own of record and beneficially all of the outstanding
Stock and Stock Equivalents of Dutch Company Stock and Stock Equivalents
owned in the name of the U.K. Trustee or its nominee and Qualifying Shares
(including after a Permitted Merger of Dutch Operating Co. with and into
Dutch Company); or (v) Dutch Company shall fail to own of record and
beneficially (A) all of the outstanding Stock and Stock Equivalents of Dutch
Operating Co., or (B) after a Permitted Merger of Dutch Operating Co. with
and into Dutch Company (but prior to a Permitted Merger of Coated Products,
B.V.), all outstanding Stock and Stock Equivalents of Coated Products, B.V.,
in each case other than Qualifying Shares; or (vi) Euramax shall fail to own
of record and beneficially all of the outstanding Stock and Stock Equivalents
of U.S. Holdings; or (vii) U.S. Holdings shall fail to own of record and
beneficially all of the outstanding Stock and Stock Equivalents of U.S.
Operating Co.; or (viii) French Holdings shall fail to own of record and
beneficially all of the outstanding Stock and Stock Equivalents of French
Operating Co. (or, after a Permitted Merger of French Operating Co. with and
into French Holdings, each direct Subsidiary of French Operating Co. prior
thereto); or (ix) Euramax and Dutch Holdings shall fail to own of record and
beneficially all outstanding Stock and Stock Equivalents of French Holdings
(including after a Permitted Merger of French Operating Co. with and into
French Holdings) other than Qualifying Shares; in each case referred to in
this subsection (l), free and clear of all Liens except the Lien
184
in favor of the Agent or the U.K. Trustee for the ratable benefit of the
Lenders; or
(m) There shall occur any Change of Control; or
(n) Any Governmental Authority or any Person acting or purporting to
act under or on behalf of any Governmental Authority shall have taken any action
to condemn, seize, appropriate, compulsorily acquire, expropriate, nationalize,
or assume custody or control of, all or any substantial part of the Stock or
Stock Equivalents of, or any property or assets owned by, any Loan Party.
8.2. Remedies. If there shall occur and be continuing any Event of
Default, the Agent (i) shall at the request, or may with the consent, of the
Majority Lenders by notice to the Borrowers, declare the obligation of each
Lender to make Loans and the Issuer to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders by notice to the Borrowers,
declare the Loans, all interest thereon and all other amounts and Obligations
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts and Obligations shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each Loan Party;
provided, however, that upon the occurrence of the Event of Default specified in
subparagraph (e) or (j) above, (A) the obligation of each Lender to make Loans
and the Issuer to issue Letters of Credit shall automatically be terminated and
(B) the Loans, all such interest and all such amounts and Obligations shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each Loan Party. In addition to the remedies set forth above, the Agent may
exercise any remedies provided for by the Collateral Documents in accordance
with the terms thereof or any other remedies provided by applicable law.
8.3. Implementation of Reallocation. On the first date on which any
Bankruptcy Event shall occur in respect of any Loan Party, (i) the Commitments
and the obligation of the Issuer to issue Letters of Credit shall automatically
and without further act be terminated as provided in Section 8.2 and (ii) the
Lenders shall
185
automatically and without further act be deemed to have purchased
participations in the Loans such that as a result of such deemed purchases,
such Lender shall hold an interest in every one of the Loans (including the
principal, interest and fee obligations of each Borrower in respect of each
such Loan), whether or not such Lender shall previously have participated
therein, equal to such Lender's Reallocation Percentage thereof. Each
Lender, each Person acquiring a participation from any Lender as contemplated
by Section 10.7, and each Borrower and each other Loan Party hereby consents
and agrees to the Reallocation Exchange.
8.4. Actions in Respect of Letters of Credit. (a) On the Revolving
Credit Termination Date, each Operating Company shall pay to the Agent in
immediately available funds at the Agent's Payment Office, for deposit in a
special non-interest-bearing cash collateral account (the "L/C Cash Collateral
Account") to be maintained with and in the name of the Agent on behalf of the
Secured Parties at such place as shall be designated by the Agent, an amount
equal to all outstanding Letter of Credit Obligations of such Operating Company.
(b) Each Operating Company hereby pledges, and grants to the Agent a
Lien on all of its right, title and interest in and to all funds held in the L/C
Cash Collateral Account from time to time, and all proceeds thereof, as security
for the payment of all amounts due and to become due to the Lenders and Issuers
under the Loan Documents.
(c) The Agent may, from time to time after the occurrence of any
Event of Default, and may at any time after funds are deposited in the L/C Cash
Collateral Account pursuant to Section 2.7, apply funds then held in the L/C
Cash Collateral Account to the payment of any amounts, in such order as the
Agent may elect, as shall have become or shall become due and payable to the
Issuers or Lenders in respect of the Letter of Credit Obligations.
(d) No Operating Company or any Person claiming on behalf of or
through any Operating Company shall have any right to withdraw any of the funds
held in the L/C Cash Collateral Account.
(e) Each Operating Company agrees that it will not (i) sell or
otherwise dispose of any interest in the L/C Cash Collateral Account or any
funds held therein or (ii) create or permit to exist any Lien upon or with
respect
186
to the L/C Cash Collateral Account or any funds held therein, except as
provided in or contemplated by this Agreement or the Collateral Documents.
(f) The Agent may also exercise, in its sole discretion, in respect
of the L/C Cash Collateral Account, in addition to the other rights and remedies
provided for herein or otherwise available to it, all the rights and remedies of
a secured party upon default under the Uniform Commercial Code in effect in the
State of New York at that time, and the Agent may, without notice except as
specified below, sell the L/C Cash Collateral Account or any part thereof in one
or more sales, at public or private sale, at any of the Agent's offices or
elsewhere, for cash, or credit or for future delivery, and upon such other terms
as the Agent may deem commercially reasonable. Each Operating Company agrees
that, to the extent notice of sale shall be required by law, at least ten days'
notice to such Operating Company of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of the L/C Cash
Collateral Account, regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(g) Any cash held in the L/C Cash Collateral Account, and all cash
proceeds received by the Agent in respect of any sale of, collection from or
other realization upon all or any part of the L/C Cash Collateral Account, may,
in the discretion of the Agent, then or at any time thereafter be applied (after
all payments provided for in Section 8.4(c), the expiration of all outstanding
Letters of Credit and the payment of any amounts payable pursuant to Section
10.4) in whole or in part by the Agent against all or any part of the other
Obligations in such order as the Agent shall elect, provided that cash deposited
by Dutch Operating Co. or U.K. Operating Co. shall only be applied to their
respective Guarantied Obligations or to the Dutch Operating Co. Obligations or
U.K. Operating Co. Obligations, respectively. Any surplus of such cash or cash
proceeds held by the Agent and remaining after the indefeasible cash payment in
full of all of the Obligations shall be paid over to the applicable Operating
Company or to whomsoever may be lawfully entitled to receive such surplus.
187
ARTICLE IX
THE AGENT
9.1. Authorization and Action. (a) Each Lender and the Issuer
hereby appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Without
limitation of the foregoing, each Lender and the Issuer hereby authorizes the
Agent (i) to execute and deliver, and to perform its obligations under, each
of the Loan Documents to which the Agent is or is to be a party, including
without limitation the deed of novation referred to in clause (c)(ii)(A) of
the definition of Permitted Merger and the U.K. Deed of Novation referred to
in clause (c) of the definition of Section 155 U.K. Operation Co. Conditions,
and (ii) to exercise all rights, powers and remedies that the Agent may have
under such Loan Documents.
(b) As to any matters not expressly provided for by this Agreement
and the other Loan Documents (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Majority Lenders, and such instructions
shall be binding upon all Lenders, the Issuer, the Agent and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action which the Agent in good faith believes exposes it to personal
liability or is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender and the Issuer prompt notice of each notice
given to it by any Loan Party pursuant to the terms of this Agreement or the
other Loan Documents.
9.2. Agent's Reliance, Etc. Neither the Agent, nor any of its
Affiliates or any of the respective directors, officers, agents or employees
of the Agent or any such Affiliate shall be liable for any action taken or
omitted to be taken by it, him, her or them under or in connection with this
Agreement or the other Loan Documents, except for its, his, her or their own
gross negligence or wilful misconduct. Without limitation of the generality
of the foregoing, (a) the Agent (i) may treat the payee of any
188
Note as the holder thereof until such note has been assigned in accordance
with Section 10.7; (ii) may rely on the Register to the extent set forth in
Section 10.7(c); and (iii) may consult with legal counsel (including, without
limitation, counsel to any Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; and (b) the Agent (i) makes no warranty or
representation to any Lender and shall not be responsible to any Lender or
the Issuer for any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents; (ii) shall
have no duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any of the
other Loan Documents on the part of any Loan Party or to inspect the property
(including, without limitation, the books and records) of any Loan Party;
(iii) shall not be responsible to any Lender or the Issuer for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; and (iv) shall
not incur any liability under or in respect of this Agreement or any of the
other Loan Documents by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable, telex or facsimile
transmission) believed by it to be genuine and signed or sent by the proper
party or parties.
9.3. The Agent and its Affiliates. With respect to its
Commitments, the Loans made by it, each Note issued to it and its other
agreements hereunder, Paribas, shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it
were not the Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Paribas in its individual capacity.
Paribas and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business
with, any Loan Party or any of its Subsidiaries and any Person who may do
business with or own securities of any Loan Party or any of its Subsidiaries,
all as if Paribas was not the Agent, and without any duty to account therefor
to the Lenders.
9.4. Lender Credit Decision. Each Lender and the Issuer,
acknowledges that it has, independently and without
189
reliance upon the Agent, any other Lender or the Issuer, and based on the
financial statements referred to in Article IV and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and the Issuer also
acknowledges that it will, independently and without reliance upon the Agent,
any Lender or the Issuer 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 Agreement and other Loan Documents.
9.5. Indemnification. The Lenders and the Issuer agree to
indemnify each Indemnitee (to the extent not reimbursed by the Borrowers or
other Loan Parties), ratably according to the respective amounts of the
aggregate of their outstanding Loans and unused Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements (including, without
limitation, fees and disbursements of legal counsel) of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against, such
Indemnitee in any way relating to or arising out of this Agreement or the
other Loan Documents or any action taken or omitted by such Indemnitee under
this Agreement or the other Loan Documents; provided, however, that neither
the Issuer nor any Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Indemnitee's
gross negligence or wilful misconduct. Without limitation of the foregoing,
each Lender and the Issuer agrees to reimburse each Indemnitee promptly upon
demand for its ratable share of any out-of-pocket expenses (including,
without limitation, fees and disbursements of legal counsel) incurred by such
Indemnitee in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of its rights or responsibilities under, this Agreement or the other Loan
Documents, to the extent that such Indemnitee is not reimbursed for such
expenses by any Loan Party.
9.6. Successor Agents. The Agent may resign at any time by giving
written notice thereof to the Lenders and Euramax. Upon any such resignation
by the Agent, the Majority Lenders shall have the right to appoint a successor
190
Agent, subject to Euramax's approval of such successor, which approval shall
not be unreasonably withheld. If no successor Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Lenders and the Issuer, appoint
a successor Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000, and which successor shall be
subject to Euramax's approval, which approval shall not be unreasonably
withheld. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Agent's resignation hereunder as Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement and the other Loan
Documents.
9.7 U.K. Documents. The provisions of this Article IX shall apply,
mutatis mutandis, to the appointment of the U.K. Trustee in respect of the
U.K. Collateral Documents, the Euramax Stock (U.K.) Pledge Agreement, the
Euramax Guaranty and the U.K. Guaranties as if references to the "Agent" were
to the U.K. Trustee. Each of the parties to this Agreement agrees to the
appointment of the U.K. Trustee in accordance with the U.K. Trust Deed, the
U.K. Collateral Documents, the Euramax Stock (U.K.) Pledge Agreement, the
Euramax Guaranty and the U.K. Guaranties and to the terms and conditions of
all such Loan Documents.
ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be in writing and signed by
the Majority Lenders and the Agent, and then any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in
191
writing and signed by all the Lenders, do any of the following: (i) waive
any of the conditions specified in Article III except as otherwise provided
therein; (ii) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations; (iii) reduce the principal of, or interest on,
the Loans or any fees or other amounts payable hereunder or the Letter of
Credit Obligations; (iv) postpone any final maturity date fixed for any
payment of principal of, or interest on, the Loans or any fees or the Letter
of Credit Obligations or other amounts payable hereunder; (v) change the
percentage of the Revolving Credit Commitments or the Term Loan Commitments,
the aggregate unpaid principal amount of the Loans or the aggregate amount of
the Letter of Credit Obligations, or the number of Lenders which shall be
required for the Lenders or any of them to take any action hereunder; (vi)
release any Collateral or any Loan Party except as shall otherwise be
provided in Section 7.5 or in the Collateral Documents; or (vii) amend this
Section 10.1; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or the other Loan Documents; and provided, further, that
no amendment, waiver or consent shall, unless in writing and signed by the
Swing Loan Lender in addition to the Lenders required above to take such
action, affect the rights or obligations of the Swing Loan Lender under this
Agreement or any other Loan Document; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Issuer in addition to the Lenders required above to take such action, affect
the rights or obligations of the Issuer under this Agreement or any other
Loan Document.
10.2. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including, without limitation, telex
or telecopy communication) and mailed, telecopied, or delivered by hand, by
Federal Express or by other nationally recognized courier,
(i) if to any Loan Party, at its address specified in Schedule IV or
such other address as shall be designated by such Loan Party in a written notice
to each other party;
(ii) if to any Lender, at its Domestic Lending Office specified
opposite its name on Schedule III or such
192
other address as shall be designated by such Lender in a written notice to
the Agent, the Issuer and each Loan Party;
(iii) if to the Issuer, at its address specified opposite its name
or Schedule III or at such other address as shall be designated by Issuer in
a written notice to the Loan Parties and the Agent; and
(iv) if to the Agent, at its address at The Equitable Tower, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (A) in the case of any Notice of
Borrowing, Notice of Continuation or Conversion or IP Notice, to the
attention of Xxxx Xxxxxxxx (telecopy number: 000-000-0000) (telephone
number: 000-000-0000); (B) in the case of all reports, certificates and other
documents required to be furnished to the Agent pursuant to Section 6.11, (x)
to the attention of Xxxxxxx Xxxxxxx (telecopy number: 000-000-0000)
(telephone number: 000-000-0000) in a sufficient number of originals of each
thereof for the Lenders and the Issuer, and (y) one original copy of each
thereof to the attention of Xxxx Xxxxxxx (telecopy number: 000-000-0000)
(telephone number: 000-000-0000); and (C) in all other cases, Xxxx Xxxxxxx
(telecopy number: 000-000-0000) (telephone number: 000-000-0000); or, as to
any case referred to in this clause (iv) at such other address as shall be
designated by the Agent in a written notice to the other parties.
(b) All such notices and communications shall, when mailed,
telecopied, or delivered, be effective when deposited in the mails,
telecopied with confirmation of receipt, or delivered by hand, by Federal
Express or by such other courier, to the addressee or its agent,
respectively, except that notices and communications to the Agent pursuant to
Article II or IX shall not be effective until received by the Agent.
10.3. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
10.4. Costs; Expenses; Indemnities. (a) The Loan Parties jointly
and severally agree to pay on demand (i) all reasonable costs and expenses of
the Agent in
193
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, each of the other Loan
Documents and each of the other documents to be delivered hereunder and
thereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel, accountants, appraisers, consultants or
industry experts retained by the Agent with respect thereto and with respect
to advising it as to its rights and responsibilities under this Agreement and
the other Loan Documents, and (ii) all reasonable costs and expenses of the
Agent, the Issuer and each Lender (including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel, accountants,
appraisers, investment bankers and advisors, consultants or industry experts
retained by the Agent, the Issuer or any Lender) in connection with the
restructuring or enforcement (whether through negotiation, legal proceedings
or otherwise) of this Agreement and the other Loan Documents.
(b) The Loan Parties jointly and severally agree to indemnify and
hold harmless each Indemnitee from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits,
costs, disbursements and expenses of any kind or nature (including, without
limitation, fees and disbursements of counsel to any such Indemnitee and
experts, engineers and consultants and the costs of investigation and
feasibility studies) which may be imposed on, incurred by or asserted against
any such Indemnitee in connection with or arising out of any investigation,
litigation, violation or proceeding, whether or not any such Indemnitee is a
party thereto, whether direct, indirect, or consequential and whether based
on any federal, state or local law or other statutory regulation, securities
or commercial law or regulation, or under common law or in equity, or on
contract, tort or otherwise, in any manner relating to or arising out of or
based upon or attributable to this Agreement, any other Loan Document, any
Related Document, any document delivered hereunder or thereunder, any
Obligation, any Guarantied Obligation, or any act, event or transaction
related or attendant to any thereof, including, without limitation, (i)
arising from any misrepresentation or breach of warranty under Section 4.19
or any Environmental Claim or any Environmental Lien or any Remedial Action
or otherwise under any Environmental Law currently or hereafter in effect
arising out of or based upon anything relating to real property owned, leased
or operated by any Loan Party or any of its Subsidiaries or any of their
facilities or operations (collectively, the
194
"Indemnified Matters"); or (ii) suits or claims of Intellectual Property (as
defined in the Collateral Documents) infringement arising out of or in
connection with the Transactions or any action or omission by the Agent that
is permitted under any of the Loan Documents; provided, however, that none of
the Loan Parties shall have any obligation under this Section 10.4(b) to an
Indemnitee with respect to any Indemnified Matter caused by or resulting from
the gross negligence or willful misconduct of that Indemnitee, as determined
by a court of competent jurisdiction in a final non-appealable judgment or
order.
(c) If any Lender receives any payment of principal of, or is
subject to a conversion of, any Eurocurrency Rate Loan other than on the last
day of an Interest Period relating to such Loan, as a result of any payment
or conversion made by any Borrower or acceleration of the maturity of the
Notes pursuant to Section 8.2 or for any other reason, then, in any such
event, such Borrower shall, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender all
amounts required to compensate such Lender for any additional losses, costs
or expenses which it may reasonably incur as a result of such payment or
conversion, including, without limitation, any loss (including, without
limitation, loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Loan.
(d) The Loan Parties shall jointly and severally indemnify the
Agent, the Issuer and the Lenders for, and hold the Agent, the Issuer and the
Lenders harmless from and against, any and all claims for brokerage
commissions, fees and other compensation made against the Agent, the Issuer
and the Lenders for any broker, finder or consultant with respect to any
agreement, arrangement or understanding made by or on behalf of any Loan
Party or any of its Subsidiaries in connection with the transactions
contemplated by this Agreement.
(e) The Agent, the Issuer and each Lender agree that in the event
that any such investigation, litigation, violation or proceeding set forth in
subparagraph (b) above is asserted or threatened in writing or instituted
against it or any other Indemnitee, or any Remedial Action, is requested of
it or any of its officers, directors, agents and employees, for which any
Indemnitee may desire indemnity
195
or defense hereunder, such Indemnitee shall promptly notify the Borrowers in
writing.
(f) The Loan Parties, at the request of any Indemnitee, shall have
the obligation to defend against such investigation, litigation or proceeding
or requested Remedial Action, and the Loan Parties, in any event, may
participate in the defense thereof with legal counsel of their choice. In
the event that such Indemnitee requests the Loan Parties to defend against
such investigation, litigation or proceeding or requested Remedial Action,
the Loan Parties shall promptly do so and such Indemnitee shall have the
right to have legal counsel of its choice participate in such defense. No
action taken by legal counsel chosen by such Indemnitee in defending against
any such investigation, litigation or proceeding or requested Remedial
Action, shall vitiate or in any way impair any Borrower's obligation and duty
hereunder to indemnify and hold harmless such Indemnitee.
(g) Each Loan Party agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including,
without limitation, pursuant to this Section 10.4) or any other Loan Document
shall (i) survive payment of the Obligations and (ii) inure to the benefit of
any Person who was at any time an Indemnitee under this Agreement or any
other Loan Document.
10.5. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default each Lender, the Issuer and the Agent is
hereby authorized at any time and from time to time, to the fullest extent
permitted by 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
indebtedness at any time owing by such Lender, the Issuer or the Agent to or
for the credit or the account of any (a) Domestic Loan Party and Euramax,
against any and all of the Guarantied Obligations thereof and against any and
all of the Obligations, (b) in the case of Dutch Company, against any and all
of the Guarantied Obligations thereof and against any and all of the Company
Obligations, (c) in the case of U.K. Holdings, U.K. Company and Dutch
Holdings, against any and all of the Guarantied Obligations thereof, (d) in
the case of Dutch Operating Co., against any and all of the Dutch Operating
Co. Obligations and its Guarantied Obligations, (e) in the case of U.K.
Operating Co., against any and all of the U.K. Operating Co. Obligations and
its Guarantied Obligations, and (f) in the
196
case of any Subsidiary of Dutch Operating Co. or U.K. Operating Co., against
any and all of such Subsidiary's Guarantied Obligations, in each case whether
now or hereafter existing whether or not such Lender, the Issuer or the Agent
shall have made any demand under this Agreement or any Note or any other Loan
Document and although any or all of such Obligations, Guarantied Obligations,
Company Obligations, U.K. Operating Co. Obligations or Dutch Operating Co.
Obligations may be unmatured. Each Lender, the Issuer and the Agent agrees
that, after any such set-off and application made by such Lender, the Issuer
or the Agent against any Loan Party, such Lender, the Issuer or the Agent, as
the case may be, shall promptly notify such Loan party; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender, the Issuer and the Agent
under this Section are in addition to the other rights and remedies
(including, without limitation, other rights of set-off) which such Lender,
the Issuer and the Agent may have.
10.6. Binding Effect. This Agreement shall become effective as of
the Effective Date and thereafter shall be binding upon and inure to the
benefit of each Loan Party, the Agent, each Lender and the Issuer and their
respective successors and assigns, except that none of the Loan Parties shall
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Agent, the Issuer and the Lenders. Upon the
effectiveness hereof as provided above, each Existing Lender that is a party
hereto shall return to the Borrowers the Existing Notes of such Lender each
marked "cancelled."
10.7. Assignments and Participations. (a) Each Lender and the
Issuer may sell, transfer, negotiate or assign to one or more other Lenders
or Eligible Assignees all or a portion of its Commitments, its commitment to
issue Letter of Credit, the Loans and the Letter of Credit Obligations owing
to it and the Notes held by it and a commensurate portion of its rights and
obligations hereunder and under the other Loan Documents; provided, however,
that (i) each assignee hereunder shall be an Eligible Assignee, (ii) after
the occurrence of a Bankruptcy Event, each such assignment shall be of a
single, and not a varying, percentage of all the assigning Lender's rights
and obligations under this Agreement, and (iii) after giving effect to such
assignment, the aggregate Commitments, outstanding Loans and outstanding
Letter of Credit Obligations of the assignor
197
Lender shall, unless all of the assignor Lender's Commitments, outstanding
Loans and outstanding Letter of Credit Obligations are assigned, be no less
than $5,000,000, and the aggregate Commitments, outstanding Loans and
outstanding Letter of Credit Obligations of the assignee Lender shall, unless
all of the assignor Lender's Commitments, outstanding Loans and outstanding
Letter of Credit Obligations are assigned to such assignee, be no less than
$5,000,000. The parties to each assignment shall execute and deliver to the
Agent, for its acceptance and recording, an Assignment and Acceptance,
together with the Notes (or an Affidavit of Loss and Indemnity with respect
to such Notes satisfactory to the Agent) subject to such assignment and a
payment to the Agent by such parties, for the account of the Agent, of an
assignment fee of $1,000 in the case of any such assignment to an existing
Lender and $5,000 in the case of any other assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (A) the assignee thereunder
shall become a party hereto and, to the extent that rights and obligations
under the Loan Documents have been assigned to such assignee pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender and/or
Issuer hereunder and thereunder, and (B) the assignor thereunder shall, to
the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights (except those which survive the payment in full of the Obligations)
and be released from its obligations under the Loan Documents (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto, except for purposes of rights that
survive payment in full of the Obligations).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor and/or the Issuer assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto
as follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Lender or assigning Issuer makes no representation or warranty
and assumes no responsibility with respect to any of the statements,
warranties or representations made in or in connection with this Agreement or
any other Loan Document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan
198
Document or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Lender or assigning Issuer makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under this Agreement or any other Loan
Document or of any other instrument or document furnished pursuant hereto or
thereto; (iii) such assigning Lender or assigning Issuer confirms that it has
delivered to the assignee and the assignee confirms that it has received a
copy of this Agreement and each of the Loan Documents together with a copy of
the most recent financial statements delivered by Euramax to the Lenders
pursuant to each of the clauses of Section 6.11 (or if no such statements
have been delivered, the financial statements referred to in Section 4.5 of
this Agreement) 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 will, independently and without
reliance upon the Agent, such assigning Lender or assigning Issuer or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender and/or Issuer.
(c) The Agent shall maintain at its address referred to in Section
10.2 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders,
the Issuer and the Commitments of and principal amount of the Loans and the
amount of the Letter of Credit Obligations owing to each Lender and the
Issuer from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Loan Parties, the Agent, the Lenders and the Issuer may treat each Person
whose name is recorded in the Register as a Lender or the Issuer for all
purposes of this
199
Agreement. The Register shall be available for inspection by the Loan
Parties, any Lender or the Issuer at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assignor and an assignee representing that it is an Eligible Assignee,
together with the Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Loan parties. Within five Business
Days after its receipt of such notice, each applicable Borrower, at its own
expense, shall execute and deliver to the Agent, in exchange for such
surrendered Notes, new Notes to the order of such Eligible Assignee in an
amount equal to the Commitments assumed by it pursuant to such Assignment and
Acceptance and, if the assignor has retained Commitments hereunder, new Notes
to the order of the assignor in an amount equal to the Commitments retained
by it hereunder. Such new Notes shall be dated the same date as the
surrendered Notes and be in substantially the form of Exhibits A-1 through
A-8 hereto, as applicable.
(e) In addition to the other assignment rights provided in this
Section 10.7, each Lender may assign, as collateral or otherwise, any of its
rights under this Agreement (including, without limitation, rights to
payments of principal or interest on the Loans) to any Federal Reserve Bank
without notice to or consent of any Loan Party or the Agent; provided,
however, that no such assignment shall release the assigning Lender from any
of its obligations hereunder. The terms and conditions of any such
assignment and the documentation evidencing such assignment shall be in form
and substance satisfactory to the assigning Lender and the assignee Federal
Reserve Bank.
(f) Each Lender and the Issuer may sell participations to one or more
banks or other Persons in or to all or a portion of its rights and obligations
under the Loan Documents (including, without limitation, all or a portion of its
Commitments, its commitment to issue Letters of Credit, the Loans owing to it,
the Letter of Credit Obligations owing to it, and the Notes held by it). The
terms of such participation shall not, in any event, require the participant's
consent to any amendments, waivers or other modifications of any provision of
any Loan Documents,
200
the consent to any departure by any Loan Party therefrom, or to the
exercising or refraining from exercising any powers or rights which such
Lender and the Issuer may have under or in respect of the Loan Documents
(including, without limitation, the right to enforce the obligations of the
Loan Parties), except if any such amendment, waiver or other modification or
consent would (i) reduce the amount or postpone any final maturity date of
the Loans or reduce the amount of interest or fees payable to such
participant under the Loan Documents to which such participant would
otherwise be entitled under such participation or (ii) result in the release
of all or substantially all of the Collateral other than in accordance with
the Collateral Documents. In the event of the sale of any participation by
any Lender or the Issuer, (i) such Lender's and the Issuer's obligations
under the Loan Documents (including, without limitation, its Commitments)
shall remain unchanged, (ii) such Lender and the Issuer shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender and the Issuer shall remain the holder of such
Notes and Obligations for all purposes of this Agreement, (iv) such Lender
and the Issuer shall disclose to the Agent the identity of each bank or other
entity purchasing a participation within a reasonable time after the sale and
purchase of such participation, and (v) each Loan Party, the Agent, the
Issuer and the other Lenders shall continue to deal solely and directly with
such Lender or the Issuer, as applicable, in connection with such Lender's or
the Issuer's rights and obligations under this Agreement.
(g) Each participant shall be entitled to the benefits of Sections
2.11, 2.12, 2.13 and 2.15 as if it were an Issuer or a Lender; provided,
however, that anything herein to the contrary notwithstanding, none of the
Borrowers shall, at any time, be obligated to pay to any participant of any
interest of the Issuer or any Lender, under Section 2.11, 2.12, 2.13 or 2.15,
any sum in excess of the sum which such Borrower would have been obligated to
pay to the Issuer or such Lender in respect of such interest had such
participation not been sold.
10.8. Governing Law; Severability. This Agreement and the Notes
and the rights and obligations of the parties hereto and thereto shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any
201
provision of this agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10.9. Submission to Jurisdiction; Service of Process; Judgment.
(a) Any legal action or proceeding with respect to this Agreement, the Notes
or any other Loan Document or any document related hereto or thereto may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery
of this Agreement, each Loan Party hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The parties hereto hereby irrevocably waive any objection,
including, without limitation, any objection to the laying of venue or based
on the grounds of forum non conveniens, which any of them may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) Each Loan Party hereby irrevocably appoints CT Corporation (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to receive on behalf of
such Loan Party and its property service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to such Loan Party in care of the Process Agent at the Process
Agent's above address, and such Loan Party hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. As an
alternative method of service, each Loan Party also irrevocably consents to
the service of any and all process in any such action or proceeding by the
mailing of copies of such process to such Loan Party at its address specified
in Section 10.2. Each Loan Party agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing in this Section 10.9 shall affect the right of any
Lender, the Issuer or the Agent to serve legal process in any other manner
permitted by law or affect the right of any Lender, the Issuer or the Agent
to bring any action or proceeding against any Loan Party or its property in
the courts of other jurisdictions.
202
(d) To the extent that any Loan Party has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself or its
property, such Loan Party hereby irrevocably waives such immunity in respect
of its obligations under this Agreement and the other Loan Documents.
(e) Each Loan Party's obligations hereunder and under the other
Loan Documents to make payments in Dollars or in any Alternative Currency
(the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into
any currency other than the Obligation Currency, except to the extent that
such tender or recovery results in the effective receipt by the Agent, the
Issuer or a Lender of the full amount of the Obligation Currency expressed to
be payable to the Agent or such Lender under this Agreement or the other Loan
Documents. If there is a change in the rate of exchange prevailing between
the date of such conversion and the date of actual payment of the amount due,
each Loan Party covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Other Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Other Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on such conversion date. If for the
purposes of obtaining judgment in any court it is necessary to convert a sum
due hereunder or under the Notes into or from any currency other than the
Obligation Currency (such other currency being the "Other Currency") an
amount due in the Obligation Currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Agent could purchase the Obligation Currency with the Other Currency at the
rate of exchange (as quoted by the Agent) determined as of the Business Day
preceding that on which final judgment is given.
(f) The obligation of each Loan Party in respect of any sum due in
the Obligation Currency from it to any Lender, the Issuer or the Agent
hereunder or under the Note held by such Lender, shall, notwithstanding any
judgment in
203
any Other Currency, be discharged only to the extent that, on the Business
Day following receipt by such Lender, the Issuer or the Agent (as the case
may be) of any sum adjudged to be so due in such Other Currency, such Lender,
the Issuer or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such Other Currency; if the amount
of the Obligation Currency so purchased is less than the sum originally due
to such Lender, the Issuer or the Agent (as the case may be) in the
Obligation Currency, each Loan Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender, the Issuer or
the Agent (as the case may be) against such loss, and if the amount of the
Obligation Currency so purchased exceeds the sum originally due to any
Lender, the Issuer or the Agent (as the case may be) in the Obligation
Currency, such Lender, the Issuer or the Agent (as the case may be) agrees to
remit to such Loan Party such excess.
(g) For purposes of determining the equivalent of an Alternative
Currency or of Dollars or the rate of exchange for this Section, such amounts
shall include any premium and costs payable in connection with the purchase
of the Obligation Currency.
10.10. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
10.11. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
10.12. Entire Agreement. This Agreement, together with all of the
other Loan Documents and all certificates and documents delivered hereunder
or thereunder and the agreements referred to in Section 2.4(b) embody the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
10.13. Confidentiality. Each Lender, the Issuer and the Agent
agree to keep information obtained by it pursuant hereto and the other Loan
Documents confidential in
204
accordance with such Lender's, the Issuer's or the Agent's, as the case may
be, customary practices and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not
disclose any of such information other than (i) to such Lender's, the
Issuer's or the Agent's, as the case may be, employees, representatives and
agents who are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this
Agreement and who are advised of the confidential nature of such information,
(ii) to the extent such information presently is or hereafter becomes
available to such Lender, the Issuer or the Agent, as the case may be, on a
non-confidential basis from a source other than the Loan Parties, (iii) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors, or (iv) to assignees or
participants or potential assignees or participants who agree to be bound by
the provisions of this sentence.
10.14. Waiver of Jury Trial. Each of the parties hereto waives any
right it may have to trial by jury in respect of any litigation based on, or
arising out of, under or in connection with this Agreement or any other Loan
Document, or any course of conduct, course of dealing, verbal or written
statement or action of any party hereto.
205
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EURAMAX INTERNATIONAL PLC
By: ---------------------------------
Title:
EURAMAX EUROPEAN HOLDINGS PLC
By: ----------------------------------
Title:
EURAMAX EUROPEAN HOLDINGS, B.V.
By: ----------------------------------
Title:
EURAMAX EUROPE LIMITED
By: ----------------------------------
Title:
EURAMAX NETHERLANDS B.V.
By: ----------------------------------
Title:
EURAMAX HOLDINGS LIMITED
By: ----------------------------------
Title:
S-1
EURAMAX EUROPE B.V.
By: ----------------------------------
Title:
ELLBEE LIMITED
By: ----------------------------------
Title:
EURAMAX COATED PRODUCTS LIMITED
By: ----------------------------------
Title:
EURAMAX COATED PRODUCTS B.V.
By: ----------------------------------
Title:
AMERIMAX HOLDINGS, INC.
AMERIMAX FABRICATED PRODUCTS, INC.
AMERIMAX BUILDING PRODUCTS, INC.
AMERIMAX COATED PRODUCTS, INC.
AMERIMAX RICHMOND COMPANY
AMERIMAX HOME PRODUCTS, INC.
AMERIMAX LAMINATED PRODUCTS, INC.
By: ----------------------------------
Title:
FABRAL HOLDINGS, INC.
(formerly, Gentek Holdings, Inc.)
FABRAL, INC.
(formerly, Gentek Building Products, Inc.)
By: ----------------------------------
Title:
S-2
BANQUE PARIBAS, as Agent, as a
Lender and as the Issuer
By: ----------------------------------
Title:
By: ----------------------------------
Title:
BANKBOSTON, N.A., as a Lender
By: ----------------------------------
Title:
BHF-BANK AKTIENGESELLSCHAFT, as a Lender
By: ----------------------------------
Title:
By: ----------------------------------
Title:
CREDITANSTALT BANKVEREIN, as a Lender
By: ----------------------------------
Title:
FLEET NATIONAL BANK, as a Lender
By: ----------------------------------
Title:
S-3
LASALLE NATIONAL BANK, as a Lender
By: ----------------------------------
Title:
WACHOVIA BANK, N.A., as a Lender
By: ----------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as a Lender
By: ----------------------------------
Title:
PPM AMERICA, INC., as attorney in fact, on behalf
of Xxxxxxx National Life Insurance Company, as a
Lender
By: ----------------------------------
Title:
DE NATIONALE INVESTERINGS BANK N.V., as a Lender
By: ----------------------------------
Title:
By: ----------------------------------
Title:
PARIBAS CAPITAL FUNDING LLC, as a Lender
S-4
By: ----------------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: ----------------------------------
Title:
DEBT STRATEGIES FUND, INC.
By: ----------------------------------
Title:
S-5
SCHEDULE I
COMMITMENTS
Part 1: REVOLVING CREDIT COMMITMENTS
REVOLVING CREDIT COMMITMENT
-----------------------------
LENDER DOLLAR AMOUNT PERCENTAGE
------ -------------- -------------
Banque Paribas....................................................................... $ 10,000,000 10%
De Nationale Investeringsbank N.V.................................................... 7,000,000 7%
LaSalle National Bank................................................................ 16,000,000 16%
Creditanstalt Bankverein............................................................. 9,000,000 9%
BHF-Bank Aktiengesellschaft.......................................................... 12,000,000 12%
Fleet National Bank.................................................................. 11,000,000 11%
BankBoston, N.A...................................................................... 14,000,000 14%
The First National Bank of Chicago................................................... 14,000,000 14%
Paribas Capital Funding LLC.......................................................... 0 0%
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc......................................... 0 0%
Debt Strategies Fund, Inc............................................................ 0 0%
PPM America, Inc..................................................................... 0 0%
Wachovia Bank, N.A................................................................... 7,000,000 7%
Total:............................................................................. $ 100,000,000 100%
Part 2: U.S. DOLLAR TERM A LOAN COMMITMENTS
U.S. DOLLAR
TERM A LOAN COMMITMENT
-----------------------------
LENDER DOLLAR AMOUNT PERCENTAGE
------ ---------------- -----------
Banque Paribas..................................................................... $ 2,631,578.93 13.16%
De Nationale Investeringsbank N.V.................................................. 2,105,263.15 10.53%
LaSalle National Bank.............................................................. 1,578,947.37 7.89%
Creditanstalt Bankverein........................................................... 2,105,263.16 10.53%
BHF-Bank Aktiengesellschaft........................................................ 2,631,578.95 13.16%
Fleet National Bank................................................................ 2,105,263.15 10.53%
BankBoston, N.A.................................................................... 2,105,263.15 10.53%
The First National Bank of Chicago................................................. 3,157,894.74 15.77%
Paribas Capital Funding LLC........................................................ 0.00 0.00%
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc....................................... 0.00 0.00%
Debt Strategies Fund, Inc.......................................................... 0.00 0.00%
PPM America, Inc................................................................... 0.00 0.00%
Wachovia Bank, N.A................................................................. 1,576,947.37 7.89%
Total............................................................................ $ 20,000,000.00 100.00%
I-1
Part 3: U.S. DOLLAR TERM C LOAN COMMITMENTS
U.S. DOLLAR
TERM C LOAN COMMITMENT
---------------------------
LENDER DOLLAR AMOUNT PERCENTAGE
------ -------------- -----------
Banque Paribas........................................................................ $ 2,000,000 10.00%
De Nationale Investeringsbank N.V..................................................... 0 0.00%
La Salle National Bank................................................................ 0 0.00%
Creditanstalt Bankverein.............................................................. 0 0.00%
BHF-Bank Aktiengesellschaft........................................................... 500,000 2.50%
Fleet National Bank................................................................... 0 0.00%
BankBoston, N.A....................................................................... 500,000 2.50%
The First National Bank of Chicago.................................................... 0 0.00%
Paribas Capital Funding LLC........................................................... 4,000,000 20.00%
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc.......................................... 3,750,000 18.75%
Debt Strategies Fund, Inc............................................................. 3,750,000 18.75%
PPM America, Inc...................................................................... 5,500,000 27.50%
Wachovia Bank, N.A.................................................................... 0 0.00%
Total............................................................................... $ 20,000,000 100.00%
I-2
SCHEDULE I-A
EXISTING TERM LOANS, EXISTING REVOLVING CREDIT LOANS
AND EXISTING REVOLVING CREDIT COMMITMENTS
(each in dollars, determined as of the Effective Date
as provided in the Existing Credit Agreement)
R/C -- Amerimax Triangle -- Letters of Credit......... $ 993,291.00
R/C -- Amerimax Triangle -- USD....................... $8,450,500.00
R/C -- Amerimax Triangle -- Swingline USD............. $1,800,000.00
R/C -- Euramax Holdings Ltd. -- GBP................... $9,442,871.98 Exchange Rate 1.6870 5,597,434.49 GBP
R/C -- Euramax Netherlands NGL........................ $3,953,819.24 Exchange Rate 1.9770 7,816,700.63 NLG
Revolving Credit Unused............................... $60,359,517.78
--------------
Total R/C............................................ $85,000,000.00
Term A UK Operating Co................................ $5,169,826.90 Exchange Rate 1.6855 3,067,236.37 GBP
Term A Dutch Co....................................... $6,064,256.38 Exchange Rate 1.9786 11,998,924.38 NLG
Term B US$ Only...................................... $15,300,500.00
Dutch Company UK Operating Co. US Dollar R/C Loans Owned R/C Loans Owned R/C Loan
Lender Term Loan Term Loan Term Loan by Dutch Company by UK Operating Co. USD
------------ --------------- ----------------- ------------- ----------------- ------------------- -------------
Banque
Paribas... $1,276,685.56 $1,088,384.57 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
De Nationale
Investeringsbank
N.V....... $ 638,342.78 $ 544,192.33 $ 0.00 $ 372,124.16 $ 888,740.89 $ 964,752.94
LaSalle
National
Bank...... $ 478,757.08 $ 408,144.23 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
Creditanstalt
Bankverein.. $ 638,342.78 $ 544,192.31 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.54
BHF-Bank
Aktienge
sellschaft. $ 797,928.47 $ 680,240.38 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
Fleet
National
Bank...... $ 638,342.78 $ 544,192.31 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
BankBoston,
N.A....... $ 638,342.78 $ 544,192.31 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
The First
National
Bank of
Chicago... $ 957,514.17 $ 816,288.46 $ 0.00 $ 511,670.73 $1,222,018.73 $ 1,326,535.29
Paribas
Capital
Funding
LLC....... $ 0.00 $ 0.00 $3,825,125.00 $ 0.00 $ 0.00 $ 0.00
Xxxxxxx
Xxxxx
Senior
Floating
Rate Fund,
Inc....... $ 0.00 $ 0.00 $7,650,250.00 $ 0.00 $ 0.00 $ 0.00
PPM America,
Inc.
(Xxxxxxx
National
Life
Insurance
Co.)...... $ 0.00 $ 0.00 $3,825,125.00 $ 0.00 $ 0.00 $ 0.00
Totals...... $6,064,256.38 $5,169,826.90 $15,300,500.00 $3,953,819.24 $9,442,871.98 $10,250,500.00
Participations
in Existing R/C
Lender Existing L/C's Commitment(unused)
------------ --------------- --------------------
Banque
Paribas... $128,543.54 $ 7,034,542.53
De Nationale
Investeringsbank
N.V....... $ 93,486.21 $ 6,003,992.45
LaSalle
National
Bank...... $128,543.54 $ 7,401,450.55
Creditanstalt
Bankverein.. $128,543.54 $ 8,339,218.94
BHF-Bank
Aktienge- $128,543.54 $ 7,937,318.20
sellschaft
Fleet
National
Bank...... $128,543.54 $ 8,071,285.11
BankBoston,
N.A....... $128,543.54 $ 7,669,384.38
The First
National
Bank of
Chicago... $128,543.54 $ 7,902,325.62
Paribas
Capital
Funding
LLC....... $ 0.00 $ 0.00
Xxxxxxx
Xxxxx
Senior
Floating
Rate Fund,
Inc....... $ 0.00 $ 0.00
PPM America,
Inc.
(Xxxxxxx
National
Life
Insurance
Co.)...... $ 0.00 $ 0.00
Totals...... $993,291.00 $60,359,517.78
I-A-1
SCHEDULE I-B
EFFECTIVE DATE ASSIGNMENTS
None.
I-B-1
SCHEDULE II
APPLICABLE SUBLIMITS
Transaction Revolving
Credit Loan Borrower Applicable Sublimit
--------------------- -------------------
Dutch Company................................... $20,500,000
U.K. Operating Co............................... $15,500,000
U.S. Operating Co............................... $44,000,000
-------------------
Total:...................... $80,000,000
II-1
SCHEDULE III
------------
APPLICABLE LENDING OFFICES AND
ADDRESSES FOR NOTICES
---------------------
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
------ --------------------
Lending Office
--------------------
Banque Paribas Banque Paribas Banque Paribas
The Equitable Tower
The Equitable Tower
000 Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
Telecopy:
(000) 000-0000
Telephone:
(000) 000-0000
BankBoston, N.A. BankBoston, N.A. BankBoston, N.A.
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxx Xxxx 000000 Mail Code 010805
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxxx Alto
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
PPM America, Inc. PPM America PPM America
000 Xxxx Xxxxxx Xxxxx 000 Xxxx Xxxxxx
Xxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx DiRe
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Xxxxxxx National Life Xxxxxxx National Life
III-1
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
------ --------------------
Lending Office
--------------------
0000 Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
ext. 3660
III-2
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
------ --------------------
Lending Office
--------------------
Xxxxxxx Xxxxx Senior Xxxxxxx Xxxxx Senior Xxxxxxx Xxxxx Senior
Floating Rate Fund, Floating Rate Fund, Inc. Floating Rate Fund Inc.
Inc. 000 Xxxxxxxx Xxxx Xxxx 800 Scudders Mill Road
Area 2C Area 2C
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
MLAM Accounting MLAM Accounting
000 Xxxxxxx Xxxx-0X 000 Xxxxxxx Xxxx-0X
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Debt Strategies Fund, Debt Strategies Fund, Inc Debt Strategies Fund,
Inc. 000 Xxxxxxxx Xxxx Xxxx Inc.
- Area 0X Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 X.X. Xxx 000
Attention: Xxxx Xxxxxxxx Xxxxxx Town, Grand Cayman
Telecopy: (000) 000-0000 Cayman Island,
Telephone: (000) 000-0000 British West Indies
MLAM Accounting
MLAM Accounting
000 Xxxxxxx Xxxx - 4E 000 Xxxxxxx Xxxx - 0X
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
III-3
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
------ --------------------
Lending Office
--------------------
De Nationale De Nationale De Nationale
Investeringsbank N.V. Investeringsbank N.V. Investeringsbank X.X.
Xxxxxxxxxxxxx 0 Xxxxxxxxxxxxx 0
0000 XX THE HAGUE 2517 KJ THE HAGUE
X.X. Xxx 000 X.X. Xxx 000
0000 BH THE HAGUE 2501 BH THE HAGUE
THE NETHERLANDS THE NETHERLANDS
Attention: Xxx Xxx Xxxxxx
Telecopy: 011 31 70 342 5548
Telephone: 000 00 00 000 0000
LaSalle National Bank LaSalle National Bank LaSalle National Bank
000 X. XxXxxxx Xx. 000 X. XxXxxxx Xx.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Raider
Telecopy (000) 000-0000
Telephone: (000) 000-0000
Paribas Capital Paribas Capital Funding LLC
Funding LLC The Equitable Tower
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Creditanstalt Creditanstalt Creditanstalt
Bankverein Bankverein Bankverein
Two Xxxxxxxxx Xxxxx Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx/
Xxxx X. Xxxxx
III-4
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
----- --------------------
Lending Office
--------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
BHF-BANK BHF-BANK
BHF-BANK
Aktiengesellschaft Aktiengesellschaft Aktiengesellschaft
NY Branch Grand Cayman Branch
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Fleet National Bank Fleet National Bank Fleet National Bank
00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx Mail Code-MABDFO4P
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The First National The First National Bank The First National Bank
Bank of Chicago of Chicago of Chicago
, London
Suite 0324 First Chicago House
1 FNP - 10th Floor 00 Xxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxx XX0X 0XX XXXXXXX
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Wachovia Bank, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
III-5
Domestic Lending
Office and Address
Eurocurrency
Lender for Notices
----- --------------------
Lending Office
--------------------
000 Xxxxxxxxx Xxxxxx, X.X. 000 X. Xxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx-Xxxxx, X.X. 00000
Attn: Xxxxxxx X.X. Xxxxx Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000 Telecopy:(000)000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Issuer Address for Notices
------ -------------------
Banque Paribas Banque Paribas
The Equitable Tower
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
III-6
