<PAGE>
EXHIBIT 10.71
$300,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 23, 2005,
AMONG
GENERAL CABLE INDUSTRIES, INC.,
AS BORROWER,
GENERAL CABLE CORPORATION
AND
THE OTHER GUARANTORS PARTY HERETO,
AS GUARANTORS,
THE LENDERS PARTY HERETO,
MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC.,
AS COLLATERAL AGENT,
NATIONAL CITY BUSINESS CREDIT, INC.,
AS SYNDICATION AGENT,
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT,
MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., AND
UBS SECURITIES LLC,
AS JOINT LEAD ARRANGERS,
MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC.,
AS ADMINISTRATIVE AGENT AND SWINGLINE LENDER
UBS AG, STAMFORD BRANCH,
AS ISSUING BANK
AND
MERRILL LYNCH BANK USA,
AS ISSUING BANK
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE I.
DEFINITIONS...................................................
2
SECTION 1.01
Defined
Terms........................................... 2
SECTION 1.02
Classification of
Loans and Borrowings.................. 47
SECTION 1.03
Terms
Generally......................................... 47
SECTION 1.04
Accounting Terms;
GAAP.................................. 48
ARTICLE II. THE
CREDITS..................................................
48
SECTION 2.01
Commitments.............................................
48
SECTION 2.02
Loans...................................................
49
SECTION 2.03
Borrowing
Procedure..................................... 51
SECTION 2.04
Evidence of Debt;
Repayment of Loans.................... 52
SECTION 2.05
Fees....................................................
52
SECTION 2.06
Interest on Loans and
Default Compensation.............. 54
SECTION 2.07
Termination and
Reduction of Commitments................ 54
SECTION 2.08
Interest
Elections...................................... 55
SECTION 2.09
[Intentionally
Omitted]................................. 56
SECTION 2.10
Optional and Mandatory
Prepayments of Loans............. 56
SECTION 2.11
Alternate Rate of
Interest.............................. 60
SECTION 2.12
Increased
Costs......................................... 60
SECTION 2.13
Breakage
Payments....................................... 61
SECTION 2.14
Payments Generally;
Pro Rata Treatment; Sharing of
Set-offs................................................
62
SECTION 2.15
Taxes...................................................
64
SECTION 2.16
Mitigation
Obligations; Replacement of Lenders.......... 65
SECTION 2.17
Swingline
Loans......................................... 66
SECTION 2.18
Letters of
Credit....................................... 67
SECTION 2.19
Determination of
Borrowing Base......................... 73
SECTION 2.20
Commitment
Increase..................................... 78
ARTICLE III. REPRESENTATIONS AND
WARRANTIES.............................. 79
SECTION 3.01
Organization;
Powers.................................... 79
SECTION 3.02
Authorization;
Enforceability........................... 80
SECTION 3.03
Governmental
Approvals; No Conflicts.................... 80
SECTION 3.04
Financial
Statements.................................... 80
SECTION 3.05
Properties..............................................
81
SECTION 3.06
Equity Interests and
Subsidiaries....................... 84
SECTION 3.07
Litigation; Compliance
with Laws........................ 84
SECTION 3.08
Agreements..............................................
85
SECTION 3.09
Federal Reserve
Regulations............................. 85
SECTION 3.10
Investment Company
Act; Public Utility Holding Company
Act.....................................................
85
</TABLE>
i
<PAGE>
<TABLE>
<S>
<C>
SECTION 3.11
Use of
Proceeds......................................... 85
SECTION 3.12
Taxes...................................................
85
SECTION 3.13
No Material
Misstatements............................... 86
SECTION 3.14
Labor
Matters........................................... 86
SECTION 3.15
Solvency................................................
86
SECTION 3.16
Employee Benefit and
Pension Plans...................... 87
SECTION 3.17
Environmental
Matters................................... 88
SECTION 3.18
Insurance...............................................
89
SECTION 3.19
Security
Documents...................................... 89
SECTION 3.20
Equity Financing
Documents; Representations and
Warranties in Agreement.................................
90
SECTION 3.21
[Intentionally
Omitted.]................................ 90
SECTION 3.22
Location of Material
Inventory.......................... 90
SECTION 3.23
Accuracy of Borrowing
Base.............................. 90
SECTION 3.24
Post-Audit Asset
Dispositions........................... 91
SECTION 3.25
Holding Companies;
Inactive Subsidiaries................ 91
SECTION 3.26
Common
Enterprise....................................... 91
ARTICLE IV. CONDITIONS TO CREDIT
EXTENSIONS.............................. 91
SECTION 4.01
Conditions to Continue
to Fund the Credit Extensions.... 91
SECTION 4.02
Conditions to All
Credit Extensions..................... 94
ARTICLE V. AFFIRMATIVE
COVENANTS......................................... 95
SECTION 5.01
Financial Statements,
Reports, etc...................... 95
SECTION 5.02
Litigation and Other
Notices............................ 98
SECTION 5.03
Existence; Businesses
and Properties.................... 98
SECTION 5.04
Insurance...............................................
99
SECTION 5.05
Obligations and
Taxes................................... 100
SECTION 5.06
Employee Benefits and
Pension Plans..................... 100
SECTION 5.07
Maintaining Records;
Access to Properties and
Inspections.............................................
101
SECTION 5.08
Use of
Proceeds......................................... 101
SECTION 5.09
Compliance with
Environmental Laws; Environmental
Reports.................................................
102
SECTION 5.10
[Intentionally
Omitted]................................. 102
SECTION 5.11
Additional Collateral;
Additional Guarantors............ 102
SECTION 5.12
Security Interests;
Further Assurances.................. 104
SECTION 5.13
Information Regarding
Collateral; Corporate Identity or
Taxpayer Identifications................................
104
SECTION 5.14
Post-Closing
Collateral Matters......................... 105
SECTION 5.15
Borrowing Base-Related
Reports.......................... 105
SECTION 5.16
[Intentionally
Omitted]................................. 107
SECTION 5.17
[Intentionally
Omitted]................................. 107
SECTION 5.18
Maintenance of Real
Property............................ 107
</TABLE>
ii
<PAGE>
<TABLE>
<S>
<C>
ARTICLE VI. NEGATIVE
COVENANTS........................................... 107
SECTION 6.01
Indebtedness............................................
108
SECTION 6.02
Liens...................................................
111
SECTION 6.03
Sale and Leaseback
Transactions......................... 114
SECTION 6.04
Investments, Loans and
Advances......................... 114
SECTION 6.05
Mergers,
Consolidations, Sales of Assets and
Acquisitions............................................
117
SECTION 6.06
Restricted
Payments..................................... 119
SECTION 6.07
Transactions with
Affiliates............................ 121
SECTION 6.08
Financial
Covenants..................................... 122
SECTION 6.09
Limitation on
Modifications of Indebtedness;
Modifications of Certificate of Incorporation, or Other
Constitutive Documents, By-laws and Certain Other
Agreements, etc.........................................
122
SECTION 6.10
Limitation on Certain
Restrictions on Subsidiaries...... 122
SECTION 6.11
Limitation on Issuance
of Capital Stock................. 123
SECTION 6.12
Limitation on Creation
of Subsidiaries.................. 123
SECTION 6.13
Business................................................
124
SECTION 6.14
Limitation on
Accounting Changes........................ 124
SECTION 6.15
Fiscal
Year............................................. 124
SECTION 6.16
No Negative
Pledges..................................... 124
SECTION 6.17
Lease
Obligations....................................... 124
SECTION 6.18
Upstream
Restrictions................................... 124
SECTION 6.19
Holdings Companies;
Inactive Subsidiaries............... 125
SECTION 6.20
Material
Agreements..................................... 125
ARTICLE VII.
GUARANTEE...................................................
125
SECTION 7.01
The
Guarantee........................................... 125
SECTION 7.02
Obligations
Unconditional............................... 126
SECTION 7.03
Reinstatement...........................................
127
SECTION 7.04
Subrogation;
Subordination.............................. 128
SECTION 7.05
Remedies................................................
128
SECTION 7.06
Instrument for the
Payment of Money..................... 128
SECTION 7.07
Continuing
Guarantee.................................... 128
SECTION 7.08
General Limitation on
Guarantee Obligations............. 128
ARTICLE VIII. EVENTS OF
DEFAULT.......................................... 130
ARTICLE IX. COLLATERAL MATTERS; CASH COLLATERAL ACCOUNTS;
APPLICATION OF
COLLATERAL PROCEEDS..........................................
133
SECTION 9.01
Accounts and Account
Collections........................ 133
SECTION 9.02
Inventory; Field
Audits and Appraisals.................. 136
SECTION 9.03
Equipment, Real
Property and Appraisals................. 136
SECTION 9.04
Cash Collateral
Account................................. 137
SECTION 9.05
Application of
Proceeds................................. 137
</TABLE>
iii
<PAGE>
<TABLE>
<S>
<C>
ARTICLE X. THE ADMINISTRATIVE AGENT AND THE COLLATERAL
AGENT............. 138
SECTION 10.01
Appointment.............................................
138
SECTION 10.02
Administrative Agent and Collateral Agent in Their
Individual Capacity.....................................
139
SECTION 10.03
Exculpatory Provisions..................................
139
SECTION 10.04
Reliance by the Administrative Agent and the Collateral
Agent...................................................
140
SECTION 10.05
Delegation of Duties....................................
140
SECTION 10.06
Successor Administrative Agent and/or Collateral Agent..
141
SECTION 10.07
Non-Reliance on the Administrative Agent, the Collateral
Agent or Other Lenders..................................
141
SECTION 10.08 No
Other Administrative Agent or Collateral Agent....... 142
SECTION 10.09
Indemnification.........................................
142
SECTION 10.10
Overadvances............................................
142
SECTION 10.11
Special Agent Advances..................................
143
SECTION 10.12
Revolving Loan Advances; Payments and Settlements;
Interest and Fee Payments...............................
144
ARTICLE XI.
MISCELLANEOUS................................................
145
SECTION 11.01
Notices.................................................
145
SECTION 11.02
Waivers; Amendment; Releases of Collateral..............
146
SECTION 11.03
Expenses; Indemnity.....................................
149
SECTION 11.04
Successors and Assigns..................................
150
SECTION 11.05
Survival of Agreement...................................
153
SECTION 11.06
Counterparts; Integration; Effectiveness................
153
SECTION 11.07
Severability............................................
153
SECTION 11.08
Right of Setoff.........................................
153
SECTION 11.09
Governing Law; Jurisdiction; Consent to Service of
Process.................................................
154
SECTION 11.10
Waiver of Jury Trial....................................
154
SECTION 11.11
Headings................................................
155
SECTION 11.12
Confidentiality.........................................
155
SECTION 11.13
Interest Rate Limitation................................
156
SECTION 11.14
Lender Addendum.........................................
156
SECTION 11.15
Dollar Equivalent Calculations..........................
156
SECTION 11.16
Judgment Currency.......................................
156
SECTION 11.17
Patriot Act.............................................
157
ARTICLE XII. AMENDMENT AND RESTATEMENT OF EXISTING CREDIT
AGREEMENT...... 157
</TABLE>
iv
<PAGE>
ANNEXES
Annex I
Applicable Margin
Annex II Closing
Checklist
SCHEDULES
Schedule 1.01(a) Mortgaged
Real Property
Schedule 1.01(b)
Refinancing Indebtedness To Be Repaid
Schedule 1.01(c)
Guarantors
Schedule 1.01(d) Eligible
Equipment and Eligible Real Property
Schedule 1.01(e) Locations
of Eligible Equipment
Schedule 1.01(f)
Intercompany Agreements
Schedule 3.03
Governmental Approvals; Compliance with Laws
Schedule 3.05(b) Real
Property; Maintenance and Repairs
Schedule 3.06(a)
Subsidiaries
Schedule 3.06(c) Corporate
Organizational Chart
Schedule 3.08(c) Material
Agreements
Schedule 3.16
Canadian Pension Plans
Schedule 3.17
Environmental Matters
Schedule 3.18
Insurance
Schedule 3.22
Location of Material Inventory
Schedule 4.01(d) Local
Counsel
Schedule 4.01(n) Landlord
Access Agreements
Schedule 4.01(o)(iii) Title Insurance Amounts
Schedule 5.14
Post-Closing Matters
Schedule 6.01(b) Existing
Indebtedness
Schedule 6.01(c) Existing
Interest Rate Protection Agreements
Schedule 6.02(c) Existing
Liens
Schedule 6.04(a) Existing
Investments
Schedule 6.18
Holdings Companies; Inactive Subsidiaries
EXHIBITS
Exhibit A-1 Form of Administrative Questionnaire
Exhibit A-2 Form of Compliance Certificate
Exhibit A-3 Form of LC Request
Exhibit A-4 Form of Lender Addendum
Exhibit B Form
of Assignment and Acceptance
Exhibit C Form
of Borrowing Request
Exhibit D Form
of Interest Election Request
Exhibit E Form
of Joinder Agreement
Exhibit ECI Form of Customer Agreement
v
<PAGE>
Exhibit F Form
of Landlord Lien Waiver and Access Agreement
Exhibit G Form
of Mortgage
Exhibit H-1 Form of Revolving Note
Exhibit H-2 Form of Swingline Note
Exhibit I-1 Form of Perfection Certificate
Exhibit I-2 Form of Perfection Certificate Supplement
Exhibit J-1 Form of US Security Agreement
Exhibit J-2 Form of Canadian Security Agreement
Exhibit K Form
of Opinion of Blank Rome LLP
Exhibit L Form
of Intercompany Note
Exhibit M Form
of Borrowing Base Certificate
Exhibit SHA Cross Currency Swap Transaction
Exhibit 12 Exiting
Lender Interest
vi
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT")
dated
as of November 23, 2005, is among GENERAL CABLE INDUSTRIES, INC., a
Delaware
corporation ("BORROWER"), the Guarantors (such term and each other
capitalized
term used but not defined herein having the meaning given to it in
Article I),
the Lenders, MERRILL LYNCH CAPITAL a division of Merrill Lynch
Business
Financial Services Inc. and UBS SECURITIES LLC, as joint lead
arrangers
(collectively, in such capacity, "ARRANGERS"), NATIONAL CITY
BUSINESS CREDIT,
INC., as syndication agent (in such capacity, "SYNDICATION AGENT"),
BANK OF
AMERICA, N.A., as documentation agent (in such capacity,
"DOCUMENTATION AGENT"),
UBS AG, STAMFORD BRANCH, in its individual capacity (in such
capacity, "UBS"),
as issuing bank and MERRILL LYNCH BANK USA, in its individual
capacity (in such
capacity, "MERRILL LYNCH BANK"), as issuing bank (UBS and Merrill
Lynch Bank
each in such capacity, "ISSUING BANK"), and MERRILL LYNCH CAPITAL,
a division of
Merrill Lynch Business Financial Services Inc., in its individual
capacity (in
such capacity, "Merrill"), as swingline lender (in such capacity,
"SWINGLINE
LENDER"), as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT") for
the Lenders, and collateral agent and as security trustee (in such
capacity,
"COLLATERAL AGENT") for the Secured Parties.
WITNESSETH:
WHEREAS, Borrower and certain parties hereto are parties to an
Amended and
Restated Credit Agreement, dated as of October 22, 2004 (as
amended,
supplemented or otherwise modified prior to the date hereof, the
"Prior Credit
Agreement"), pursuant to which the Lenders extended Revolving Loans
and other
Credit Extensions in an aggregate principal amount at any time
outstanding not
in excess of $275.0 million for the purposes of (a) restating and
refinancing
outstanding borrowings under the Original Credit Agreement (as
hereinafter
defined), (b) financing any Permitted Loan Funded Acquisition and
(c) providing
funds for general corporate purposes of Borrower;
WHEREAS, immediately prior to the effectiveness of this Agreement,
UBS will
resign as the administrative agent under the Prior Credit Agreement
and the
other Loan Documents and, pursuant to this Agreement, Merrill will
be appointed
as the Administrative Agent hereunder and under the other Loan
Documents;
WHEREAS, Borrower, the Administrative Agent, the Collateral Agent
and
Lenders desire to amend and restate the Prior Credit Agreement on
the terms set
forth herein to, among other things, (a) reduce the Applicable
Margins as set
forth herein and (b) increase the aggregate Revolving
Commitments.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
hereinafter contained, and for other good and valuable
consideration, the
parties hereto agree to amend and restate the Prior Credit
Agreement in its
entirety as follows:
1
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the
following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, is used
when such
Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate
determined by reference to the Alternate Base Rate.
"ABR
BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR
LOAN" shall mean any ABR Revolving Loan.
"ABR REVOLVING BORROWING"
shall mean a Borrowing comprised of ABR Revolving
Loans.
"ABR
REVOLVING LOAN" shall mean any Revolving Loan bearing interest at
a
rate determined by reference to the Alternate Base Rate in
accordance with the
provisions of Article II.
"ACCOUNT DEBTOR" shall mean any Person who may become obligated to
another
Person under, with respect to, or on account of, an Account.
"ACCOUNTING CHANGES" shall have meaning assigned to such term in
Section
1.04.
"ACCOUNTS" shall mean all "accounts," as such term is defined in
the UCC,
in which any Person now or hereafter has rights, including, without
limitation,
any and all rights to payment for the sale or lease of goods or
rendition of
services, whether or not they have been earned by performance, in
each case, for
purposes of calculating the Borrowing Base, net of any credits,
rebates or
offsets owed by Borrower or Borrowing Base Guarantors to the
respective
customer.
"ACQUISITION CONSIDERATION" shall mean the purchase consideration
for any
Permitted Acquisition and all other payments paid to or for the
benefit of the
seller by Holdings or any of its Subsidiaries in exchange for, or
as part of, or
in connection with, any Permitted Acquisition, whether paid in cash
or by
exchange of Equity Interests or of assets or otherwise and whether
payable at or
prior to the consummation of such Permitted Acquisition or deferred
for payment
at any future time, whether or not any such future payment is
subject to the
occurrence of any contingency, and includes any and all payments
representing
the purchase price and any assumptions of Indebtedness, "earn-outs"
and other
agreements to make any payment the amount of which is, or the terms
of payment
of which are, in any respect subject to or contingent upon the
revenues, income,
cash flow or profits (or the like) of any Person or business.
"ACQUISITION DEBT ISSUANCE" shall mean unsecured Indebtedness
issued to
seller(s) or to or sold through financial institutions acceptable
to the
Administrative Agent in its reasonable discretion as consideration
for a
Permitted Non-Loan Funded Acquisition in an amount, on such terms
(including
ownership and structure of the Person being acquired and the
identity of all
2
<PAGE>
obligors with respect to such debt), and subordinated to the
Obligations in a
manner and form satisfactory to the Administrative Agent in its
reasonable
discretion as to right and time of payment and as to any other
terms, rights and
remedies thereunder.
"ACTIVATION NOTICE" shall have the meaning assigned to such term in
Section
9.01(e)(i).
"ADJUSTED LIBOR RATE" shall mean, with respect to any Eurodollar
Revolving
Borrowing for any Interest Period, (a) an interest rate per annum
(rounded
upward, if necessary, to the next 1/100 of 1%) determined by the
Administrative
Agent to be equal to the LIBOR Rate for such Eurodollar Revolving
Borrowing in
effect for such Interest Period divided by (b) 1 minus the
Statutory Reserves
(if any) for such Eurodollar Revolving Borrowing for such Interest
Period.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the
preamble hereto and includes each other Person appointed as the
successor
pursuant to Article X.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in
Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire
in the form of Exhibit A, or such other form as may be supplied
from time to
time by the Administrative Agent.
"AFFILIATE" shall mean, when used with respect to a specified
Person,
another Person that directly, or indirectly through one or more
intermediaries,
Controls or is Controlled by or is under common Control with the
Person
specified; provided, however, that, for purposes of Section 6.07,
the term
"Affiliate" shall also include any Person that directly or
indirectly owns more
than 20% of any class of Equity Interests of the Person specified
or that is an
executive officer or director of the Person specified.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble
hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded
upward, if necessary, to the next 1/100 of 1%) equal to the greater
of (a) the
Base Rate in effect on such day and (b) the Federal Funds Effective
Rate in
effect on such day plus 0.50%. If the Administrative Agent shall
have determined
(which determination shall be conclusive absent manifest error)
that it is
unable to ascertain the Federal Funds Effective Rate for any
reason, including
the inability or failure of the Administrative Agent to obtain
sufficient
quotations in accordance with the terms of the definition thereof,
the Alternate
Base Rate shall be determined without regard to clause (b) of the
preceding
sentence until the circumstances giving rise to such inability no
longer exist.
Any change in the Alternate Base Rate due to a change in the Base
Rate or the
Federal Funds Effective Rate shall be effective on the effective
date of such
change in the Base Rate or the Federal Funds Effective Rate,
respectively.
"APPLICABLE MARGIN" shall mean, for any day, with respect to any
Revolving
Loan, the applicable percentage set forth in Annex I under the
appropriate
caption, based upon average daily Excess Availability for the most
recent fiscal
quarter.
3
<PAGE>
"ARRANGERS" shall have the meaning assigned to such term in the
preamble
hereto.
"ASSET SALE" shall mean (a) any conveyance, sale, lease,
sublease,
assignment, transfer or other disposition (including by way of
merger or
consolidation and including any sale and leaseback transaction) of
any Property
(including stock of any Subsidiary of Holdings by the holder
thereof) by
Holdings, Intermediate Holdings, Borrower or any of their
Subsidiaries to any
Person other than Borrower or any Guarantor (excluding (i)
Inventory sold in the
ordinary course of business, (ii) any sale or discount, in each
case without
recourse, of accounts receivable arising in the ordinary course of
business, but
only in connection with the compromise or collection thereof, (iii)
disposals of
obsolete, uneconomical, negligible, worn out or surplus Property in
the ordinary
course of business or (iv) sales of Cash Equivalents and marketable
securities)
and (b) any issuance or sale by any Subsidiary of Holdings of its
Equity
Interests to any Person (other than to Borrower or any
Guarantor).
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered
into by a Lender and an assignee, and accepted by the
Administrative Agent, in
the form of Exhibit B, or such other form as shall be approved by
the
Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" shall mean, when used with respect to
any sale
and leaseback transaction, as at the time of determination, the
present value
(discounted at a rate equivalent to the then-current weighted
average cost of
funds for borrowed money of Holdings and all of its Domestic
Subsidiaries as at
the time of determination, compounded on a semi-annual basis) of
the total
obligations of the lessee for rental payments during the remaining
term of the
lease included in any such sale and leaseback transaction.
"AUTOZONE ACCOUNT(S)" shall mean those certain Account(s) with
AutoZone,
Inc. as the Account Debtor, owing to Borrower, any Borrowing Base
Guarantor, or
any Subsidiary thereof.
"AVAILABLE AMOUNT" shall mean, with respect to any Eligible
Account, an
amount equal to the book value of such Eligible Account multiplied
by the then
applicable advance rate with respect to such Eligible Account, as
adjusted by
the Collateral Agent in its reasonable credit judgment and pursuant
to the
Credit Agreement.
"BASE RATE" shall mean a variable per annum rate, as of any date
of
determination, equal to the rate of interest which is identified
and normally
published by Bloomberg Professional Service Page Prime as the
"Prime Rate" (or,
if more than one rate is published as the Prime Rate, then the
highest of such
rates). Any change in Base Rate will become effective as of the
date the rate of
interest which is so identified as the "Prime Rate" is different
from that
published on the preceding Business Day. If Bloomberg Professional
Service no
longer reports the Prime Rate, or if such Page Prime no longer
exists, the
Administrative Agent may select a reasonably comparable index or
source to use
as the basis for the Base Rate, provided that Administrative Agent
shall give
prompt subsequent notice of such selection to Borrower.
"BIA" shall mean the Bankruptcy and Insolvency Act (Canada), as the
same
may be in effect from time to time.
"BLOCKED ACCOUNT" shall have the meaning assigned to such term in
Section
9.01(d).
4
<PAGE>
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of
the United States.
"BORROWER" shall have the meaning assigned to such term in the
preamble
hereto.
"BORROWING" shall mean (a) Revolving Loans of the same Class and
Type,
made, converted or continued on the same date and, in the case of
Eurodollar
Revolving Loans, as to which a single Interest Period is in effect,
or (b) a
Swingline Loan.
"BORROWING BASE" shall mean at any time, subject to adjustment as
provided
in Section 2.19, an amount equal to the lesser of:
(a)
an amount equal to the
sum of, without duplication:
(i) the book value of Eligible Accounts of Borrower multiplied by
the
advance rate of 85%, plus
(ii) the lesser of (i) the advance rate of 60% of the Cost of
Eligible
Inventory of Borrower or (ii) the advance rate of 85% of the Net
Recovery Cost
Percentage multiplied by the Cost of Eligible Inventory of
Borrower, plus
(iii) the aggregate of all Incorporated Borrowing Bases, plus
(iv) the lesser of (i) the Fixed Asset Loan Value of Borrower
multiplied by the FALV Amortization Factor or (ii) $50.0 million,
minus
(v) effective immediately upon notification thereof to Borrower by
the
Collateral Agent, any Reserves established from time to time by the
Collateral
Agent in the exercise of its reasonable credit judgment;
or
(b)
the maximum amount permitted to be outstanding pursuant to
Section
4.10(b)(3) of the Qualified Senior Note Indenture.
Assets denominated in Canadian Dollars shall for purposes hereof be
valued at
the Dollar Equivalents.
The Borrowing Base at any time shall be determined by reference to
the most
recent Borrowing Base Certificate theretofore delivered to the
Collateral Agent
and the Administrative Agent with such adjustments (subject to any
Lender
approval required by Section 2.19) as the Collateral Agent deem
appropriate in
its reasonable credit judgment to assure that the Borrowing Base is
calculated
in accordance with the terms of this Agreement.
"BORROWING BASE CERTIFICATE" shall mean an Officers' Certificate
from
Borrower, substantially in the form of, and containing the
information
prescribed by, Exhibit M, delivered to the Administrative Agent and
the
Collateral Agent setting forth Borrower's calculation of the
5
<PAGE>
Borrowing Base (including the maximum amount permitted to be
outstanding
pursuant to Section 4.10(b)(3) of the Qualified Senior Note
Indenture).
"BORROWING BASE GUARANTOR" shall mean Holdings, Intermediate
Holdings,
General Cable Canada, General Cable LLC, General Cable Texas,
General Cable
Technologies and any other Wholly Owned Subsidiary of Borrower
which may
hereafter be approved by Administrative Agent and Collateral Agent
which (a) is
a Domestic Subsidiary or a Canadian Subsidiary, (b) is currently
able to prepare
all collateral reports in a comparable manner to the Borrower's
reporting
procedures and (c) has executed and delivered to Collateral Agent
such joinder
agreements to guarantees, contribution and set-off agreements and
other Security
Documents as Collateral Agent has reasonably requested so long as
Collateral
Agent has received and approved, in its reasonable discretion, (i)
a collateral
audit and Inventory Appraisal conducted by an independent appraisal
or audit
firm designated by Collateral Agent and reasonably acceptable to
Borrower and
(ii) all UCC or PPSA search results necessary to confirm Collateral
Agent's
first priority Lien on all of such Borrowing Base Guarantor's
personal Property,
subject to Permitted Liens.
"BORROWING BASE GUARANTOR INTERCOMPANY LOAN ACCOUNT" shall mean the
sum of
(a) the net amount of any intercompany advances (including Letters
of Credit
issued for the account or benefit of a Borrowing Base Guarantor)
which are made
and are outstanding to or for the account of a Borrowing Base
Guarantor from
Borrower and (b) interest accrued and unpaid on such amount at the
rate per
annum equal to the Alternate Base Rate plus the Applicable Margin
in effect from
time to time.
"BORROWING REQUEST" shall mean a request by Borrower in accordance
with the
terms of Section 2.03 and substantially in the form of Exhibit C,
or such other
form as shall be approved by the Administrative Agent.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other
day on which either the New York Stock Exchange is closed, or on
which
commercial banks in New York City and Chicago are authorized or
required by law
to close; provided, however, that when used in connection with a
Eurodollar
Revolving Loan, the term "Business Day" shall also exclude any day
on which
banks are not open for dealings in Dollar deposits in the London
interbank
market.
"CANADIAN" shall mean, as to any Person, a Person that is created
or
organized under the laws of Canada or a Province or territory of
Canada.
"CANADIAN BENEFIT PLANS" shall mean all material employee benefit
plans of
any nature or kind whatsoever that are not Canadian Pension Plans
and are
maintained or contributed to by any Loan Party having employees in
Canada.
"CANADIAN DOLLARS" and the sign "CDN$" shall mean lawful currency
of
Canada.
"CANADIAN GUARANTY" shall mean that certain Guarantee dated as of
the
Original Closing Date addressed to the Collateral Agent for the
benefit of the
Secured Parties by General Cable Canada, and that certain Guarantee
dated as of
the Original Closing Date addressed to the Collateral Agent for the
benefit of
the Secured Parties by General Cable Canada Ltd., an Ontario
corporation, which
are governed by Canadian law, as the same may from time to time
be
6
<PAGE>
modified, amended, extended or reaffirmed in accordance with the
terms hereof
and with the consent of Collateral Agent.
"CANADIAN PENSION PLANS" shall mean each plan which is considered
to be a
pension plan for the purposes of any applicable pension benefits
standards
statute and/or regulation in Canada established, maintained or
contributed to by
any Loan Party for its employees or former employees and shall not
mean the
Canadian Pension Plan that is maintained by the Government of
Canada.
"CANADIAN PLEDGE AGREEMENTS" shall mean that certain ULC Securities
Pledge
Agreement by Holdings pledging all of its Equity Interests in
General Cable
Canada, that certain ULC Securities Pledge Agreement by Marathon
Manufacturing
Holdings, Inc., a Delaware corporation, pledging all of its Equity
Interests in
General Cable Canada, and that certain ULC Securities Pledge
Agreement by
General Cable Canada Ltd., an Ontario corporation, pledging all of
its Equity
Interests in General Cable Canada, each dated as of the Original
Closing Date
addressed to Collateral Agent for the benefit of the Secured
Parties, as the
same may from time to time be modified, amended, extended or
reaffirmed in
accordance with the terms hereof and with the consent of Collateral
Agent.
"CANADIAN PRIORITY PAYMENT RESERVE" shall mean, at any time, with
respect
to General Cable Canada and any other Canadian Loan Party, the
amount past due
and owing by any such Person, or the accrued amount for which any
such Person
has an obligation to remit to a Governmental Authority or other
Person pursuant
to any applicable law, rule or regulation, in respect of (i)
pension fund
obligations; (ii) unemployment insurance; (iii) goods and services
taxes; sales
taxes; employee income taxes and other taxes payable or to be
remitted or
withheld; (iv) workers' compensation; (v) vacation pay; and (vi)
other like
charges and demands; in each case, in respect of which any
Governmental
Authority or other Person may claim a security interest, lien,
trust or other
claim ranking or capable of ranking in priority to or pari passu
with one or
more of the Liens granted in the Security Documents.
"CANADIAN SECURITY AGREEMENT" shall mean that certain Security
Agreement
dated as of the Original Closing Date addressed to the Collateral
Agent for the
benefit of the Secured Parties by General Cable Canada, which is
governed by
Canadian law, as the same may from time to time be modified,
amended, extended
or reaffirmed in accordance with the terms hereof and with the
consent of
Collateral Agent.
"CAPITAL EXPENDITURES" shall
mean, with respect to any Person, for any
period, the aggregate amount of all expenditures by such Person and
its
Subsidiaries during that period for fixed or capital assets that,
in accordance
with GAAP, are or should be classified as capital expenditures in
the
consolidated balance sheet of such Person and its Consolidated
Subsidiaries.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the
obligations of
such Person to pay rent or other amounts under any lease of (or
other
arrangement conveying the right to use) Property, or a combination
thereof,
which obligations are required to be classified and accounted for
as capital
leases on a balance sheet of such Person under GAAP, and the amount
of such
obligations shall be the capitalized amount thereof determined in
accordance
with GAAP.
7
<PAGE>
"CASH COLLATERAL ACCOUNT" shall have the meaning assigned to such
term in
Section 9.04.
"CASH EQUIVALENTS" shall mean, as to any Person: (a) securities
issued, or
directly, unconditionally and fully guaranteed or insured, by the
United States
or any agency or instrumentality thereof (provided, that the full
faith and
credit of the United States is pledged in support thereof) having
maturities of
not more than one year from the date of acquisition by such Person;
(b)
securities issued, or directly, unconditionally and fully
guaranteed or insured,
by any state of the United States of America or any political
subdivision of any
such state or any public instrumentality thereof maturing within
one year from
the date of acquisition thereof and, at the time of acquisition,
having one of
the two highest ratings obtainable from either Standard &
Poor's Ratings Group
or Moody's Investors Services, Inc.; (c) time deposits and
certificates of
deposit or bankers' acceptance of any Lender or any commercial bank
having, or
which is the principal banking subsidiary of a bank holding company
organized
under the laws of the United States, any state thereof or the
District of
Columbia having, capital and surplus aggregating in excess of
$500.0 million and
a rating of "A" (or such other similar equivalent rating) or higher
by at least
one nationally recognized statistical rating organization (as
defined in Rule
436 under the Securities Act) with maturities of not more than one
year from the
date of acquisition by such Person; (d) repurchase obligations with
a term of
not more than 30 days for underlying securities of the types
described in
clauses (a) and (b) above entered into with any bank meeting the
qualifications
specified in clauses (c) above, which repurchase obligations are
secured by a
valid perfected security interest in the underlying securities; (e)
commercial
paper issued by any Person incorporated in the United States rated
at least A-1
or the equivalent thereof by Standard & Poor's Rating Service
or at least P-1 or
the equivalent thereof by Moody's Investors Service, Inc., and in
each case
maturing not more than one year after the date of acquisition by
such Person;
(f) investments in money market funds substantially all of whose
assets are
comprised of securities of the types described in clauses (a)
through (e) above;
and (g) demand deposit accounts maintained in the ordinary course
of business.
"CASH MANAGEMENT SYSTEM" shall have the meaning assigned to such
term in
Section 9.01(e).
"CASUALTY EVENT" shall mean, with respect to any Property
(including Real
Property) of any Person (other than a Person which is a Foreign
Subsidiary of
Holdings) any loss of title with respect to such Property or any
loss of or
damage to or destruction of, or any condemnation or other taking
(including by
any Governmental Authority) of, such Property for which such Person
or any of
its Subsidiaries (other than Foreign Subsidiaries) receives
insurance proceeds
or proceeds of a condemnation award or other compensation.
"Casualty Event"
shall include but not be limited to any taking of all or any part
of any Real
Property of any such Person or any part thereof, in or by
condemnation or other
eminent domain proceedings pursuant to any law, or by reason of the
temporary
requisition of the use or occupancy of all or any part of any Real
Property of
any such Person or any part thereof by any Governmental Authority,
civil or
military.
"CCAA" shall mean the Companies' Creditors Agreement Act (Canada),
as the
same may be in effect from time to time.
8
<PAGE>
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
"CHANGE IN CONTROL" shall be deemed to have occurred if: (a) any
Person or
group (within the meanings of the Securities Exchange Act of 1934
and the rules
of the Securities and Exchange Commission thereunder as in effect
on the date
hereof) acquires ownership, directly or indirectly, beneficially or
of record,
of capital stock representing more than 30% of the aggregate
ordinary voting
power represented by the issued and outstanding stock of Holdings,
(b)
occupation of a majority of the seats (other than vacant seats) on
the board of
directors of Holdings by Persons who were not (i) directors of
Holdings on the
date hereof, (ii) nominated by the board of directors of Holdings,
or (iii)
appointed by directors so nominated (it being understood that, in
the absence of
an event described in clause (a) or (b), the replacement of one or
more officers
of Holdings shall not in and of itself constitute a Change in
Control), (c)
Holdings at any time ceases to own and control 100% of the capital
stock of
Intermediate Holdings, (d) Intermediate Holdings at any time ceases
to own and
control 100% of the capital stock of Borrower, (f) Holdings at any
time ceases
to, directly or indirectly, own and control 100% of each class of
the
outstanding equity interests of each Borrowing Base Guarantor and
(g) at any
time a change of control occurs under and as defined in any
documentation
relating to any Material Indebtedness.
"CHANGE IN LAW" shall mean (a) the adoption of any law, treaty,
order, rule
or regulation after the date of this Agreement, (b) any change in
any law,
treaty, order, rule or regulation or in the interpretation or
application
thereof by any Governmental Authority after the date of this
Agreement or (c)
compliance by any Lender or Issuing Bank (or for purposes of
Section 2.12(b), by
any lending office of such Lender or by such Lender's or Issuing
Bank's holding
company, if any) with any request, guideline or directive (whether
or not having
the force of law) of any Governmental Authority made or issued
after the date of
this Agreement.
"CHARGES" shall have the meaning assigned to such term in Section
11.13.
"CHATTEL PAPER" shall mean all "chattel paper," as such term is
defined in
the UCC as in effect on the date hereof in the State of New York,
in which any
Person now or hereafter has rights.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or
Swingline Loans and, when used in reference to any Commitment,
refers to whether
such Commitment is a Revolving Commitment, Swingline Commitment or
LC
Commitment.
"CLOSING DATE" shall mean November 23, 2005.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time
to time.
"COLLATERAL" shall mean, collectively, all of the Security
Agreement
Collateral, the Mortgaged Real Property and all other Property of
whatever kind
and nature pledged as collateral under any Security Document.
9
<PAGE>
"COLLATERAL AGENT" shall have the meaning assigned to such term in
the
preamble hereto and shall include the Collateral Agent in its
capacity as
trustee for the Secured Parties solely for the purposes of English
law in
respect of the Collateral which is the subject of the Security
Documents and
Foreign Pledge Agreements governed by English law, and each other
Person
appointed as the successor pursuant to Article X
"COLLATERAL AGENT FEE" shall have the meaning ascribed to such term
in
Section 2.05(b)(ii).
"COLLECTION ACCOUNT" shall have the meaning assigned to such term
in
Section 9.01(e)(i)
"COMMERCIAL LETTER OF CREDIT" shall mean any letter of credit or
similar
instrument issued for the account of Borrower for the benefit of
Borrower or any
Borrowing Base Guarantor, for the purpose of providing the primary
payment
mechanism in connection with the purchase of materials, goods or
services by
Borrower or any Borrowing Base Guarantor in the ordinary course of
their
businesses.
"COMMITMENT" shall mean, with respect to any Lender, such
Lender's
Revolving Commitment, LC Commitment or Swingline Commitment.
"COMMITMENT FEE" shall have the meaning assigned to such term in
Section
2.05(a).
"COMMITMENT INCREASE" shall have the meaning assigned to such term
in
Section 2.20.
"COMMITMENTS" shall mean the aggregate sum of each Lender's
Commitment.
"COMPANIES" shall mean Holdings and its Subsidiaries; and "COMPANY"
shall
mean any one of them.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a Financial
Officer
substantially in the form of Exhibit A-2.
"CONCENTRATION ACCOUNT" shall have the meaning assigned to such
term in
Section 9.01(e)(i).
"CONCENTRATION ACCOUNT BANK" shall have the meaning assigned to
such term
in Section 9.01(e)(i).
"CONFIDENTIAL INFORMATION MEMORANDA" shall mean (a) that
certain
confidential offering memorandum dated as of November 19, 2003 with
respect to
the proposed issuance by Holdings of the Qualified Senior Notes,
(b) that
certain confidential offering memorandum dated as of November 19,
2003 with
respect to the proposed issuance by Holdings of the Convertible
Preferred Stock
and (c) that certain prospectus supplement dated as of November 19,
2003 with
respect to the proposed issuance by Holdings of its New Common
Stock.
"CONSOLIDATED COMPANIES" shall mean Holdings and its
Consolidated
Subsidiaries.
10
<PAGE>
"CONSOLIDATED EBITDA" shall mean, for any applicable measurement
period,
Consolidated Net Income for such period, as adjusted by adding
thereto (a) any
provision for (or less any benefit from) income and franchise taxes
included in
the determination of net income for such period, (b) the amount of
Consolidated
Interest Expense, (c) amortization and depreciation deducted in
the
determination of net income for such period, (d) amortization of
debt discount
and deferred financing costs, capitalized interest, interest paid
in kind, (e)
losses (or less gains) from Asset Sales included in the
determination of net
income for such period (excluding sales expenses or losses related
to current
assets), (f) other non-cash losses (or less gains) included in the
determination
of net income for such period and for which no cash outlay (or cash
receipt) is
foreseeable, (g) employee severance and other unusual charges of up
to $30.0
million in the aggregate for such period, to the extent recorded
for the
financial reporting purposes prior to the first anniversary of the
Original
Closing Date and relating to closures of plants located at (i) 37
Cushman St.,
Taunton MA 02780, (ii) 440 East 8th Street, Marion, IN 46953 and
(iii) 75 Canal
St., South Hadley, MA 01075, and (h) with the consent of the
Administrative
Agent, which may be withheld in its reasonable credit judgment,
extraordinary
losses (or less gains) included in the determination of net income
during such
period, net of related tax effects.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for any Test
Period,
the ratio of (a) Consolidated EBITDA for such Test Period less (i)
the amount of
all Capital Expenditures made by Holdings and its Subsidiaries
during such
period and (ii) all cash payments in respect of income taxes made
during such
period (net of any cash refund in respect of income taxes actually
received
during such period) to (b) Consolidated Fixed Charges for such Test
Period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any period, the sum,
without
duplication, of (a) Consolidated Interest Expense for such period;
(b) the
scheduled principal amount of all amortization payments on all
Indebtedness
(including the principal component of all Capital Lease
Obligations) of Holdings
and its Subsidiaries for such period (as determined on the first
day of the
respective period); (c) all dividend payments on any series of
Disqualified
Capital Stock of Holdings, and (d) all accrued dividends on any
Preferred Stock
(other than Disqualified Capital Stock) of Holdings, including the
Convertible
Preferred Stock (including dividends payable through the issuance
of Equity
Interests to the extent Holdings has not irrevocably declared such
dividends to
be payable through the issuance of Equity Interests). Consolidated
Fixed Charges
for Test Periods ending March 31, 2004, June 30, 2004 and September
30, 2004,
shall be deemed to be, respectively, the Consolidated Fixed Charges
as
calculated for the period commencing on January 1, 2004 and ending
on (x) March
31, 2004 and multiplied by 4.0, (y) June 30, 2004 and multiplied by
2.0 and (z)
September 30, 2004 and multiplied by 1.333.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
without
duplication, the total consolidated interest expense of Holdings
and its
Consolidated Subsidiaries for such period (calculated without
regard to any
limitations on the payment thereof and including commitment fees,
letter of
credit fees and net amounts payable under Interest Rate Protection
Agreements)
determined in accordance with GAAP plus, without duplication, (a)
the portion of
Capital Lease Obligations of Holdings and its Consolidated
Subsidiaries
representing the interest factor for such period, (b) imputed
interest on
Attributable Indebtedness, (c) cash contributions to any employee
stock
ownership plan or similar trust to the extent such contributions
are used by
such plan or trust to pay interest or fees to any Person (other
than Borrower or
a Wholly Owned
11
<PAGE>
Subsidiary) in connection with Indebtedness incurred by such plan
or trust, (d)
all interest paid or payable with respect to discontinued
operations, (e) all
dividend payments on any series of any Preferred Stock of any
Subsidiary of
Holdings (other than any Preferred Stock held by Holding or a
Wholly Owned
Subsidiary), and (f) all interest on any Indebtedness of the type
described in
clause (f) or (k) of the definition of "Indebtedness" with respect
to Holdings
or any of its Subsidiaries.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net
income of Holdings and its Consolidated Subsidiaries determined in
accordance
with GAAP, but excluding in any event (a) with the consent of
Administrative
Agent, which may be withheld in its reasonable credit judgment,
after-tax
extraordinary gains or extraordinary losses; (b) after-tax gains or
losses
realized from (i) the acquisition of any securities, or the
extinguishment or
conversion of any Indebtedness or Equity Interest, of Holdings or
any of its
Subsidiaries or (ii) any sales of assets (other than Inventory in
the ordinary
course of business); (c) net earnings or loss of any other Person
(other than a
Subsidiary of Holdings) in which Holdings or any Consolidated
Subsidiary has an
ownership interest, except (in the case of any such net earnings)
to the extent
such net earnings shall have actually been received by Holdings or
such
Consolidated Subsidiary (subject to the limitation in clause (d)
below) in the
form of cash dividends or distributions; (d) the net income of any
Consolidated
Subsidiary to the extent that the declaration or payment of
dividends or similar
distributions by such Consolidated Subsidiary of its net income is
not at the
time of determination permitted without approval under applicable
law or
regulation or under such Consolidated Subsidiary's organizational
documents or
any agreement (except such restrictions as are approved in writing
and in
advance by the Administrative Agent) or instrument applicable to
such
Consolidated Subsidiary or its stockholders; (e) gains or losses
from the
cumulative effect of any change in accounting principles; (f)
earnings resulting
from any reappraisal, revaluation or write-up of assets; and (g)
the income (or
loss) of any Person accrued prior to the date it becomes a
Subsidiary of
Holdings or any Consolidated Subsidiary or is merged into or
consolidated with
Holdings or any Consolidated Subsidiary or that Person's assets are
acquired by
Holdings or such Consolidated Subsidiary.
"CONSOLIDATED SUBSIDIARY" shall mean, as to any Person, all
Subsidiaries of
such Person which are consolidated with such Person for financial
reporting
purposes in accordance with GAAP.
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean, with respect to
any
Permitted Lien of the type described in paragraphs (a), (b) and (f)
of Section
6.02, the following conditions:
(a) any Loan Party shall be contesting such Lien in good faith;
(b) to the extent such Lien is in an amount in excess of $250,000,
in
the
aggregate with all other such Liens, the Collateral Agent shall
have
established a Reserve (to the extent of such Lien on Eligible
Accounts,
Eligible Inventory, Eligible Equipment or Eligible Real Property)
with
respect thereto or obtained a bond in an amount sufficient to pay
and
discharge such Lien and the Collateral Agent's reasonable estimate
of all
interest and penalties related thereto; and
12
<PAGE>
(c) such Lien shall in all respects be subject and subordinate
in
priority to the Lien and security interest created and evidenced by
the
Security Documents, except if and to the extent that the law or
regulation
creating, permitting or authorizing such Lien provides that such
Lien is or
must
be superior to the Lien and security interest created and evidenced
by
the
Security Documents.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any
obligation,
agreement, understanding or arrangement of such Person guaranteeing
or intended
to guarantee any Indebtedness, leases, dividends or other
obligations ("PRIMARY
OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether
directly or indirectly, including, without limitation, any
obligation of such
Person, whether or not contingent, (a) to purchase any such primary
obligation
or any Property constituting direct or indirect security therefor;
(b) to
advance or supply funds (i) for the purchase or payment of any such
primary
obligation or (ii) to maintain working capital or equity capital of
the primary
obligor or otherwise to maintain the net worth or solvency of the
primary
obligor; (c) to purchase Property, securities or services primarily
for the
purpose of assuring the owner of any such primary obligation of the
ability of
the primary obligor to make payment of such primary obligation; (d)
with respect
to bankers' acceptances and letters of credit, until a
reimbursement obligation
arises; or (e) otherwise to assure or hold harmless the holder of
such primary
obligation against loss in respect thereof; provided, however, that
the term
"Contingent Obligation" shall not include endorsements of
instruments for
deposit or collection in the ordinary course of business or any
product
warranties for deposit or collection in the ordinary course of
business. The
amount of any Contingent Obligation shall be deemed to be an amount
equal to the
stated or determinable amount of the primary obligation in respect
of which such
Contingent Obligation is made (or, if less, the maximum amount of
such primary
obligation for which such Person may be liable, whether severally
or jointly,
pursuant to the terms of the instrument evidencing such Contingent
Obligation)
or, if not stated or determinable, the maximum reasonably
anticipated liability
in respect thereof (assuming such Person is required to perform
thereunder) as
determined by such Person in good faith.
"CONTROL" shall mean the possession, directly or indirectly, of the
power
to direct or cause the direction of the management or policies of a
Person,
whether through the ownership of voting securities, by contract or
otherwise,
and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative
thereto.
"CONVERTIBLE PREFERRED STOCK" shall mean Holdings' 5.75% Series
A
Redeemable Convertible Preferred Stock of Holdings, par value $0.01
per share,
liquidation preference $50 per share, issued pursuant to the
Convertible
Preferred Stock Documents.
"CONVERTIBLE PREFERRED STOCK DOCUMENTS" shall mean the Certificate
of
Designations relating to the Convertible Preferred Stock, the
Convertible
Preferred Stock Purchase Agreement and other documents pursuant to
which the
Convertible Preferred Stock is issued and all other documents
executed and
delivered with respect to the Convertible Preferred Stock, in each
case in the
form delivered to the Administrative Agent prior to the Original
Closing Date.
"COST" shall mean, as determined by Collateral Agent in good faith,
with
respect to Inventory, the lower of (a) landed cost computed on a
first-in
first-out basis in accordance with GAAP or (b) market value;
provided, that for
purposes of the calculation of the Borrowing Base,
13
<PAGE>
(i) the Cost of the Inventory shall not include: (A) the portion of
the cost of
Inventory equal to the profit earned by any Affiliate on the sale
thereof to
Borrower or the Borrowing Base Guarantors, (B) write-ups or
write-downs in cost
with respect to currency exchange rates, or (C) as determined by
the Collateral
Agent in the Collateral Agent's reasonable credit judgment, any
costs associated
with shipping, handling, customs duties, or other in-bound freight
charges, and
(ii) notwithstanding anything to the contrary contained herein, the
cost of the
Inventory shall be computed in the same manner and consistent with
the most
recent Inventory Appraisal which has been received and approved by
Collateral
Agent in its reasonable discretion.
"CREDIT EXTENSION" shall mean, as the context may require, (a) the
making
of a Loan by a Lender or (b) the issuance of any Letter of Credit,
or the
amendment, extension or renewal of any existing Letter of Credit,
by the Issuing
Bank, in each case, whether pursuant to the Original Credit
Agreement, the Prior
Credit Agreement or this Agreement; provided, that "Credit
Extensions" shall
include conversions and continuations of outstanding Revolving
Loans.
"DEBT ISSUANCE" shall mean the incurrence by Holdings,
Intermediate
Holdings, Borrower or any of their Subsidiaries of any Indebtedness
after the
Original Closing Date (other than as permitted by Section
6.01).
"DEFAULT" shall mean any event, occurrence or condition which is,
or upon
notice, lapse of time or both would constitute, an Event of
Default.
"DEFAULT ALLOCATION PERCENTAGE" as to any Lender shall mean the
quotient
(determined as a percentage) determined as of the date of an Event
of Default,
whose numerator equals the principal, interest, fees and other
Obligations owing
to such Lender (including all advances made by such Lender
following such Event
of Default) plus the amount of such Lender's marked-to-market
exposure under
Specified Hedging Agreements as of such date and whose denominator
equals the
principal, interest, fees and other Obligations owing to all
Lenders (including
all advances made by the Lenders following such Event of Default)
plus the
amount of all Lenders' marked-to-market exposure under Specified
Hedging
Agreements as of such date.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means an agreement, in form
and
substance satisfactory to Collateral Agent, among Collateral Agent,
Borrower or
a Guarantor maintaining a deposit account at any bank, and such
bank, which
agreement provides that (a) such bank shall comply with
instructions originated
by Collateral Agent directing disposition of the funds in such
deposit account
without further consent by Borrower or such Guarantor (as
applicable), and (b)
such bank shall agree that it shall have no Lien on, or right of
setoff against,
such deposit account or the contents thereof, other than in respect
of
commercially reasonable fees and other items expressly consented to
by
Collateral Agent, and containing such other terms and conditions as
Collateral
Agent may require, including as to any such agreement pertaining to
any Blocked
Account, providing that all items received or deposited in such
Blocked Account
are the property of Collateral Agent, and that such bank shall
wire, or
otherwise transfer, in immediately available funds, on a daily
basis to the
Concentration Account, or, in the case of the Concentration
Account, to the
Collection Account, all funds received or deposited into such
Blocked Account.
14
<PAGE>
"DISQUALIFIED CAPITAL STOCK" shall mean any Equity Interest (other
than
Convertible Preferred Stock) which, by its terms (or by the terms
of any
security into which it is convertible or for which it is
exchangeable), or upon
the happening of any event, (a) matures (excluding any maturity as
the result of
an optional redemption by the issuer thereof) or is mandatorily
redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the
option of the holder thereof, in whole or in part, on or prior to
the first
anniversary of the Maturity Date, (b) is convertible into or
exchangeable
(unless at the sole option of the issuer thereof) for (i) debt
securities or
(ii) any Equity Interests referred to in (a) above, in each case at
any time
prior to the first anniversary of the Maturity Date, or (c)
contains any
repurchase obligation which may come into effect prior to payment
in full of all
Obligations.
"DOCUMENTATION AGENT" shall have the meaning assigned to such term
in the
preamble hereto.
"DOCUMENTS" shall mean all "documents," as such term is defined in
the UCC
as in effect on the date hereof in the State of New York, in which
any Person
now or hereafter has rights.
"DOLLAR EQUIVALENT" shall mean, as to any amount denominated in
Canadian
Dollars or any other currency as of any date of determination, the
amount of
Dollars that would be required to purchase the amount of Canadian
Dollars or
such other currency based upon the spot selling rate at which the
Administrative
Agent offers to sell Canadian Dollars or such other currency for
Dollars in the
London foreign exchange market at approximately 11:00 a.m. London
time on such
date for delivery two (2) Business Days later.
"DOLLARS" or "$" shall mean lawful money of the United States.
"DOMESTIC" shall mean, as to any Person, a Person which is created
or
organized under the laws of the United States, any of its states or
the District
of Columbia.
"ELIGIBLE ACCOUNTS" shall have the meaning assigned to such term in
Section
2.19(a).
"ELIGIBLE CONSIGNED INVENTORY" shall mean Eligible Inventory of
Borrower or
Borrowing Base Guarantor on consignment (A) on a location at which
the aggregate
Cost of such Eligible Inventory is no less than $100,000, (B) with
a consignee
of Borrower or Borrowing Base Guarantor with respect to which the
aggregate Cost
of such consigned Eligible Inventory is not less than $500,000, and
(C) with
respect to which Collateral Agent shall have received, in each case
in form and
substance satisfactory to Collateral Agent:
(a)
a valid consignment agreement or arrangement which is
reasonably
satisfactory to Collateral Agent is in place with respect to such
Eligible
Inventory;
(b)
UCC searches against the consignee in those jurisdictions in which
such
Eligible Inventory is subject to consignment and the jurisdiction
in which the
consignee is organized or maintains its principal place of business
and such
other searches that the Collateral Agent deems necessary or
appropriate;
15
<PAGE>
(c)
UCC-1 financing statements between the consignee and the Borrower
or
Borrowing Base Guarantor, as consignor, in form and substance
satisfactory to
Collateral Agent, which are duly assigned to Collateral Agent;
(d)
a written notice to any lender to the consignee of the first
priority
security interest in such Eligible Inventory of Collateral Agent;
and
(e)
an agreement in writing, in form and substance satisfactory to
Collateral Agent, from the consignee, pursuant to which such
consignee, inter
alia, acknowledges the first priority security interest of
Collateral Agent in
such Collateral, agrees to waive any and all claims such consignee
may, at any
time, have against such Collateral, whether for processing,
storage, breach of
warranty (with respect to prior purchases) or otherwise, and agrees
to permit
Collateral Agent access to the premises of such consignee so as to
remove such
Collateral from such premises and, in the case of any consignee who
at any time
has custody, control or possession of any Collateral, acknowledges
that it holds
and will hold possession of the Collateral for the benefit of
Collateral Agent
and agrees to follow all instructions of Collateral Agent with
respect thereto.
Notwithstanding the foregoing and upon reasonable request of
Borrower:
(1)
upon Collateral Agent receiving evidence satisfactory to it that
the
applicable consignee has no secured creditors that have a claim
with respect to
such Eligible Inventory, Administrative Agent may in its discretion
waive the
requirements of clauses (c) and (d) above; provided, however, that
such waiver
may be revoked by the Administrative Agent at any time upon five
Business Days
written notice to Borrower; provided, further, that the amount of
the Borrowing
Base which may be determined on the basis of Eligible Consigned
Inventory which
is eligible because of Administrative Agent's waiver pursuant to
this subclause
(1) of the requirements of clauses (c) and (d) above shall not
exceed $10.0
million at any time,
(2)
upon Collateral Agent receiving evidence satisfactory to it that
the
applicable consignee is a customer of Borrower in the ordinary
course of the
Borrower's business, Borrower may, in lieu of entering into an
agreement as
required by clause (e) above, enter into an agreement with such
consignee
substantially in the form attached hereto as Exhibit ECI; and
(3)
upon Collateral Agent receiving evidence satisfactory to it that
the
applicable consignee is both a customer of Borrower in the ordinary
course of
business and an Investment Grade Account Debtor, the requirements
of clauses
(b), (c) and (d) above shall be waived; provided, that (i) Borrower
will
schedule out such Inventory by location in the Borrower Base
Certificate and
list whether such customer is an Investment Grade Account Debtor
and (ii) the
aggregate Cost of Eligible Consigned Inventory which is eligible
because of the
waiver pursuant to this subclause (3) of the requirements of
clauses (b), (c)
and (d) above shall not exceed $20,000,000 at any time.
"ELIGIBLE EQUIPMENT" shall mean any Equipment owned by Borrower
or
Borrowing Base Guarantor which is acceptable to Administrative
Agent in its
reasonable credit judgment for lending purposes and which, without
limiting
Administrative Agent's discretion, meets, and so long as it
continues to meet,
the following requirements:
16
<PAGE>
(a) is located at one
of the business locations in the United States or
Canada of such Persons set forth on Schedule 1.01(e),
(b)
is subject to a valid and perfected first priority lien in favor
of
Collateral Agent,
(c)
is owned by Borrower or Borrowing Base Guarantor free and clear of
all
liens and rights of any other Person, except the valid and
perfected first
priority Lien in favor of Collateral Agent and Permitted Liens, if
any, which
are subordinated to the Lien of Collateral Agent,
(d) does not breach
any of the representations or warranties pertaining to
such property set forth in this Agreement or the other Loan
Documents,
(e)
is covered by insurance reasonably acceptable to Collateral
Agent,
(f)
is appraised by an independent appraisal or audit firm designated
by
Collateral Agent and reasonably acceptable to Borrower, and
(g)
is not ineligible by virtue of one or more of the criteria set
forth
below; provided, however, that such criteria may be revised from
time to time by
Administrative Agent in its reasonable credit judgment to address
the results of
any audit or appraisal performed by Collateral Agent from time to
time after the
date hereof.
An item of Equipment shall be excluded from Eligible Equipment
if:
(i)
Borrower or Borrowing Base Guarantor does not have good, valid,
and
marketable title thereto;
(ii)
it is located on real property leased by Borrower or Borrowing
Base
Guarantor, unless it is subject to a Landlord Lien Waiver and
Access Agreement
executed by the lessor, or other third party, as the case may be,
and unless it
is segregated or otherwise separately identifiable from goods of
other Persons,
if any, stored on the premises;
(iii) it is damaged, defective or obsolete, or it constitutes
furnishings,
parts, fixtures or is affixed to Real Property, unless such
Equipment is affixed
to the Mortgaged Real Property listed on Schedule 1.01(e);
(iv)
Collateral Agent has not received evidence of the property or
casualty
insurance required by this Agreement with respect to such
Equipment;
(v)
it is subject to a lease with any Person (other than a Borrower or
a
Borrowing Base Guarantor, provided, that the Lien on and security
interest in
the related lease shall be granted to the Collateral Agent and
Collateral Agent
shall have received all control agreements and instruments and all
actions shall
be taken as reasonably requested by the Collateral Agent to perfect
the
Collateral Agent's security interest in such lease); or
(vi)
it is located at an owned location subject to a mortgage in favor
of a
lender other than the Collateral Agent (unless a reasonably
satisfactory
mortgagee waiver has been delivered
17
<PAGE>
to the Collateral Agent) or the removal of which is subject to
restrictions
relating to financing arrangement, including any industrial revenue
bond
financing.
"ELIGIBLE INVENTORY" shall mean, subject to adjustment as set forth
in
Section 2.19(b), items of Inventory of the Borrower and a Borrowing
Base
Guarantor.
"ELIGIBLE REAL PROPERTY" shall mean the Real Properties which (a)
are
located at (i) 101 Pleasant Valley Boulevard, Altoona, Pennsylvania
16603 (Blair
County) owned in fee simple by Borrower, (ii) 1453 South
Washington, DuQuoin,
Illinois 62832 (Perry County) owned in fee simple by Borrower,
(iii) 1381
By-Pass North, Lawrenceburg, Kentucky 40342 (Anderson County) owned
in fee
simple by Intermediate Holdings, (iv) Three Carol Drive, Lincoln,
Rhode Island
2865 (Town of Lincoln) owned in fee simple by General Cable LLC,
(v) Highway 27
West, Malvern, Arkansas 72105 owned in fee simple by Borrower, (vi)
P.O. Box
430, US Highway 80, Marshall, Texas 75688 (Harrison County), owned
in fee simple
by Borrower, (vii) 4 Tesseneer Drive, Highland Heights, Kentucky
41076,
improvements to which are owned by Intermediate Holdings and which
is subject to
that certain Amended and Restated Ground Lease with Option to
Purchase, dated
July 26, 1992, between Northern Kentucky University Foundation,
Inc., a Kentucky
non-profit corporation and General Cable Technologies (by
assignments from
Holdings), (viii) 345 McGregor Street, Manchester, New Hampshire
03102, owned in
fee simple by Borrower, (ix) 1600 West Main Street, Willimantic,
Connecticut
06226. owned in fee simple by Borrower, (x) 440 East 8th Street,
Marion, Indiana
46953, owned in fee simple by Borrower and (xi) 19 Bobrick Drive,
Jackson,
Tennessee 38305, owned in fee simple by Borrower or (b) are owned
by Borrower or
a Borrowing Base Guarantor and designated from time to time by
the
Administrative Agent as being Eligible Real Property, provided,
that with
respect to each such parcel of Eligible Real Property, each of the
improvements
thereon is acceptable to the Administrative Agent in its reasonable
credit
judgment for lending purposes and each of which, without limiting
such
reasonable credit judgment, meets, or continues to meet, the
following
requirements: (i) it is subject to a first priority mortgage or
leasehold
mortgage and lien in favor of Collateral Agent, (ii) it is owned by
the Borrower
and applicable Borrowing Base Guarantor free and clear of all liens
and rights
of any other Person, except the mortgage or leasehold mortgage and
lien in favor
of Collateral Agent and Permitted Liens which are subordinate to
such mortgage
liens of the Collateral Agent, (iii) it does not breach any of
the
representations or warranties pertaining to such property set forth
in this
Agreement or the other Loan Documents, (iv) it is covered by title
insurance
with respect to the Lien of Collateral Agent and casualty and
property insurance
reasonably acceptable to the Collateral Agent, (v) it is appraised
by an
independent appraisal or audit firm designated by Collateral Agent
and
reasonably acceptable to Borrower and (vi) it is the subject of an
environmental
report reasonably acceptable to Collateral Agent.
"ENVIRONMENT" shall mean ambient air, surface water and
groundwater
(including, without limitation, potable water, navigable water and
wetlands),
the land surface or subsurface strata, natural resources, the
workplace or as
otherwise defined in any Environmental Law.
"ENVIRONMENTAL CLAIM" shall mean any claim, notice, demand, order,
action,
suit, proceeding or other communication in each case alleging
liability for
investigation, remediation, removal, cleanup, response, corrective
action,
damages to natural resources, personal injury, Property damage,
fines, penalties
or other costs resulting from, related to or arising out of (i)
the
18
<PAGE>
presence, Release or threatened Release in or into the Environment
of Hazardous
Material at any location or (ii) any violation of Environmental
Law, and shall
include, without limitation, any claim seeking damages,
contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting
from, related to or arising out of the presence, Release or
threatened Release
of Hazardous Material or alleged injury or threat of injury to
health, safety,
the Environment.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and
future
treaties, laws, statutes, ordinances, regulations, rules, decrees,
orders,
judgments, consent orders, consent decrees or other binding
requirements, and
the common law, relating to protection of public health or the
Environment, the
Release or threatened Release of Hazardous Material, natural
resources or
natural resource damages, or occupational safety or health.
"ENVIRONMENTAL PERMIT" shall mean any permit, license, approval,
consent or
other authorization required by or from a Governmental Authority
under
Environmental Law.
"EQUIPMENT" shall mean, as to any Person, all of such Person's now
owned
and hereafter acquired equipment, wherever located, including
machinery, data
processing and computer equipment (whether owned or licensed and
including
embedded software), vehicles, tools, furniture, fixtures, all
attachments,
accessions and property now or hereafter affixed thereto or used in
connection
therewith, and substitutions and replacements thereof, wherever
located.
"EQUITY FINANCING" shall mean the offering of Convertible Preferred
Stock
by Holdings on or prior to the Original Closing Date in an amount
not less than
$90.0 million and offering of New Common Stock on or prior to the
Original
Closing Date in an amount of not less than $41.0 million.
"EQUITY FINANCING DOCUMENTS" shall mean the applicable
Confidential
Information Memoranda and any other documents pursuant to which the
Convertible
Preferred Stock and New Common Stock are issued and all other
documents,
instruments or agreements executed and delivered with respect to
the Convertible
Preferred Stock or the New Common Stock.
"EQUITY INTEREST" shall mean, with respect to any Person, any and
all
shares, interests, participations or other equivalents, including
membership
interests (however designated, whether voting or non-voting), of
equity of such
Person, including, if such Person is a partnership, partnership
interests
(whether general or limited) and any other interest or
participation that
confers on a Person the right to receive a share of the profits and
losses of,
or distributions of assets of, such partnership, whether
outstanding on, or
issued after, the Original Closing Date, but excluding debt
securities
convertible or exchangeable into such equity.
"EQUITY ISSUANCE" shall mean, without duplication, any issuance or
sale
after the Original Closing Date of (a) any Equity Interests
(including any
Equity Interests issued upon exercise of any warrant or option) or
any warrants
or options to purchase Equity Interests or (b) any other security
or instrument
representing an Equity Interest (or the right to obtain any Equity
Interest) in
the issuing or selling Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
the same may be amended from time to time.
19
<PAGE>
"ERISA AFFILIATE" shall mean any trade or business (whether or
not
incorporated) that, together with Borrower, is treated as a single
employer
under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302
of ERISA and Section 412 of the Code, is treated as a single
employer under
Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event," as such term
is
defined in Section 4043(c) of ERISA or the regulations issued
thereunder, with
respect to a Plan (other than an event for which the 30-day notice
period is
waived by regulation); (b) the existence with respect to any Plan
of an
"accumulated funding deficiency" (as defined in Section 412 of the
Code or
Section 302 of ERISA), whether or not waived, the failure to make
by its due
date a required installment under Section 412(m) of the Code with
respect to any
Plan or the failure to make any required contribution to a
Multiemployer Plan;
(c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA
of an application for a waiver of the minimum funding standard with
respect to
any Plan; (d) the incurrence by any Company or any of its ERISA
Affiliates of
any liability under Title IV of ERISA with respect to the
termination of any
Plan; (e) the receipt by any Company or any of its ERISA Affiliates
from the
PBGC or a plan administrator of any notice relating to the
intention to
terminate any Plan or Plans or to appoint a trustee to administer
any Plan, or
the occurrence of any event or condition which could reasonably be
expected to
constitute grounds under ERISA for the termination of, or the
appointment of a
trustee to administer, any Plan; (f) the incurrence by any Company
or any of its
ERISA Affiliates of any liability with respect to the withdrawal
from any Plan
or Multiemployer Plan; (g) the receipt by any Company or its ERISA
Affiliates of
any notice, concerning the imposition of Withdrawal Liability or a
determination
that a Multiemployer Plan is, or is expected to be, insolvent or
in
reorganization, within the meaning of Title IV of ERISA; (h) the
making of any
amendment to any Plan which could result in the imposition of a
lien or the
posting of a bond or other security; and (i) the occurrence of a
nonexempt
prohibited transaction (within the meaning of Section 4975 of the
Code or
Section 406 of ERISA) which could result in liability to any
Company.
"EURO", "EURO" "EUROS" or "EUR" shall mean the single currency
of
Participating Member States.
"EURODOLLAR REVOLVING BORROWING" shall mean a Borrowing comprised
of
Eurodollar Revolving Loans.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest
at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with
the provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article
VIII.
"EXCESS AVAILABILITY" shall mean, as of any date of determination,
(a) the
lesser of (i) the Revolving Commitments of all of the Lenders on
the date of
determination and (ii) the Borrowing Base on the date of
determination less (b)
all outstanding Loans and LC Exposure on the date of determination
less (c) in
Collateral Agent's reasonable discretion, the aggregate amount of
all the
outstanding and unpaid trade payables and other obligations of
Borrower and/or
its Borrowing Base Guarantors which are not paid within 60 days
past the due
date
20
<PAGE>
according to their original terms of sale, in each case as of such
date of
determination less (d) in Collateral Agent's reasonable discretion,
the amount
of checks issued by Borrower and/or its Borrowing Base Guarantors
to pay trade
payables and other obligations which are not paid within 60 days
past the due
date according to their original terms of sale, in each case as of
such date of
determination, but which either have not yet been sent or are
subject to other
arrangements which are expected to delay the prompt presentation of
such checks
for payment.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCLUDED TAXES" shall mean, with respect to the Administrative
Agent, any
Lender, the Issuing Bank or any other recipient of any payment to
be made by or
on account of any obligation of Borrower hereunder, (a) income or
franchise
taxes imposed on (or measured by) its net income by the United
States, or by the
jurisdiction under the laws of which such recipient is organized or
in which its
principal office is located or, in the case of any Lender, in which
its
applicable lending office is located, and (b) in the case of a
Foreign Lender
(other than an assignee pursuant to a request by Borrower under
Section 2.16),
any withholding tax that is imposed on amounts payable to such
Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or
designates a
new lending office) or is attributable to such Foreign Lender's
failure to
comply with Section 2.15(e), except to the extent that such Foreign
Lender (or
its assignor, if any) was entitled, at the time of designation of a
new lending
office (or assignment), to receive additional amounts from Borrower
with respect
to such withholding tax pursuant to Section 2.15(a) (it being
understood and
agreed, for the avoidance of doubt, that any withholding tax
imposed on a
Foreign Lender as a result of a Change in Law or regulation or
interpretation
thereof occurring after the time such Foreign Lender became a party
to this
Agreement shall not be an Excluded Tax).
"EXISTING ABR BORROWINGS" shall mean all ABR Borrowings advanced
under the
Original Credit Agreement or the Prior Credit Agreement and
outstanding on the
Closing Date.
"EXISTING EURODOLLAR REVOLVING BORROWINGS" shall mean all
Eurodollar
Revolving Borrowings advanced under the Original Credit Agreement
or the Prior
Credit Agreement and outstanding on the Closing Date.
"EXISTING OBLIGATIONS" shall mean the "Obligations", as defined in
the
Prior Credit Agreement.
"EXITING LENDER" shall have the meaning assigned to such term in
Article
XII.
"FAIR MARKET VALUE" shall mean, with respect any asset, the price
(after
taking into account any liabilities relating to such assets) which
could be
negotiated in an arm's length free market transaction, for cash,
between a
willing seller and a willing and able buyer, neither of which is
under any
compulsion to complete the transaction.
"FALV AMORTIZATION FACTOR" shall mean 1 minus a fraction, the
numerator of
which is the number of calendar quarters elapsed as of any date of
determination
since December 31, 2005 (but in no event more than 28) and the
denominator of
which is 28.
21
<PAGE>
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, 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 on the
next succeeding Business Day by the Federal Reserve Bank of New
York, or, if
such rate is not so published for any day that is a Business Day,
the average of
the quotations for the day for such transactions received by the
Administrative
Agent from three federal funds brokers of recognized standing
selected by it.
"FEE
LETTER" shall mean that certain letter, dated as of the date
hereof,
among Borrower and Merrill with respect to certain Fees to be paid
from time to
time by Borrower to Merrill.
"FEES" shall mean the Commitment Fees, the Administrative Agent
Fees, the
Collateral Agent Fees, the LC Participation Fees, the Fronting Fees
and any and
all fees payable to pursuant to this Agreement or any of the other
Loan
Documents.
"FINANCIAL OFFICER" of any Person shall mean the Chief Financial
Officer,
principal accounting officer, Treasurer or Controller of such
Person.
"FIRREA" shall mean the Federal Institutions Reform, Recovery
and
Enforcement Act of 1989.
"FIRST AMENDMENT TO PRIOR CREDIT AGREEMENT EFFECTIVE DATE" shall
mean June
13, 2005.
"FIXED ASSET LOAN VALUE" shall mean an amount equal to the sum of
(a) the
advance rate of 80% of the appraised net orderly liquidation value
of the
Eligible Equipment of the Person owning such Eligible Equipment
plus (b) the
advance rate of 60% of the appraised fair market value of the
Eligible Real
Property of the Person owning such Eligible Real Property. The
appraised net
orderly liquidation value of Eligible Equipment and the appraised
fair market
value of Eligible Real Property are set forth on Schedule 1.01(d),
as Schedule
1.01(d) may be amended from time to time as provided herein. The
Fixed Asset
Loan Value of Borrower and each of the Borrowing Base Guarantors as
of the
Closing Date is $59,822,144. If any Eligible Equipment or Eligible
Real Property
listed on Schedule 1.01(d) is sold, liquidated or otherwise ceases
to be
Eligible Equipment or Eligible Real Property, the calculation of
the Fixed Asset
Loan Value of the Person who owns such Eligible Equipment or
Eligible Real
Property shall be reduced by 80% of the appraised net orderly
liquidation value
of such Eligible Equipment or 60% of the appraised fair market
value of such
Eligible Real Property and such Eligible Equipment and Eligible
Real Property
shall be deleted from Schedule 1.01(d) and Collateral Agent
shall
correspondingly amend Schedule 1.01(d) without any further action
of any party
hereto. At the request of Borrower, the Administrative Agent may
consider adding
Eligible Equipment and/or Eligible Real Property to Schedule
1.01(d), and if the
Administrative Agent determines that the requested Eligible
Equipment and
Eligible Real Property is to be added to Schedule 1.01(d), then,
upon completion
of appraisals satisfactory to Administrative Agent conducted at
Borrower's cost
and expense, the appraised net orderly net orderly liquidation
value of any
additional Eligible Equipment or the appraised fair market value of
any
additional Eligible Real Property shall be included in the
calculation of the
Fixed Asset Loan Value of the Person who owns such Eligible
Equipment or
Eligible Real Property and such Eligible Equipment and
22
<PAGE>
Eligible Real Property shall be added to Schedule 1.01(d) and
Administrative
Agent shall correspondingly amend Schedule 1.01(d) without any
further action of
any party hereto.
"FOREIGN" shall mean, as to any Person, a Person which is not
created or
organized under the laws of the United States, any of its States or
the District
of Columbia, or Canada, or any Province thereof.
"FOREIGN CREDIT LINES" shall mean any and all committed or
uncommitted
credit lines and invoice, commercial paper or draft discounting and
other
similar credit facilities of Foreign Subsidiaries from banks or
other financial
institutions which are currently or may in the future become
available for such
Foreign Subsidiaries, other than any such lines or facilities the
utilization of
which require that the relevant Foreign Subsidiaries satisfy
conditions which
cannot currently be met; the amount of any Foreign Credit Line
shall refer to
the maximum amount that can currently be outstanding to the
respective Foreign
Subsidiaries under such lines or facilities, including, without
limitation, the
face amount of letters of credit and contingent obligations with
respect to
guaranties and similar obligations issued in relation or pursuant
thereto.
"FOREIGN GUARANTY" shall mean the Canadian Guaranty.
"FOREIGN LENDER" shall mean any Lender that is not, for United
States
federal income tax purposes, (i) a citizen or resident of the
United States,
(ii) a corporation or entity treated as a corporation created or
organized in or
under the laws of the United States, or any political subdivision
thereof, (iii)
an estate the income of which is subject to U.S. federal income
taxation
regardless of its source or (iv) a trust if a court within the
United States is
able to exercise primary supervision over the administration of
such trust and
one or more United States Persons have the authority to control all
substantial
decisions of such trust.
"FOREIGN PLAN" shall mean any employee benefit plan, program,
policy,
arrangement or agreement maintained or contributed to by any
Foreign Company
with respect to employees employed outside the United States.
"FOREIGN PLEDGE AGREEMENTS" shall mean those certain agreements,
dated as
of the Original Closing Date, (a) by Borrower pledging 65% of
Equity Interests
in General Cable Property Holdings Limited, governed by Jersey law,
(b) by
Intermediate Holdings pledging 65% of Equity Interests in General
Cable
Investments, SGPS SA, governed by Madeira law, (c) by Intermediate
Holdings
pledging 65% of Equity Interests in General Cable Holdings
Netherlands C.V.,
governed by the law of the Netherlands, (d) by Intermediate
Holdings pledging
65% of Equity Interests in General Cable Holdings (UK) Limited,
governed by
English law, (e) by Borrower pledging 65% of Equity Interests in
General Cable
Services Limited, governed by English law, (f) by Intermediate
Holdings pledging
65% of Equity Interests in General Cable de Mexico del Norte SA de
CV, governed
by Mexican law, (g) by Borrower pledging 65% of Equity Interests in
General
Cable Holdings de Mexico SA de CV, governed by Mexican law, and (h)
by
Intermediate Holdings pledging 65% of Equity Interests in General
Cable Holdings
(Spain) SRL, governed by Spanish law, in each case in favor of the
Collateral
Agent and in each case as the same may from time to time be
modified, amended,
extended or reaffirmed in accordance with the terms hereof and with
the consent
of Collateral Agent.
23
<PAGE>
"FRONTING FEES" shall have the meaning assigned to such term in
Section
2.05(c).
"GAAP" shall mean generally accepted accounting principles in the
United
States applied on a consistent basis.
"GCC
SPAIN ACQUISITION" shall mean the acquisition by General Cable
Spain
of the wire and cable manufacturing business of SAFRAN, S.A.
"GCC
SPAIN ACQUISITION INTERCOMPANY DEBT" shall mean the unsecured
Indebtedness owing by General Cable Spain to Borrower in the
principal amount of
the Dollar Equivalent of up to $20.0 million by reason of an
intercompany
advance made by Borrower to General Cable Spain to finance a
portion of the cost
of the GCC Spain Acquisition.
"GCC
SPAIN INTERCOMPANY DEBT" shall mean the GCC Spain Acquisition
Intercompany Debt, the GCC Spain Pre-Closing Intercompany Debt, the
GCC Spain
Post-Closing Intercompany Debt and the GCC Spain Refinancing
Intercompany Debt,
each to the extent permitted by Section 6.01(i) and Section
6.04.
"GCC
SPAIN POST-CLOSING INTERCOMPANY DEBT" shall mean the unsecured
Indebtedness owing by General Cable Spain to Borrower in the
principal amount of
the Dollar Equivalent of up to $1.0 million by reason of
intercompany advances
made by Borrower to General Cable Spain after the Original Closing
Date (but
excluding the GCC Spain Acquisition Intercompany Debt).
"GCC
SPAIN PRE-CLOSING INTERCOMPANY DEBT" shall mean the unsecured
Indebtedness owing by General Cable Spain Holdings to Holdings in
the principal
amount of the Dollar Equivalent of $35.0 million by reason of
intercompany
advances made by Holdings to General Cable Spain Holdings prior to
the Original
Closing Date.
"GCC
SPAIN REFINANCING INTERCOMPANY DEBT" shall mean the unsecured
Indebtedness owing by General Cable Spain Holdings to Holdings
arising due to
repayment in full of obligations of General Cable Spain Holdings
under the
applicable agreements listed on Schedule 1.01(b) with the proceeds
of an
intercompany advance made by Holdings to General Cable Spain
Holdings on or
before the Original Closing Date in anticipation of the
Refinancing.
"GENERAL CABLE CANADA" shall mean General Cable Company, a Nova
Scotia
corporation.
"GENERAL CABLE LLC" shall mean General Cable Industries, LLC, a
Delaware
limited liability company.
"GENERAL CABLE SPAIN" shall mean Grupo General Cable Sistemas,
S.A., a
Spanish corporation.
24
<PAGE>
"GENERAL CABLE SPAIN HOLDINGS" shall mean General Cable Holdings
(Spain),
SRL, a Spanish limited liability company.
"GENERAL CABLE TECHNOLOGIES" shall mean General Cable Technologies
Corp., a
Delaware corporation.
"GENERAL CABLE TEXAS" shall mean General Cable Texas Operations
L.P., a
Delaware limited partnership.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign
court, central bank or governmental agency, authority,
instrumentality or
regulatory body.
"GOVERNMENTAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall mean
any
Requirement of Law of any Governmental Authority requiring
notification of the
buyer, lessee, mortgagee, assignee or other transferee of any Real
Property,
facility, establishment or business, or notification, registration
or filing to
or with any Governmental Authority, in connection with the sale,
lease,
mortgage, assignment or other transfer (including, without
limitation, any
transfer of control) of any Real Property, facility, establishment
or business,
of the actual or threatened presence or Release in or into the
Environment, or
the use, disposal or handling of Hazardous Material on, at, under
or near the
Real Property, facility, establishment or business to be sold,
leased,
mortgaged, assigned or transferred.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such
term in
Section 7.01.
"GUARANTEES" shall mean the
guarantees issued pursuant to Article VII and
Foreign Guaranties.
"GUARANTOR" shall mean each Borrowing Base Guarantor, each
Domestic
Subsidiary listed on Schedule 1.01(c), General Cable Canada Ltd.,
an Ontario
corporation, and each other Subsidiary that is or becomes a party
to this
Agreement pursuant to Section 5.11.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances;
hazardous wastes; polychlorinated biphenyls ("PCBS") or any
substance or
compound containing PCBs; asbestos or any asbestos-containing
materials in any
form or condition; radon or any other radioactive materials
including any
source, special nuclear or by-product material; petroleum, crude
oil or any
fraction thereof; and any other pollutant or contaminant or
hazardous, toxic or
dangerous chemicals, wastes, materials, compounds, constituents or
substances,
as all such terms are used in their broadest sense and defined by
or under any
Environmental Laws.
"HEDGING AGREEMENT" shall mean any Interest Rate Protection
Agreement,
foreign currency exchange agreement, commodity price protection
agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"HEDGING RESERVE" shall mean a Reserve determined by the Collateral
Agent
in its reasonable credit judgment and giving effect to the
aggregate amount
owing by Borrower or the applicable Borrowing Base Guarantor to a
counterparty
to a Specified Hedging Agreement, less the amount such
counter-party owes
Borrower or the applicable Borrowing Base Guarantor, as applicable,
thereunder,
less the aggregate amount of Property pledged to cash collateralize
such
obligation (other than the Collateral granted under the Loan
Documents), in each
case based on a mark-to-market analysis and with due regard to
recent market
volatility as of the last Business
25
<PAGE>
Day of the month (or if not available, the nearest prior Business
Day for which
such evaluation is available).
"HOLDING COMPANIES" shall mean Holdings, Intermediate Holdings,
Marathon
Manufacturing Holdings, Inc., a Delaware corporation, General Cable
Management,
LLC, a Delaware limited liability company and General Cable
Overseas Holdings,
Inc., a Delaware corporation, General Cable Investments, SGPS SA, a
Madeira
corporation, General Cable Holdings de Mexico SA de CV, a Mexican
corporation,
General Cable Holdings New Zealand, a New Zealand corporation,
General Cable
Holdings (Spain) SRL, a Spanish corporation, General Cable Holdings
Netherlands
C.V., a Dutch corporation, and General Cable Holdings (UK) Limited,
an English
corporation.
"HOLDINGS" shall mean General Cable Corporation, a Delaware
corporation.
"INACTIVE SUBSIDIARIES" shall mean Genca Corporation, a
Delaware
corporation, Diversified Contractors, Inc., a Delaware corporation,
MLTC
Company, a Delaware corporation, Marathon Steel Company, an Arizona
corporation,
General Cable Canada Ltd., an Ontario corporation, General Cable
Property
Holdings Limited, a Jersey corporation, General Cable Service
Limited, organized
under the laws of England and Wales and General Cable Export Sales
Corporation,
a Barbados corporation.
"INCORPORATED BORROWING BASE" shall mean at any time, for each
Borrowing
Base Guarantor, subject to adjustment as provided in Section 2.19,
an amount
equal to the lesser of :
(a)
the sum of, without duplication:
(i) the book value of Eligible Accounts of such Borrowing Base
Guarantor multiplied by the advance rate of 85%, plus
(ii) the lesser of (A) the advance rate of 60% of the Cost of
Eligible
Inventory of such Borrowing Base Guarantor, or (B) the advance rate
of 85% of
the Net Recovery Cost Percentage multiplied by the Cost of Eligible
Inventory of
such Borrowing Base Guarantor, plus
(iii) if and to the extent Borrower's Fixed Asset Loan Value
included
in the Borrowing Base is less than $50.0 million, the Fixed Asset
Loan Value of
such Borrowing Base Guarantor multiplied by the FALV Amortization
Factor;
provided, that the aggregate of the Fixed Asset Loan Values of
Borrower and the
Borrowing Base Guarantors included in the Borrowing Base shall in
no event
exceed $50.0 million, minus
(iv) in the case of the Incorporated Borrowing Base of General
Cable
Canada, the Canadian Priority Payment Reserve, or
(b)
with respect to all Borrowing Base Guarantors except for
Holdings,
Intermediate Holdings and General Cable Canada, the applicable
Borrowing Base
Guarantor Intercompany Loan Account.
"INDEBTEDNESS" of any Person shall mean, without duplication, (a)
all
obligations of such Person for borrowed money or advances; (b) all
obligations
of such Person evidenced by bonds,
26
<PAGE>
debentures, notes or similar instruments; (c) all obligations of
such Person
upon which interest charges are customarily paid or accrued; (d)
all obligations
of such Person under conditional sale or other title retention
agreements
relating to Property purchased by such Person; (e) all obligations
of such
Person issued or assumed as the deferred purchase price of Property
or services
(excluding trade accounts payable and accrued obligations incurred
in the
ordinary course of business on normal trade terms and not overdue
by more than
90 days); (f) all Indebtedness of others secured by (or for which
the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured
by) any Lien on Property owned or acquired by such Person, whether
or not the
obligations secured thereby have been assumed; (g) all Capital
Lease
Obligations, Purchase Money Obligations and synthetic lease
obligations of such
Person; (h) all obligations of such Person in respect of Hedging
Agreements to
the extent required to be reflected on a balance sheet of such
Person; (i) all
Attributable Indebtedness of such Person; (j) all obligations for
the
reimbursement of any obligor in respect of letters of credit,
letters of
guaranty, bankers' acceptances and similar credit transactions; and
(k) all
Contingent Obligations of such Person in respect of Indebtedness or
obligations
of others of the kinds referred to in clauses (a) through (j)
above. The
Indebtedness of any Person shall include the Indebtedness of any
other entity
(including any partnership in which such Person is a general
partner) to the
extent such Person is liable therefor as a result of such Person's
ownership
interest in or other relationship with such entity, except to the
extent that
terms of such Indebtedness provide that such Person is not liable
therefor. For
the avoidance of doubt, the reclassification of the Convertible
Preferred Stock
pursuant to SFAS 150 or otherwise in accordance with GAAP shall not
be deemed to
be Indebtedness hereunder.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in
Section
11.03(b).
"INDUCED CONVERSION PAYMENTS" shall mean (a) a cash premium, (b)
cash
payments made in lieu of issuing any fractional shares of the
common stock of
Holdings, (c) Restricted Payments with respect to Convertible
Preferred Stock of
Holdings for the portion of the quarterly dividend period
commencing with the
date of the Restricted Payments with respect to such Convertible
Preferred Stock
made for the most recent quarter dividend period and ending on the
date of the
conversion referred to below and (d) related fees and expenses, to
be paid by
Holdings to the holders of its Convertible Preferred Stock as an
inducement to
such holders to elect to convert such Convertible Preferred Stock
into shares of
the common stock of Holdings prior to the earliest date on which
Holdings may
redeem such Convertible Preferred Stock as further described in the
Form S-4
filed by Holdings with the SEC in November 9, 2005 (a true and
correct copy of
which has been made available to the Administrative Agent and the
Lenders);
provided that the aggregate amount of such payments shall not
exceed $23.0
million.
"INFORMATION" shall have the meaning assigned to such term in
Section
11.12.
"INSTRUMENTS" shall mean all "instruments," as such term is defined
in the
UCC as in effect on the date hereof in the State of New York, in
which any
Person now or hereafter has rights.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to such
term in
Section 3.05(c).
27
<PAGE>
"INTERCOMPANY AGREEMENTS" shall mean the agreements listed on
Schedule
1.01(f), each as in effect on the Original Closing Date.
"INTEREST ELECTION REQUEST" shall mean a request by Borrower to
convert or
continue a Revolving Borrowing in accordance with Section 2.08(b),
substantially
in the form of Exhibit D.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR
Revolving
Loan, the last day of each March, June, September and December
during the period
that such Revolving Loan is outstanding and the Maturity Date of
such Revolving
Loan, (b) with respect to any Eurodollar Revolving Loan, the last
day of the
Interest Period applicable to the Borrowing of which such Revolving
Loan is a
part and, in the case of a Eurodollar Revolving Loan with an
Interest Period of
more than three months' duration, each day prior to the last day of
such
Interest Period that occurs at intervals of three months' duration
after the
first day of such Interest Period, and (c) with respect to any
Swingline Loan,
the day that such Swingline Loan is required to be repaid.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Revolving
Borrowing, the period commencing on the date of such Revolving
Borrowing and
ending on the numerically corresponding day in the calendar month
that is one,
two, three or six months thereafter, as Borrower may elect;
provided, that (a)
if any Interest Period would end on a day other than a Business
Day, such
Interest Period shall be extended to the next succeeding Business
Day unless
such next succeeding Business Day would fall in the next calendar
month, in
which case such Interest Period shall end on the next preceding
Business Day and
(b) any Interest Period that commences on the last Business Day of
a calendar
month (or on a day for which there is no numerically corresponding
day in the
last calendar month of such Interest Period) shall end on the last
Business Day
of the last calendar month of such Interest Period. For purposes
hereof, the
date of a Revolving Borrowing initially shall be the date on which
such
Revolving Borrowing is made and thereafter shall be the effective
date of the
most recent conversion or continuation of such Revolving Borrowing;
provided,
however, that an Interest Period shall be limited to one month to
the extent
required under Section 2.03(e).
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate
swap
agreement, interest rate cap agreement, interest rate collar
agreement or
similar agreement or arrangement entered into by Holdings, Borrower
or any of
their Subsidiaries.
"INTERMEDIATE HOLDINGS" shall mean GK Technologies, Incorporated, a
New
Jersey corporation.
"INVENTORY" shall mean all "inventory," as such term is defined in
the UCC
as in effect on the date hereof in the State of New York, wherever
located, in
which any Person now or hereafter has rights.
"INVENTORY APPRAISAL" shall mean (a) on the Original Closing Date,
the
report prepared by DoveBid Valuation Services, Inc. dated October
27, 2003 and
(b) thereafter, the most recent inventory appraisal conducted by an
independent
appraisal firm designated by Collateral Agent and reasonably
acceptable to
Borrower and delivered pursuant to Section 9.02 hereof.
28
<PAGE>
"INVESTMENT GRADE ACCOUNT DEBTOR" means an Account Debtor whose
unsecured
long term debt is rated "BBB-" or better by Standard & Poor's
Ratings Services,
a division of the McGraw-Hill Companies, Inc. and "Baa3" or better
by Moody's
Investor's Services, Inc.
"INVESTMENTS" shall have the meaning assigned to such term in
Section 6.04.
"ISSUING BANK" shall mean, as the context may require, (a) UBS with
respect
to Letters of Credit issued by it prior to the Closing Date; (b)
Merrill Lynch
Bank with respect to Letters of Credit issued by it, (c) any other
Lender that
may become an Issuing Bank pursuant to Section 2.18(i), with
respect to Letters
of Credit issued by such Lender; or (d) collectively, all of the
foregoing.
"ITA" shall mean the Income Tax Act (Canada) as the same may, from
time to
time, be in effect.
"JOINDER AGREEMENT" shall mean that certain joinder agreement
substantially
in the form of Exhibit E.
"JOINT VENTURE" means a Person in which one or more Persons other
than any
Company own 50% or more of Equity Interests.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section
11.16(a).
"LANDLORD LIEN WAIVER AND ACCESS AGREEMENT" shall mean the Landlord
Lien
Waiver and Access Agreement, substantially in the form of Exhibit
F.
"LC
COMMITMENT" shall mean the commitment of the Issuing Bank to
issue
Letters of Credit pursuant to Section 2.18.
"LC
DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing
Bank pursuant to a Letter of Credit.
"LC
EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn
amount of all outstanding Letters of Credit at such time plus (b)
the aggregate
principal amount of all LC Disbursements that have not yet been
reimbursed at
such time. The LC Exposure of any Revolving Lender at any time
shall mean its
Pro Rata Percentage of the aggregate LC Exposure at such time.
"LC
PARTICIPATION FEE" shall have the meaning assigned to such term
in
Section 2.05(c).
"LC
REQUEST" shall mean a request by Borrower in accordance with the
terms
of Section 2.18(b) and substantially in the form of Exhibit A-3, or
such other
form as shall be approved by the Administrative Agent.
"LEASES" shall mean any and all leases, subleases, tenancies,
options,
concession agreements, rental agreements, occupancy agreements,
franchise
agreements, access agreements and any other agreements (including
all
amendments, extensions, replacements, renewals, modifications
and/or guarantees
thereof), whether or not of record and whether now in existence
29
<PAGE>
or hereafter entered into, affecting the use or occupancy of all or
any portion
of any Real Property.
"LENDER ADDENDUM" shall mean with respect to any Lender on the
Closing
Date, a Lender Addendum in the form of Exhibit A-4, executed and
delivered by
such Lender on the Original Closing Date, the First Amendment
Effective Date or
the Closing Date, as applicable, as provided in Section 11.14.
"LENDER AFFILIATE" shall mean with respect to any Lender that is a
fund
that invests in bank loans, any other fund that invests in
commercial loans and
is managed or advised by the same investment advisor as such Lender
or by an
Affiliate of such advisor.
"LENDERS" shall mean (a) the financial institutions that have
become a
party hereto pursuant to a Lender Addendum (other than any such
financial
institution that has ceased to be a party hereto pursuant to an
Assignment and
Acceptance) and (b) any financial institution that has become a
party hereto
pursuant to an Assignment and Acceptance. Unless the context
clearly indicates
otherwise, the term "Lenders" shall include the Swingline
Lender.
"LETTER OF CREDIT" shall mean any (i) Standby Letter of Credit and
(ii)
Commercial Letter of Credit, in each case, issued or to be issued
by an Issuing
Bank for the account of Borrower pursuant to Section 2.18 of this
Agreement or
pursuant to Section 2.18 of the Original Credit Agreement or the
Prior Credit
Agreement.
"LETTER OF CREDIT EXPIRATION DATE" shall mean the date which is
ten
Business Days prior to the Maturity Date.
"LIBOR RATE" shall
mean, with respect to any Eurodollar Revolving Borrowing
for any Interest Period therefor, a rate per annum (rounded
upwards, if
necessary, to the nearest 1/100 of 1%) equal to the rate of
interest which is
identified and normally published by Bloomberg Professional Service
Page BBAM 1
as the offered rate for loans in United States dollars for the
applicable
Interest Period under the caption British Bankers Association LIBOR
Rates as of
11:00 a.m. (London time), on the second full Business Day next
preceding the
first day of such Interest Period. If Bloomberg Professional
Service no longer
reports the LIBOR Rate or if such index no longer exists or if Page
BBAM 1 no
longer exists, the Administrative Agent may select a reasonably
comparable
replacement index or replacement page, as the case may be.
"LIEN" shall mean, with respect to any Property, (a) any mortgage,
deed of
trust, lien, pledge, encumbrance, claim, charge, assignment,
hypothecation,
security interest or encumbrance of any kind, any other type of
preferential
arrangement in respect of such Property or any filing of any
financing statement
under the UCC or any other similar notice of Lien under any similar
notice or
recording statute of any Governmental Authority, including any
easement,
right-of-way or other encumbrance on title to Real Property, in
each of the
foregoing cases whether voluntary or imposed by law, and any
agreement to give
any of the foregoing; (b) the interest of a vendor or a lessor
under any
conditional sale agreement, capital lease or title retention
agreement (or any
financing lease having substantially the same economic effect as
any of the
foregoing) relating to such Property; and (c) in the case of
securities, any
purchase option, call or similar right of a third party with
respect to such
securities.
30
<PAGE>
"LINE RESERVE" shall mean a reserve established against the
Commitments to
reflect the amount of the Commitments which are not available to
the Borrower
due to the establishment of a Reinvestment Reserve.
"LOAN DOCUMENTS" shall mean this Agreement, any Borrowing Base
Certificate,
the Letters of Credit, the Notes (if any), the Security Documents,
the Fee
Letter and each Specified Hedging Agreement entered into with any
counterparty
that was a Lender or an Affiliate of a Lender at the time such
Hedging Agreement
was entered into.
"LOAN PARTIES" shall mean Borrower and Guarantors.
"LOANS" shall mean advances made to or at the instructions of
Borrower
pursuant to Article II hereof or pursuant to Article II of the
Prior Credit
Agreement and may constitute a Revolving Loan or a Swingline
Loan.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation
U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a material adverse effect
on the
business, Property, results of operations, prospects or condition,
financial or
otherwise, or material agreements of Borrower and the Subsidiaries,
taken as a
whole; (b) material impairment of the ability of any Borrower,
Borrowing Base
Guarantor or any other Guarantor that is not a Holding Company or
an Inactive
Subsidiary to fully and timely perform any of their obligations
under any Loan
Document, (c) material impairment of the ability of any Guarantor
other than
Guarantors described in clause (b) above to fully and timely
perform any of
their obligations under any Security Document; (d) material
impairment of the
ability of Guarantors other than Guarantors described in clause (b)
above, when
such Guarantors are taken as a whole, to fully and timely perform
any of their
obligations under any Guarantees; (e) material impairment of the
rights of or
benefits or remedies available to the Lenders or the Collateral
Agent under any
Loan Document; or (f) a material adverse effect on the Collateral
or the Liens
in favor of the Collateral Agent (for its benefit and for the
benefit of the
other Secured Parties) on the Collateral or the priority of such
Liens.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the
Loans and
Letters of Credit), or obligations in respect of one or more
Hedging Agreements,
of any Loan Party evidencing an aggregate outstanding principal
amount exceeding
$3.0 million. For purposes of determining Material Indebtedness,
the "principal
amount" of the obligations of such Loan Party in respect of any
Hedging
Agreement at any time shall be the maximum aggregate amount (giving
effect to
any netting agreements) that such Loan Party would be required to
pay if such
Hedging Agreement were terminated at such time.
"MATURITY DATE" shall mean August 15, 2010.
"MAXIMUM RATE" shall have the meaning assigned to such term in
Section
11.13.
"MERRILL" shall have the meaning assigned to such term in the
preamble
hereto.
"MORTGAGE" shall mean an agreement, including, but not limited to,
a
mortgage, deed of trust or any other document, creating and
evidencing a Lien on
a Mortgaged Real Property,
31
<PAGE>
which shall be in substantially in the form of Exhibit G, with such
schedules
and including such provisions as shall be necessary to conform such
document to
applicable local or foreign law or as shall be customary under
applicable local
or foreign law, as the same may from time to time be modified,
amended, extended
or reaffirmed in accordance with the terms hereof and with the
consent of
Collateral Agent.
"MORTGAGED REAL PROPERTY" shall mean (a) each Real Property
identified on
Schedule 1.01(a) hereto and (b) each Real Property, if any, which
shall be
subject to a Mortgage delivered after the Original Closing Date
pursuant to
Section 5.11(d) or pursuant to Section 5.11(d) of the Original
Credit Agreement
or the Prior Credit Agreement.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within the
meaning of
Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any
Company or any
ERISA Affiliate is then making or accruing an obligation to make
contributions;
(b) to which any Company or any ERISA Affiliate has within the
preceding five
plan years made contributions; or (c) with respect to which any
Company could
incur liability.
"NET
CASH PROCEEDS" shall mean:
(a) with respect to any Asset Sale, the cash proceeds received by
any
Loan
Party (including cash proceeds subsequently received (as and
when
received by any Loan Party) in respect of noncash consideration
initially
received) net of (i) selling expenses (including reasonable
brokers' fees
or
commissions, legal, accounting and other professional and
transactional
fees, transfer and similar taxes and Borrower's good faith estimate
of
income taxes paid or payable in connection with such sale); (ii)
amounts
provided as a reserve, in accordance with GAAP, against any
liabilities
under any indemnification obligations associated with such Asset
Sale
(provided, that, to the extent and at the time any such amounts
are
released from such reserve, such amounts shall constitute Net
Cash
Proceeds); (iii) Borrower's good faith estimate of payments
required to be
made
with respect to unassumed liabilities relating to the assets
sold
within 90 days of such Asset Sale (provided, that, to the extent
such cash
proceeds are not used to make payments in respect of such
unassumed
liabilities within 90 days of such Asset Sale, such cash proceeds
shall
constitute Net Cash Proceeds); and (iv) the principal amount,
premium or
penalty, if any, interest and other amounts on any Indebtedness
for
borrowed money which is secured by a senior Lien on the asset sold
in such
Asset Sale and which is repaid with such proceeds (other than any
such
Indebtedness assumed by the purchaser of such asset);
(b) with respect to any Debt Issuance, the cash proceeds thereof,
net
of
customary fees (including discounts to underwriters), commissions,
costs
and
other expenses incurred in connection therewith; and
(c) with respect to any Casualty Event, the cash insurance
proceeds,
condemnation awards and other compensation received in respect
thereof, net
of
all reasonable costs and expenses incurred in connection with
the
collection of such proceeds, awards or other compensation in
respect of
such Casualty Event
and net of amounts which are secured by any senior Lien
(to
the extent such Liens constitute
32
<PAGE>
Permitted Lien hereunder) on the applicable Property and which is
paid with
such proceeds.
"NEW
COMMON STOCK" shall mean up to 5,807,500 shares of common stock
of
Holdings, par value $0.01 per share (of which 5,050,000 are issued
on the
Original Closing Date) issued pursuant to the applicable
Confidential
Information Memorandum.
"NET
RECOVERY COST PERCENTAGE" shall mean the fraction, expressed as
a
percentage, (a) the numerator of which is the amount equal to the
recovery on
the aggregate amount of the Inventory at such time on a "net
orderly liquidation
value" basis as set forth in the most recent Inventory Appraisal
received by
Collateral Agent in accordance with Section 9.02, net of operating
expenses,
liquidation expenses and commissions reasonably anticipated in the
disposition
of such assets, and (b) the denominator of which is the original
Cost of the
aggregate amount of the Inventory subject to appraisal.
"NOTES" shall mean any notes evidencing the Revolving Loans or
Swingline
Loans issued pursuant to this Agreement, if any, substantially in
the form of
Exhibit H-1 or H-2, as the case may be.
"OBLIGATION CURRENCY" shall have the meaning assigned to such term
in
Section 11.16(a).
"OBLIGATIONS" shall mean Existing Obligations and (a) obligations
of
Borrower and any and all of the other Loan Parties from time to
time arising
under or in respect of the due and punctual payment of (i) the
principal of and
premium, if any, and interest (including interest accruing during
the pendency
of any bankruptcy, insolvency, receivership or other similar
proceeding,
regardless of whether allowed or allowable in such proceeding) on
the Loans,
when and as due, whether at maturity, by acceleration, upon one or
more dates
set for prepayment or otherwise, (ii) each payment required to be
made by
Borrower and any and all of the other Loan Parties under this
Agreement in
respect of any Letter of Credit, when and as due, including
payments in respect
of reimbursement of disbursements, interest thereon and obligations
to provide
cash collateral and (iii) all other monetary obligations, including
fees, costs,
expenses and indemnities, whether primary, secondary, direct,
contingent, fixed
or otherwise (including monetary obligations incurred during the
pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of
whether allowed or allowable in such proceeding), of Borrower and
any and all of
the other Loan Parties under this Agreement and the other Loan
Documents, (b)
the due and punctual performance of all covenants, agreements,
obligations and
liabilities of Borrower and each Loan Party under or pursuant to
this Agreement
and the other Loan Documents, (c) the due and punctual payment and
performance
of all obligations of Borrower and any and all of the other Loan
Parties under
each Specified Hedging Agreement entered into with any counterparty
that is a
Lender or an Affiliate of a Lender or was a Lender or an Affiliate
of a Lender
at the time such Specified Hedging Agreement was entered into, and
(d) the due
and punctual payment and performance of all obligations in respect
of overdrafts
and related liabilities owed to any Lender, any Affiliate of a
Lender, the
Administrative Agent or the Collateral Agent arising from treasury,
depositary
and cash management services or in connection with any automated
clearinghouse
transfer of funds.
33
<PAGE>
"OFFICERS' CERTIFICATE" shall mean a certificate executed by the
Chairman
of the Board (if an officer), the Chief Executive Officer, the
President, one of
the Financial Officers, each in his or her official (and not
individual)
capacity.
"ORIGINAL CLOSING DATE" shall mean November 24, 2003.
"ORIGINAL CREDIT AGREEMENT" shall mean the Credit Agreement, dated
as of
November 24, 2003, among the Borrower and certain parties hereto,
as amended,
supplemented or otherwise modified prior to the PRIOR CLOSING
DATE.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary
taxes or any other excise or Property taxes, charges or similar
levies
(including interest, fines, penalties and additions to tax) arising
from any
payment made or required to be made under any Loan Document or from
the
execution, delivery or enforcement of, or otherwise with respect
to, any Loan
Document.
"OVERADVANCE" shall have the meaning assigned to such term in
Section
10.10.
"OZARK ACCOUNT(S)" shall mean those certain Account(s) with Ozark
Auto
Purchasing LLC as the Account Debtor owing to Borrower, any other
Borrowing Base
Guarantor, or any Subsidiary thereof.
"PARTICIPANT" shall have the meaning assigned to such term in
Section
11.04(e).
"PARTICIPATING MEMBER STATE" shall mean any member state which
adopts the
euro unit of the single currency pursuant to the Treaty.
"PAYMENT ACCOUNT" means the account specified on the signature
pages hereof
into which all payments by or on behalf of the Borrower to the
Administrative
Agent under this Agreement shall be made, or such other account as
the
Administrative Agent shall from time to time specify by notice to
the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and
defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit
I-1 or any other form approved by the Collateral Agent, as the same
shall be
supplemented from time to time by a Perfection Certificate
Supplement or
otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in
the form of Exhibit I-2 or any other form approved by the
Collateral Agent.
"PERMITTED ACQUISITION" shall mean Permitted Loan Funded
Acquisition,
Permitted Non-Loan Funded Acquisition, or either of them.
"PERMITTED ASSET SALE" shall mean, any Asset Sale made, directly
or
indirectly, by Borrower or any Loan Party which meets each of the
following
conditions:
34
<PAGE>
(a)
no Default then exists or would result therefrom;
(b)
Borrower or such Loan Party, as the case may be, receives
consideration
at the time of such Asset Sale at least equal to the Fair Market
Value of the
assets sold or otherwise disposed of;
(c)
at least 75% of such consideration received by Borrower or such
Loan
Party consists of (i) cash or Cash Equivalents, (ii) assets (other
than
securities) to be used in a business of a same or substantially
similar type as
that conducted by Borrower and the Subsidiaries on the Original
Closing Date or
(iii) a combination of cash, Cash Equivalents and such assets
described in
clause (c)(ii) above; and
(d)
in the case of any Permitted Asset Sale made by any Domestic
and
Canadian Loan Party, the Collateral Agent has reasonably determined
the Fixed
Asset Loan Value of any assets included in the Borrowing Base being
sold and
made the appropriate adjustments to the Borrowing Base to reflect
such Asset
Sale and following such adjustment, Borrower is in compliance with
Section
6.08(c).
"PERMITTED FIXED ASSET EXCHANGE" shall mean, with respect to any
Equipment
or Real Property (the "RELINQUISHED FIXED ASSET") of any Company,
an exchange by
such Company, in a transaction or series of related transactions
simultaneously
or substantially simultaneously consummated, of the Relinquished
Fixed Asset for
one or more items of Equipment or Real Property (the "REPLACED
FIXED ASSET") of
any Person which is useful in the conduct of such Company's
business and which
meets each of the following conditions:
(a) no Default then exists or would result therefrom;
(b) is an exchange consummated pursuant to agreements, instruments
and
documents which are submitted for review to the Collateral Agent
and the
Administrative Agent no less than ten (10) Business Days prior to
the
consummation of such exchange and which are reasonably satisfactory
in the
reasonable credit judgment of the Administrative Agent as to form
and
substance;
(c) is an exchange of a Relinquished Fixed Asset located in the
United
States or Canada owned by a Domestic or Canadian Company for
Replaced Fixed
Assets located in the United States or Canada or is an exchange of
a
Relinquished Fixed Asset located outside the United State and
Canada owned
by a
Foreign Company for Replaced Fixed Assets located outside the
United
States or Canada;
(d) is an exchange of a Relinquished Fixed Asset the Exchange
Fair
Market Value of which, when added to the Exchange Fair Market Value
of all
Relinquished Fixed Assets exchanged in Permitted Fixed Asset
Exchanges
since the Original Closing Date, does not exceed the U.S. Dollar
Equivalent
of
$75.0 million in the aggregate;
(e) the Borrower shall have certified to the Collateral Agent and
the
Administration Agent the Exchange Fair Market Values of both
the
Relinquished Fixed Assets and the Replaced Fixed Assets; and
35
<PAGE>
(f) if a Relinquished Fixed Asset is a part of the Collateral,
it
shall be exchanged for Replaced Fixed Assets with respect to which,
at the
closing of any Permitted Fixed Asset Exchange, the Collateral Agent
will be
granted a first priority perfected Lien (subject to Permitted Liens
under
Sections 6.02(a), (b), (d) and (g)) pursuant to such documents and
by such
actions being taken as may be reasonably required by the Collateral
Agent,
and
if a Relinquished Fixed Asset is Eligible Equipment or Eligible
Real
Property, (i) the Replaced Fixed Assets shall also constitute
Eligible
Equipment or Eligible
Real Property, as the case may be, as determined by
the
Collateral Agent in the Collateral Agent's reasonable credit
judgment
and
(ii) the Collateral Agent shall determine the Fixed Asset Loan
Value of
the
Replaced Fixed Asset (including any Reserves which will be
associated
therewith) and the Fixed Asset Loan Value of the Relinquished Fixed
Assets;
provided, however, that to the extent (A) the Exchange Fair Market
Value of
the
Replaced Fixed Assets is less than the Exchange Fair Market Value
of
the
Relinquished Fixed Assets and/or (B) the Fixed Asset Loan Value of
the
Replaced Fixed Assets (after giving effect to any Reserves which
will be
associated therewith) determined under clause (f)(ii) above is less
than
the
Fixed Asset Loan Value of the Relinquished Fixed Assets
determined
under clause (f)(ii) above (after giving effect to any Reserves to
be
released as a result of the disposition of such Property), Borrower
shall
immediately prepay the
Obligations (without reduction in Commitments) in
the
amount equal to the greater of the difference obtained in clause
(A) or
clause (B) of this proviso as if such amount constituted Net Cash
Proceeds
of
an Asset Sale.
For
the purposes of this definition, "Exchange Fair Market Value"
shall
mean Fair Market Value; provided, however, that the Fair Market
Value of any
Relinquished Fixed Asset or any Replaced Fixed Asset in excess of
$1.0 million
but less than $5.0 million shall be determined conclusively by the
board of
directors of Borrower (or a duly authorized committee thereof)
acting in good
faith and shall be evidenced by a resolution of such board of
directors
delivered to the Administrative Agent and the Collateral Agent; and
provided,
further, however, that the Fair Market Value of any Relinquished
Fixed Asset or
any Replaced Fixed Asset in excess of $5.0 million shall be
determined by the
board of directors of the Borrower as provided in the immediately
preceding
proviso, whose determination, however, shall not be conclusive but
which shall
be supported by an appraisal as may be requested the Collateral
Agent or the
Administrative Agent, at the expense of the Borrower, by an
independent,
third-party appraiser designated by the Collateral Agent and
reasonably
acceptable to the Borrower.
"PERMITTED LIENS" shall have the meaning assigned to such term in
Section
6.02.
"PERMITTED LOAN FUNDED ACQUISITION" shall mean, with respect to
Borrower or
any Borrowing Base Guarantor other than Holdings or Intermediate
Holdings, any
transaction or series of related transactions for the direct or
indirect (a)
acquisition of all or substantially all of the Property of any
other Person, or
of any business, product line or division of any other Person; (b)
acquisition
of in excess of 50% of the Equity Interests of any other Person, or
otherwise
causing any other Person to become a Subsidiary of such Person; or
(c) merger or
consolidation or any other combination with any other Person (so
long as the
Borrower or a Borrowing Base
36
<PAGE>
Guarantor is the surviving entity), if each of the following
conditions are met,
as reasonably determined by the Administrative Agent:
(i) no
Default then exists or would result therefrom;
(ii) after giving effect to such acquisition on a Pro Forma Basis,
(A)
Borrower shall be in compliance with the financial covenant set
forth in
Section 6.08 (to the extent such covenant is then applicable) as of
the
most
recent Test Period (assuming, for purposes of Section 6.08, that
such
acquisition, and all other Permitted Loan Funded Acquisitions
consummated
since the first day of the relevant Test Period for the financial
covenant
set
forth in Section 6.08 ending on or prior to the date of such
acquisition, had occurred on the first day of such relevant Test
Period),
(B)
the Companies can reasonably be expected to remain in compliance
with
such
covenant through the Maturity Date and to have sufficient cash
liquidity to conduct their business and pay their respective debts
and
other liabilities as they come due and (C) average daily Excess
Availability for the 90-day period preceding the consummation of
such
acquisition would have exceeded $50.0 million on a Pro Forma Basis
(after
giving effect to such acquisition and the Revolving Loans funded
in
connection therewith as if made on the first day of such period)
and the
projections in connection with the proposed acquisition (based
upon
historical financial data of a recent date reasonably satisfactory
to
Administrative Agent, taking into account the proposed acquisition)
shall
reflect that average daily Excess Availability of $50.0 million
shall
continue for at least 1 year after the consummation of such
acquisition.
(iii) no Company shall, in connection with any such
acquisition,
assume or remain liable with respect to any Indebtedness or other
liability
(including any material tax or ERISA liability) of the related
seller,
except (A) to the extent permitted under Section 6.01, and (B)
obligations
of
the seller incurred in the ordinary course of business and
necessary or
desirable to the continued operation of the underlying properties,
and any
other such liabilities or obligations not permitted to be assumed
or
otherwise supported by any Company hereunder shall be paid in full
or
released as to the assets being so acquired on or before the
consummation
of
such acquisition;
(iv) the acquired Person shall be engaged in a business of a same
or
substantially similar type as that conducted by Borrower and
the
Subsidiaries on the Original Closing Date and the Property acquired
in
connection with any such acquisition shall be made subject to the
Lien of
the
Security Documents and shall be free and clear of any Liens, other
than
Permitted Liens;
(v) Collateral Agent shall have received (except with respect to
asset
acquisitions) the Joinder Agreement from the acquired Person,
joinder
agreement to the Security Documents in the form annexed thereto and
such
other supplemental agreements, blocked account agreements and
other
agreements, instruments and documents in connection therewith as
reasonably
requested by the Collateral Agent together with all opinions,
certificates,
lien
search results and other documents, agreements, instruments and
reasonably requested by the Collateral Agent, all in form and
substance
reasonably satisfactory to the Collateral Agent;
37
<PAGE>
(vi) the board of directors or other similar governing body of
the
acquired Person shall not have indicated publicly its opposition to
the
consummation of such acquisition;
(vii) with respect to any acquisition involving Acquisition
Consideration of more than $1.0 million, Borrower shall have
provided the
Administrative Agent and the Lenders with (A) historical
financial
statements for the last three fiscal years of the Person or
business to be
acquired (audited if available without undue cost or delay) and
unaudited
financial statements thereof for the most recent interim period
which are
available, (B) reasonably detailed projections for the succeeding
year
pertaining to the Person or business to be acquired, (C) a
reasonably
detailed description of all material information relating thereto
and
copies of all material documentation pertaining to such
acquisition, and
(D)
all such other information and data relating to such acquisition or
the
Person or business to be acquired as may be reasonably requested by
the
Administrative Agent or the Required Lenders;
(viii) Borrower shall have delivered to the Administrative Agent,
the
Collateral Agent and the Lenders an Officers' Certificate
certifying that
(A)
such acquisition complies with this definition (which shall
have
attached thereto reasonably detailed backup data and calculations
showing
such
compliance), and (B) such acquisition could not reasonably be
expected
to
result in a Material Adverse Effect;
(ix) such acquisition shall be consensual and shall have been
approved
by
the board of directors of the Person being acquired; and
(x) the aggregate Acquisition Consideration for all Permitted
Loan
Funded Acquisitions since the Original Closing Date shall not
exceed $150.0
million; provided, that any Equity Interests constituting all or a
portion
of
Acquisition Consideration shall not have a cash dividend
requirement on
or
prior to the Maturity Date.
Notwithstanding the foregoing, the Accounts and Inventory of the
Person to
be acquired or comprising the assets to be acquired shall not be
included as
Eligible Accounts or Eligible Inventory until a field audit with
respect thereto
has been completed to the satisfaction of the Collateral Agent,
including the
establishment of Reserves required in the Collateral Agent's
reasonable credit
judgment.
"PERMITTED NON-LOAN FUNDED ACQUISITION" shall mean, with respect
to
Borrower, any Borrowing Base Guarantor, or any Foreign Subsidiary,
any
transaction or series of related transactions for the direct or
indirect (a)
acquisition (other than by Holdings) of all or substantially all of
the Property
of any other Person, or of any business, product line or division
of any other
Person; (b) acquisition of in excess of 50% of the Equity Interests
of any other
Person, or otherwise causing any other Person to become a
Subsidiary of such
Person; or (c) (i) merger or consolidation or any other combination
of the
Borrower or any of the Borrowing Base Guarantors (other than
Holdings) with any
other Person (so long as the Borrower or such Borrowing Base
Guarantor shall be
the surviving entity) or (ii) merger or consolidation or any other
combination
of any Foreign Subsidiary with any other: (A) Foreign Person which
owns assets
and operates business within the United States or Canada; provided,
that (x) the
aggregate
38
<PAGE>
fair market value of all assets within the United States or Canada
of all such
Foreign Persons acquired after the Original Closing Date do not
exceed $5.0
million and (y) all such assets shall be transferred to a Domestic
or a Canadian
Guarantor within 30 days of the consummation of the Permitted
Non-Loan Funded
Acquisition involving such Foreign Person or (B) Foreign Person
which owns
assets and operates business outside the United States and Canada
so long as, if
such Foreign Subsidiary is a Guarantor or a Foreign Subsidiary
whose Equity
Interest has been pledged and delivered to the Collateral Agent for
the benefit
of the Secured Parties, such Foreign Subsidiary is the surviving
entity, in each
case if each of the following conditions are met, as reasonably
determined by
the Administrative Agent:
(i) no
Default then exists or would result therefrom;
(ii) Acquisition Consideration consists entirely of proceeds of
an
Acquisition Debt Issuance permitted hereunder or Equity Issuance
or
entirely of a combination of cash which is provided by Foreign
Subsidiaries
and
proceeds of Acquisition Debt Issuance permitted hereunder or
Equity
Issuance;
(iii) such acquisition shall be consensual and shall have been
approved by the board of directors of the Person being acquired;
and
(iv) after giving effect to such acquisition on a Pro Forma Basis,
(A)
Borrower shall be in compliance with the financial covenant set
forth in
Section 6.08 (to the extent such covenant is then applicable) as of
the
most
recent Test Period (assuming, for purposes of Section 6.08, that
such
acquisition, and all other Permitted Non-Loan Funded
Acquisitions
consummated since the first day of the relevant Test Period for
the
financial covenant set forth in Section 6.08 ending on or prior to
the date
of
such acquisition, had occurred on the first day of such relevant
Test
Period), (B) the Companies can reasonably be expected to remain
in
compliance with such covenant through the Maturity Date and to
have
sufficient cash liquidity to conduct their business and pay
their
respective debts and other liabilities as they come due and (C)
average
daily Excess Availability for the 90-day period preceding the
consummation
of
such acquisition would have exceeded $25.0 million on a Pro Forma
basis
(after giving effect to such acquisition and the Revolving Loans
funded in
connection therewith as if made on the first day of such period)
and the
projections in connection with the proposed acquisition (based
upon
historical financial data of a recent date reasonably satisfactory
to the
Administrative Agent, taking into account the proposed acquisition)
shall
reflect that such average daily Excess Availability of $25.0
million shall
continue for at least 1 year after the consummation of such
acquisition.
"PERSON" shall mean any natural Person, corporation, business
trust, joint
venture, association, company, limited liability company,
partnership or
government, or any agency or political subdivision thereof.
"PLAN" shall mean any "employee pension benefit plan" as such term
is
defined in Section 3(2) of ERISA (other than a Multiemployer Plan)
subject to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of
ERISA which is maintained or contributed
39
<PAGE>
to by any Company or its ERISA Affiliate or with respect to which
any Company
could incur liability (including, without limitation, under Section
4069 of
ERISA).
"PNC
HEDGE AGREEMENT" shall mean that certain ISDA Master Agreement
(and
related Schedule) between General Cable Corporation and PNC Bank,
National
Association, dated as of November 5, 2001, for a notional amount of
$9.0
million, with a maturity of November 11, 2011, as amended by that
certain ISDA
Amendment to the ISDA Master Agreement dated as of November 24,
2003 and as the
same may be amended, modified or supplemented from time to
time.
"PPSA" shall mean the Personal Property Security Act as from time
to time
in effect in the Province of Nova Scotia and the regulations
thereunder, as from
time to time in effect, provided, however, if validity, attachment,
perfection
or priority of Collateral Agent's security interests in any
Collateral are
governed by the personal property security laws of any jurisdiction
in Canada
other than Nova Scotia, "PPSA" shall mean those personal property
security laws
in such other jurisdiction for the purposes of the provisions
hereof relating to
such validity, attachment, perfection or priority and for the
definitions
related to such provisions.
"PREFERRED STOCK" shall mean, with respect to any Person, any and
all
preferred or preference Equity Interests (however designated) of
such Person
whether now outstanding or issued after the Original Closing
Date.
"PRIOR CLOSING DATE" shall mean October 22, 2004.
"PRIOR CREDIT AGREEMENT" shall have the meaning assigned to such
term in
the Recitals hereto.
"PRIOR LIEN" shall have the meaning assigned to such term in the
applicable
Security Document.
"PRO
FORMA BASIS" shall mean on a basis in accordance with GAAP and
Regulation S-X under the Securities Act and otherwise reasonably
satisfactory to
the Administrative Agent.
"PRO
RATA PERCENTAGE" of any Revolving Lender at any time shall mean
the
percentage of the total Revolving Commitment represented by such
Lender's
Revolving Commitment.
"PROPERTY" shall mean any right, title or interest in or to
property or
assets of any kind whatsoever, whether real, personal or mixed and
whether
tangible or intangible and including Equity Interests or other
ownership
interests of any Person and whether now in existence or owned or
hereafter
entered into or acquired, including, without limitation, all Real
Property.
"PURCHASE MONEY OBLIGATION" shall mean, for any Person, the
obligations of
such Person in respect of Indebtedness incurred for the purpose of
financing all
or any part of the purchase price of any Property (including Equity
Interests of
any Person) or the cost of installation, construction or
improvement of any
Property or assets and any refinancing thereof; provided, however,
that such
Indebtedness is incurred within 90 days after such acquisition of
such Property
by such Person.
40
<PAGE>
"QUALIFIED CAPITAL STOCK" of any Person shall mean any capital
stock of
such Person that is not Disqualified Capital Stock.
"QUALIFIED SENIOR NOTE DOCUMENTS" shall mean the Qualified Senior
Note
Indenture and other agreement pursuant to which the Qualified
Senior Notes are
issued as contemplated by the Confidential Information Memorandum
related to
9.5% Senior Notes and all other documents executed and delivered
with respect to
the Qualified Senior Notes.
"QUALIFIED SENIOR NOTE INDENTURE" shall mean that certain
Indenture, dated
as of November 24, 2003, among Holdings, the guarantors named
therein and US
Bank National Association, as trustee, with respect to the
Qualified Senior
Notes, as in effect on the Original Closing Date.
"QUALIFIED SENIOR NOTES" shall mean Holdings' 9.5% Senior Notes due
2010
issued pursuant to the Qualified Senior Note Documents and any
registered notes
issued by Holdings in exchange for, and as contemplated by the
Notes, with
substantially identical terms as the Notes.
"REAL PROPERTY" shall mean, collectively, all right, title and
interest
(including any leasehold estate) in and to any and all parcels of
or interests
in real Property owned, leased or operated by any Person, whether
by lease,
license or other means, together with, in each case, all
easements,
hereditaments and appurtenances relating thereto, all improvements
and
appurtenant fixtures and equipment, all general intangibles and
contract rights
and other Property and rights incidental to the ownership, lease or
operation
thereof.
"REFINANCING" shall mean the repayment in full and the termination
of any
commitment to make extensions of credit under all of the
indebtedness of
Holdings and Borrower and Guarantors which was outstanding on the
Original
Closing Date, as listed on Schedule 1.01(b).
"REGISTER" shall have the meaning assigned to such term in
Section
11.04(c).
"REGULATION D" shall mean Regulation D of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION T" shall mean Regulation T of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"REINVESTMENT RESERVE" shall have the meaning assigned to such term
in
Section 2.10(g).
"RELEASE" shall mean any spilling, leaking, pumping, pouring,
emitting,
emptying, discharging, injecting, escaping, leaching, dumping,
disposing,
depositing, dispersing, emanating or migrating of any Hazardous
Material in,
into, onto or through the Environment.
41
<PAGE>
"REQUIRED LENDERS" shall mean, at any time, Lenders having more
than fifty
percent (50%) of the Revolving Commitments or, if the Revolving
Commitments have
been terminated, more than fifty percent (50%) of the sum of
Revolving Exposure.
"REQUIREMENTS OF LAW" shall mean, collectively, any and all
requirements of
any Governmental Authority including any and all laws, ordinances,
rules,
regulations or similar statutes or case law.
"RESERVES" shall mean reserves established against the Borrowing
Base that
the Collateral Agent may, in its reasonable credit judgment,
establish from time
to time and that has a reasonable relationship to the event,
condition or other
matter which is the basis for such Reserve as determined by the
Collateral Agent
in good faith. Without limiting the generality of the foregoing,
Reserves shall
include any Hedging Reserve, Reinvestment Reserve (including any
Line Reserve)
and Canadian Priority Payment Reserve.
"RESPONSE" shall mean (a) "response" as such term is defined in
CERCLA, 42
U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental
Authority or voluntarily undertaken to: (i) clean up, remove,
treat, abate or in
any other way address any Hazardous Material in the environment;
(ii) prevent
the Release or threat of Release, or minimize the further Release,
of any
Hazardous Material; or (iii) perform studies and investigations in
connection
with, or as a precondition to, clause (i) or (ii) above.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer
or Financial Officer of such corporation and any other officer or
similar
official thereof with responsibility for the administration of the
obligations
of such corporation in respect of this Agreement.
"RESTRICTED PAYMENTS" with respect to any Company shall mean (a)
a
declaration or payment of a dividend or return of any equity
capital to its
stockholders or other equity holders or authorization or the
incurrence of any
liability to make any other payment, distribution or delivery of
other Property
in respect of Equity Interest (other than common stock of such
Company) or cash
to its stockholders or other equity holders as such, (b)
redemption, retirement,
purchase, defeasance, or other acquisition, direct or indirect, for
a
consideration of any shares of any class of its capital stock or
other Equity
Interest outstanding (or any options or warrants issued by such
Person with
respect to its capital stock or other Equity Interest), or setting
aside any
funds or any payments on account of the sinking fund for any of the
foregoing
purposes, or permitting any of Subsidiaries of such Company to
purchase or
otherwise acquire for a consideration any shares of any class of
the capital
stock of such Person outstanding (or any options or warrants issued
by such
Person with respect to its capital stock), (c) any payment or
prepayment of
principal of, premium, if any, or interest, fees or other charges
on or with
respect to, and any redemption, purchase, retirement, defeasance,
sinking fund
or similar payment and any claim for rescission with respect to,
any
Indebtedness expressly subordinated as to right and time of payment
to the prior
indefeasible payment in full in cash of the Obligations (provided,
that the
Qualified Senior Notes shall not be deemed, for the purposes
hereof, to be
subordinated by reason of being unsecured), (d) any payment of a
claim for the
rescission of the purchase or sale of, or for material damages
arising from the
purchase or sale of, any Equity Interest in such Company or of a
claim for
reimbursement, indemnification or contribution arising out of or
related to any
such claim for damages or rescission and (e) any payment, loan,
contribution, or
42
<PAGE>
other transfer of funds or other Property to any stockholder or any
other equity
holder of such Company other than payment of compensation in the
ordinary course
of business to stockholders or other equity holders who are
employees of such
Company. Without limiting the foregoing, "Restricted Payments" with
respect to
any Company shall also include all payments made or required to be
made by such
Company with respect to any stock appreciation right, plan, equity
incentive or
achievement plans or any similar plans or setting aside of any
funds for the
foregoing purposes.
"REVOLVING AVAILABILITY PERIOD" shall mean the period from and
including
the Closing Date to but excluding the earlier of the Maturity Date
and the date
of termination of the Revolving Commitments.
"REVOLVING BORROWING" shall mean a Borrowing comprised of Revolving
Loans.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the
commitment, if any, of such Lender to make Revolving Loans
hereunder up to the
amount set forth on Schedule I to the Lender Addendum executed and
delivered by
such Lender, or in the Assignment and Acceptance pursuant to which
such Lender
assumed its Revolving Commitment, as applicable, as the same may be
(a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or
increased from
time to time pursuant to assignments by or to such Lender pursuant
to Section
11.04. The aggregate amount of the Lenders' Revolving Commitments
on the Closing
Date is $300.0 million.
"REVOLVING EXPOSURE" shall mean, with respect to any Lender at any
time,
the aggregate principal amount at such time of all outstanding
Revolving Loans
of such Lender, plus the aggregate amount at such time of such
Lender's LC
Exposure, plus the aggregate amount at such of such Lender's
Swingline Exposure.
"REVOLVING LENDER" shall mean a Lender with a Revolving
Commitment.
"REVOLVING LOANS" shall mean a Loan made by the Lenders to
Borrower
pursuant to Section 2.01(a).
"ROBERT BOSCH ACCOUNT(S)" shall mean those certain Accounts with
Robert
Bosch Corporation, as the Account Debtor, owing to Borrower, any
Borrowing Base
Guarantor, or any Subsidiary thereof.
"SARBANES-OXLEY ACT" shall mean the United States Sarbanes-Oxley
Act of
2002.
"SEC" shall mean the Securities and Exchange Commission of the
United
States of America.
"SECURED PARTIES" shall mean, collectively, the Administrative
Agent, the
Collateral Agent, the Lenders, Issuing Bank and each party to a
Specified Hedge
Agreement if at the date of entering into such Specified Hedging
Agreement such
Person was a Lender or an Affiliate of a Lender and such Affiliate
executes and
delivers to the Administrative Agent a letter agreement in form and
substance
acceptable to the Administrative Agent pursuant to which such
Person (i)
appoints the Collateral Agent as its agent under the applicable
Loan Documents,
(ii) agrees to
43
<PAGE>
be bound by the provisions of Section 9.05 and (iii) ratifies the
constitution
of the Collateral Agent as the holder of an irrevocable power of
attorney (fonde
de pouvoir) as provided in Section 10.01(b).
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning
assigned to
such term in the Security Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SECURITY AGREEMENT COLLATERAL" shall mean all Property pledged or
granted
as collateral pursuant to the Security Agreements delivered on the
Original
Closing Date or thereafter pursuant to Section 5.11.
"SECURITY AGREEMENT"
shall mean a Security Agreement substantially in the
form of Exhibit J among the Loan Parties and Collateral Agent for
the benefit of
the Secured Parties and Canadian Security Agreement, as the same
may from time
to time be modified, amended, extended or reaffirmed in accordance
with the
terms hereof and with the consent of Collateral Agent.
"SECURITY DOCUMENTS" shall mean the Security Agreements, the
Mortgages, the
Perfection Certificate, Foreign Guaranties, Foreign Pledge
Agreements, Canadian
Pledge Agreements and each other security document or pledge
agreement delivered
in accordance with applicable local or foreign law to grant a
valid, perfected
security interest in any Property, and all UCC or PPSA or other
financing
statements or instruments of perfection required by such Security
Documents, to
be filed with respect to the security interests in Property and
fixtures created
pursuant to such Security Documents and any other document or
instrument
utilized to pledge as collateral for the Obligations any Property
of whatever
kind or nature.
"SELLER" has the meaning assigned to such term in the first recital
hereto.
"SETTLEMENT DATE" has the meaning assigned to such term in Section
10.12.
"SPECIAL AGENT ADVANCE" shall have the meaning assigned to such
term in
Section 10.11.
"SPECIFIED FOREIGN CURRENCY HEDGING AGREEMENT" shall mean the
Hedging
Agreement and other documentation in a form and substance
reasonably acceptable
to the Administrative Agent evidencing the cross currency swap
transaction with
Holdings described in Exhibit SHA attached hereto.
"SPECIFIED HEDGING AGREEMENTS" shall mean the PNC Hedge Agreement,
the
Specified Foreign Currency Hedging Agreement or any Hedging
Agreements made or
entered into at any time, or in effect at any time (whether
heretofore or
hereafter) between Borrower or any Borrowing Base Guarantors and a
counterparty
to a Hedging Agreement reasonably satisfactory to the
Administrative Agent
(which may include any Lender hereunder or any Affiliate of such
Lender) and on
terms reasonably satisfactory to the Administrative Agent.
44
<PAGE>
"STANDBY LETTER OF CREDIT" shall mean any standby letter of credit
or
similar instrument issued for the purpose of supporting (a)
workers'
compensation liabilities of Borrower or any Borrowing Base
Guarantor, (b) the
obligations of third-party insurers of Borrower or any Borrowing
Base Guarantor
arising by virtue of the laws of any jurisdiction requiring
third-party insurers
to obtain such letters of credit, or (c) performance, payment,
deposit or surety
obligations of Borrower or any Borrowing Base Guarantor if required
by law or
governmental rule or regulation or in accordance with custom and
practice in the
industry.
"STATUTORY RESERVES" shall mean, for any Interest Period for any
Eurodollar
Revolving Borrowing, the average maximum rate at which reserves
(including any
marginal, supplemental or emergency reserves) are required to be
maintained
during such Interest Period under Regulation D by member banks of
the United
States Federal Reserve System in New York City with deposits
exceeding one
billion Dollars against "Eurodollar liabilities" (as such term is
used in
Regulation D). Eurodollar Revolving Borrowings shall be deemed to
constitute
Eurodollar liabilities and to be subject to such reserve
requirements without
benefit of or credit for proration, exceptions or offsets which may
be available
from time to time to any Lender under Regulation D.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT")
at any
date, any corporation, limited liability company, partnership,
association or
other entity the accounts of which would be consolidated with those
of the
parent in the parent's consolidated financial statements if such
financial
statements were prepared in accordance with GAAP as of such date,
as well as any
other corporation, limited liability company, partnership,
association or other
entity (a) of which securities or other ownership interests
representing more
than 50% of the ordinary voting power or, in the case of a
partnership, more
than 50% of the general partnership interests are, as of such date,
owned,
controlled or held, or (b) that is, as of such date, otherwise
Controlled, by
the parent or one or more Subsidiaries of the parent or by the
parent and one or
more Subsidiaries of the parent. Unless otherwise set forth herein,
reference in
this Agreement to "Subsidiary" shall mean Holdings' direct and
indirect
Subsidiaries.
"SUPERMAJORITY LENDERS" shall mean, at any time, Lenders having at
least
80% of the Revolving Commitments or, if the Revolving Commitments
have been
terminated, at least 80% of the sum of Revolving Exposure.
"SURVEY" shall mean a survey of any Mortgaged Real Property (and
all
improvements thereon) (i) prepared by a surveyor or engineer
licensed to perform
surveys in the state where such Mortgaged Real Property is located,
(ii) dated
(or redated) not earlier than six months prior to the date of
delivery thereof
unless there shall have occurred within six months prior to such
date of
delivery any exterior construction on the site of such Mortgaged
Real Property,
in which event such survey shall be dated (or redated) after the
completion of
such construction or if such construction shall not have been
completed as of
such date of delivery, not earlier than 20 days prior to such date
of delivery,
(iii) certified by the surveyor (in a manner reasonably acceptable
to the
Administrative Agent and the Collateral Agent) to the
Administrative Agent, the
Collateral Agent and the Title Company, (iv) complying in all
respects with the
minimum detail requirements of the American Land Title Association
as such
requirements are in effect on the date of preparation of such
survey and (v)
sufficient for the Title Company to remove all
45
<PAGE>
standard survey exceptions from the title insurance policy (or
commitment)
relating to such Mortgaged Real Property and issue the endorsements
of the type
required by Section 4.01(o)(iii).
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to
make loans pursuant to Section 2.17, as the same may be reduced
from time to
time pursuant to Section 2.07 or Section 2.17.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount
at such time of all outstanding Swingline Loans. The Swingline
Exposure of any
Revolving Lender at any time shall equal its Pro Rata Percentage of
the
aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall have the meaning assigned to such term in
the
preamble hereto.
"SWINGLINE LOAN" shall mean any Loan made by the Swingline Lender
pursuant
to Section 2.17.
"SYNDICATION AGENT" shall have the meaning assigned to such term in
the
preamble hereto.
"TAX
RETURN" shall mean all returns, statements, filings, attachments
and
other documents or certifications required to be filed in respect
of Taxes.
"TAX
SHARING AGREEMENTS" shall mean all tax sharing, tax allocation
and
other similar agreements entered into by Holdings or any Subsidiary
of Holdings.
"TAXES" shall mean (i) any and all present or future taxes, duties,
levies,
fees, imposts, assessments, deductions, withholdings or other
charges, whether
computed on a separate, consolidated, unitary, combined or other
basis and any
and all liabilities (including interest, fines, penalties or
additions to tax)
with respect to the foregoing, and (ii) any transferee, successor,
joint and
several, contractual or other liability (including, without
limitation,
liability pursuant to Treasury Regulation Section 1.1502-6 (or any
similar
provision of state, local or non-U.S. law)) in respect of any item
described in
clause (i).
"TEST PERIOD" shall mean, at
any time, the four consecutive fiscal quarters
of Borrower then last ended (in each case taken as one accounting
period) for
which financial statements have been or are required to be
delivered to the
Administrative Agent pursuant to Section 5.01(a) or (b).
"TITLE COMPANY" shall mean any title insurance company as shall be
retained
by Borrower and reasonably acceptable to the Administrative
Agent.
"TITLE POLICY" shall mean all policies issued by the Title Company
in
connection with the Prior Credit Agreement, together with
endorsements to such
policies to "bring-down" the status of title and to confirm that
such policies
continue to apply to the Mortgages and the Obligations under this
Agreement and
the Prior Credit Agreement.
46
<PAGE>
"TRANSACTION DOCUMENTS" shall mean the Equity Financing
Documents,
Qualified Senior Note Documents and the Loan Documents.
"TRANSACTIONS" shall mean, collectively, the transactions to occur
on or
prior to the Original Closing Date pursuant to the Transaction
Documents,
including (a) the execution and delivery of the Loan Documents and
the initial
borrowings hereunder; (b) the Refinancing; (c) the Equity
Financing; (d) the
execution and delivery of the Qualified Senior Note Documents and
the financing
contemplated thereunder; and (e) the payment of all fees and
expenses to be paid
on or prior to the Original Closing Date and owing in connection
with the
foregoing.
"TREASURY REGULATION" means the regulations promulgated under the
Code.
"TREATY" shall mean the treaty establishing the European Community
being
the Treaty of Rome as amended from time to time.
"TYPE," when used in reference to any Loan or Borrowing, refers to
whether
the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is
determined by reference to the Adjusted LIBOR Rate or the Alternate
Base Rate.
"UBS" shall have the meaning assigned to such term in the preamble
hereto.
"UCC" shall mean the Uniform
Commercial Code of the State of New York or of
any other state the laws of which are required to be applied in
connection with
the perfection of security interests in any Collateral.
"WHOLLY OWNED SUBSIDIARY" shall mean, as to any Person, (a) any
corporation
100% of whose capital stock (other than directors' qualifying
shares) is at the
time owned by such Person and/or one or more Wholly Owned
Subsidiaries of such
Person and (b) any partnership, association, joint venture, limited
liability
company or other entity in which such Person and/or one or more
Wholly Owned
Subsidiaries of such Person have a 100% Equity Interest at such
time. Unless
otherwise set forth herein, reference in this Agreement to "Wholly
Owned
Subsidiary" shall mean Holdings' direct and indirect Wholly Owned
Subsidiaries.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes
of this
Agreement, Loans may be classified and referred to by Class (e.g.,
a "REVOLVING
LOAN") or by Type (e.g., a "EURODOLLAR REVOLVING LOAN") or by Class
and Type
(e.g., a "EURODOLLAR REVOLVING LOAN"). Borrowings also may be
classified and
referred to by Class (e.g., a "REVOLVING BORROWING") or by Type
(e.g., a
"EURODOLLAR REVOLVING BORROWING") or by Class and Type (e.g., a
"EURODOLLAR
REVOLVING BORROWING").
SECTION 1.03 TERMS GENERALLY. The definitions of terms herein shall
apply
equally to the singular and plural forms of the terms defined.
Whenever the
context may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "INCLUDE", "INCLUDES" and
"INCLUDING" shall
be deemed to be followed by the phrase "WITHOUT
47
<PAGE>
LIMITATION". The word "WILL" shall be construed to have the same
meaning and
effect as the word "SHALL". Unless the context requires otherwise
(a) any
definition of or reference to any Loan Document, agreement,
instrument of other
document herein shall be construed as referring to such agreement,
instrument or
other document as from time to time amended, supplemented or
otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications
set forth herein), (b) any reference herein to any Person shall be
construed to
include such Person's successors and assigns, (c) the words
"HEREIN", "HEREOF"
and "HEREUNDER", and words of similar import, shall be construed to
refer to
this Agreement in its entirety and not to any particular provision
hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules
shall be
construed to refer to Articles and Sections of, and Exhibits and
Schedules to,
this Agreement, and (f) the words "ASSET" and "PROPERTY" shall be
construed to
have the same meaning and effect and to refer to any and all
tangible and
intangible assets and properties, including cash, securities,
accounts and
contract rights.
SECTION 1.04 ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided
herein, all financial statements to be delivered pursuant to this
Agreement
shall be prepared in accordance with GAAP as in effect from time to
time and all
terms of an accounting or financial nature shall be construed in
accordance with
GAAP, as in effect on the date hereof unless agreed to by Borrower
and the
Required Lenders. In the event that any "Accounting Change" (as
defined below)
shall occur and such change results in a change in the method of
calculation of
financial covenants, standards or terms in this Agreement, then the
Borrower and
the Administrative Agent agree to enter into negotiations in order
to amend such
provisions of this Agreement so as to equitably reflect such
Accounting Changes
with the desired result that the criteria for evaluating the
Borrower's
financial condition shall be the same after such Accounting Changes
as if such
Accounting Changes had not been made. Until such time as such an
amendment shall
have been executed and delivered by the Borrower and the Required
Lenders, all
financial covenants, standards and terms in this Agreement shall
continue to be
calculated or construed as if such Accounting Changes had not
occurred.
"ACCOUNTING CHANGES" refers to changes in accounting principles
required by the
promulgation of any rule, regulation, pronouncement or opinion by
the Financial
Accounting Standards Board of the American Institute of Certified
Public
Accountants or, if applicable, the Securities and Exchange
Commission (or
successors thereto or agencies with similar functions).
ARTICLE II.
THE CREDITS
SECTION 2.01 COMMITMENTS. Subject to the terms and conditions and
relying
upon the representations and warranties herein set forth, each
Revolving Lender
agrees, severally and not jointly:
(a)
to make Revolving Loans to Borrower, at any time and from time to
time
after the Closing Date until the earlier of one Business Day prior
to the
Maturity Date and the termination of the Revolving Commitment of
such Lender in
accordance with the terms hereof, in an aggregate principal amount
at any time
outstanding that will not (subject to provisions of Sections 10.10
and 10.11)
result in such Lender's Revolving Exposure exceeding the lesser of
(A) such
Lender's Revolving Commitment less such Lender's Pro Rata
Percentage of any Line
48
<PAGE>
Reserve and (B) such Lender's Pro Rata Percentage multiplied by the
Borrowing
Base then in effect.
(b)
Within the limits set forth in clause (a) above and subject to
the
terms, conditions and limitations set forth herein, Borrower may
borrow, pay or
prepay and reborrow Revolving Loans.
SECTION 2.02 LOANS. (a) Each Loan (other than Swingline Loans)
shall be
made as part of a Borrowing consisting of Loans made by the Lenders
ratably in
accordance with their applicable Commitments; provided, that the
failure of any
Lender to make any Loan shall not in itself relieve any other
Lender of its
obligation to lend hereunder (it being understood, however, that no
Lender shall
be responsible for the failure of any other Lender to make any Loan
required to
be made by such other Lender). Except for Loans deemed made
pursuant to Sections
2.02(f) or 2.02(g), Loans (other than Swingline Loans) comprising
any Borrowing
shall be in an aggregate principal amount that is (i) in the case
of ABR Loans,
integral multiples of $1.0 million and not less than $5.0 million
or (B) in the
case of Eurodollar Revolving Loans, an integral multiple of $1.0
million and not
less than $5.0 million or (ii) equal to the remaining available
balance of the
applicable Revolving Commitments.
(b)
Subject to Sections 2.11 and 2.12, each Borrowing shall be
comprised
entirely of ABR Loans or Eurodollar Revolving Loans as Borrower may
request
pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar
Revolving Loan by causing any domestic or foreign branch or
Affiliate of such
Lender to make such Loan; provided, that any exercise of such
option shall not
affect the obligation of Borrower to repay such Loan in accordance
with the
terms of this Agreement. Borrowings of more than one Type may be
outstanding at
the same time; provided further that Borrower shall not be entitled
to request
any Borrowing that, if made, would result in more than six
Eurodollar Revolving
Borrowings outstanding hereunder at any one time. For purposes of
the foregoing,
Borrowings having different Interest Periods, regardless of whether
they
commence on the same date, shall be considered separate
Borrowings.
(c)
Subject to the settlement provisions of Section 10.12, each
Lender
shall make each Loan (other than Swingline Loans) to be made by it
hereunder on
the proposed date thereof by wire transfer of immediately available
funds to the
Payment Account, or to such other account as the Administrative
Agent may
designate from time to time, not later than 2:00 p.m., New York
City time, and,
except with respect to Loans deemed made pursuant to Sections
2.02(f) or
2.02(g), the Administrative Agent shall promptly credit the amounts
so received,
in like funds, to an account as directed by Borrower in the
applicable Borrowing
Request or, if a Borrowing shall not occur on such date because any
condition
precedent herein specified shall not have been met, return the
amounts so
received to the respective Lenders.
(d)
Unless the Administrative Agent shall have received notice from
a
Lender prior to the date of any Borrowing that such Lender will not
make
available to the Administrative Agent such Lender's portion of such
Borrowing,
the Administrative Agent may assume that such Lender has made such
portion
available to the Administrative Agent on the date of such Borrowing
in
accordance with paragraph (c) above, and the Administrative Agent
may, in
reliance upon such assumption, make available to Borrower on such
date a
corresponding amount. If the Administrative Agent shall have so
made funds
available then, to the extent that
49
<PAGE>
such Lender shall not have made such portion available to the
Administrative
Agent, such Lender and Borrower severally agree to repay to the
Administrative
Agent forthwith on demand such corresponding amount together with
interest
thereon, for each day from the date such amount is made available
to Borrower
until the date such amount is repaid to the Administrative Agent at
(i) in the
case of Borrower, the interest rate applicable at the time to the
Loans
comprising such Borrowing and (ii) in the case of such Lender, a
rate determined
by the Administrative Agent to represent its cost of overnight or
short-term
funds (which determination shall be conclusive absent manifest
error). If such
Lender shall repay to the Administrative Agent such corresponding
amount, such
amount shall constitute such Lender's Loan as part of such
Borrowing for
purposes of this Agreement.
(e)
Notwithstanding any other provision of this Agreement, Borrower
shall
not be entitled to request, or to elect to convert or continue, any
Borrowing if
the Interest Period requested with respect thereto would end after
the Maturity
Date.
(f)
If the Issuing Bank shall not have received from Borrower the
payment
required to be made by Section 2.18(e) within the time specified in
such
Section, the Issuing Bank will promptly notify the Administrative
Agent of the
LC Disbursement and the Administrative Agent will promptly notify
each Revolving
Lender of such LC Disbursement and its Pro Rata Percentage thereof.
Subject to
the settlement provisions of Section 10.12, each Revolving Lender
shall pay by
wire transfer of immediately available funds to the Administrative
Agent on such
date (or, if such Revolving Lender shall have received such notice
later than
1:00 p.m., New York City time, on any day, not later than 1:00
p.m., New York
City time, on the immediately following Business Day), an amount
equal to such
Lender's Pro Rata Percentage of such LC Disbursement (it being
understood that
such amount shall be deemed to constitute an ABR Revolving Loan of
such Lender,
and such payment shall be deemed to have reduced the LC Exposure),
and the
Administrative Agent will promptly pay to the Issuing Bank amounts
so received
by it from the Revolving Lenders. The Administrative Agent will
promptly pay to
the Issuing Bank any amounts received by it from Borrower pursuant
to Section
2.18(e) prior to the time that any Revolving Lender makes any
payment pursuant
to this paragraph (f); any such amounts received by the
Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to
the
Revolving Lenders that shall have made such payments and to the
Issuing Bank, as
their interests may appear. If any Revolving Lender shall not have
made its Pro
Rata Percentage of such LC Disbursement available to the
Administrative Agent as
provided above, such Lender and Borrower severally agree to pay
interest on such
amount, for each day from and including the date such amount is
required to be
paid in accordance with this paragraph (f) to but excluding the
date such amount
is paid, to the Administrative Agent for the account of the Issuing
Bank at (i)
in the case of Borrower, a rate per annum equal to the interest
rate applicable
to Revolving Loans pursuant to Section 2.06(a), and (ii) in the
case of such
Lender, for the first such day, the Federal Funds Effective Rate,
and for each
day thereafter, the Alternate Base Rate.
(g)
Borrower hereby authorizes the Administrative Agent to, and in its
sole
election Administrative Agent may, debit to the Revolving Loan (i)
all payments
of principal, interest and Fees and (ii) upon not less than three
Business Days'
notice to Borrower, expenses reimbursable to the Administrative
Agent and the
Collateral Agent, Lenders and Issuing Bank pursuant to
50
<PAGE>
Section 11.03 or pursuant to other Loan Documents and other sums
payable under
the Loan Documents.
SECTION 2.03 BORROWING PROCEDURE. To request a Revolving
Borrowing,
Borrower shall notify the Administrative Agent of such request by
telephone
(confirmed by telecopy or e-mail no later than one Business Day
following such
request) (i) in the case of a Eurodollar Revolving Borrowing, not
later than
1:00 p.m., New York City time, three Business Days before the date
of the
proposed Borrowing or in the case of an ABR Borrowing (other than
Swingline
Loans) not later than 1:00 p.m., New York City time, on the
Business Day of the
proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable
and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Borrowing Request in a form
approved by the
Administrative Agent and signed by Borrower. Each such telephonic
and written
Borrowing Request shall specify the following information in
compliance with
Section 2.02:
(a) whether the requested Borrowing is to be a Revolving Borrowing
or
a
Swingline Loan;
(b) the aggregate amount of such Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Revolving Borrowing;
(e) in the case of a Eurodollar Revolving Borrowing, the
initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by the definition of the term "Interest Period";
provided,
that
until the earlier of (i) the date on which the Administrative
Agent
shall have notified Borrower that the primary syndication of
the
Commitments has been completed and (ii) the date which is 180 days
after
the
Original Closing Date, the Interest Period shall be one month;
(f) the location and number of Borrower's account to which funds
are
to
be disbursed, which shall comply with the requirements of Section
2.02;
and
(g) that the conditions set forth in Section 4.02 (b)-(e) are
satisfied as of the date of the notice.
If
no election as to the Type of Borrowing is specified, then the
requested
Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with
respect to any requested Eurodollar Revolving Borrowing, then
Borrower shall be
deemed to have selected an Interest Period of one month's duration
(subject to
the proviso in clause (e) above). Promptly following receipt of a
Borrowing
Request in accordance with this Section 2.03, the Administrative
Agent shall
notify Collateral Agent of the borrowing Request, confirm with
Collateral Agent
that the funding of such Borrowing Request is in conformity with
this Section
2.03 and advise each Lender of the details thereof and of the
amount of such
Lender's Loan to be made as part of the requested Borrowing.
51
<PAGE>
SECTION 2.04 EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a) Borrower
hereby
unconditionally promises to pay (i) to the Administrative Agent for
the account
of each Revolving Lender, the then unpaid principal amount of each
Revolving
Loan of such Lender on the Maturity Date and (ii) to the Swingline
Lender the
then unpaid principal amount of each Swingline Loan on the earlier
of the
Maturity Date and the 10th day (or earlier, but, subject to
application of funds
under Section 9.01(f), at least two Business Days) after such
Swingline Loan is
made; provided, that on each date that a Revolving Borrowing is
made, Borrower
shall repay all Swingline Loans that were outstanding on the date
such Borrowing
was requested.
(b)
Each Lender shall maintain in accordance with its usual practice
an
account or accounts evidencing the indebtedness of Borrower to such
Lender
resulting from each Loan made by such Lender from time to time,
including the
amounts of principal and interest payable and paid to such Lender
from time to
time under this Agreement.
(c)
The Administrative Agent shall maintain accounts in which it
will
record (i) the amount of each Loan made hereunder, the Type and
Class thereof
and the Interest Period applicable thereto; (ii) the amount of any
principal or
interest due and payable or to become due and payable from Borrower
to each
Lender hereunder; and (iii) the amount of any sum received by the
Administrative
Agent hereunder for the account of the Lenders and each Lender's
share thereof.
The Administrative Agent shall, from time to time, advise the
Collateral Agent
of the status of such accounts to permit Collateral Agent to
determine the
Borrowing Base.
(d)
The entries made in the accounts maintained pursuant to paragraphs
(b)
and (c) above shall be prima facie evidence of the existence and
amounts of the
obligations therein recorded; provided, that the failure of any
Lender or the
Administrative Agent to maintain such accounts or any error therein
shall not in
any manner affect the obligations of Borrower to repay the Loans in
accordance
with their terms.
(e)
Any Lender may request that Loans of any Class made by it be
evidenced
by a promissory note. In such event, Borrower shall prepare,
execute and deliver
to such Lender a promissory note payable to the order of such
Lender (or, if
requested by such Lender, to such Lender and its registered
assigns) in the form
of Exhibit H-1 or H-2, as the case may be. Thereafter, the Loans
evidenced by
such promissory note and interest thereon shall at all times
(including after
assignment pursuant to Section 11.04) be represented by one or more
promissory
notes in such form payable to the order of the payee named therein
(or, if such
promissory note is a registered note, to such payee and its
registered assigns).
(f)
All funds in the Blocked Accounts (including the Concentration
Account)
shall be applied to the Loans and other Obligations in accordance
with Section
9.01 hereof.
SECTION 2.05 FEES. (a) Commitment Fee. Borrower agrees to pay to
the
Administrative Agent for the account of each Lender a commitment
fee (a
"COMMITMENT FEE"), equal to 0.25% per annum on the average daily
unused amount
of each Commitment of such Lender during the period from and
including the
Original Closing Date to but excluding the date on which such
Commitment
terminates. Accrued Commitment Fees shall be payable in arrears on
the last day
of March, June, September and December of each year and on the date
on which the
Revolving Commitments terminate, commencing on the first such date
to occur
after the
52
<PAGE>
Original Closing Date. All Commitment Fees shall be computed on the
basis of a
year of 360 days and shall be payable for the actual number of days
elapsed
(including the first day but excluding the last day). For purposes
of computing
Commitment Fees with respect to Revolving Commitments, a Revolving
Commitment of
a Lender shall be deemed to be used to the extent of the
outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of
such Lender
shall be disregarded for such purpose).
(b)
Administrative Agent Fees; Collateral Agent Fees. Borrower agrees
to
pay to the (i) the Administrative Agent, for its own account, the
administrative
fees set forth in the Fee Letter or such other fees payable in the
amounts and
at the times separately agreed upon between Borrower and the
Administrative
Agent (the "ADMINISTRATIVE AGENT FEES") and (ii) (i) Collateral
Agent, for its
own account, the collateral monitoring fee set forth in the Fee
Letter or such
other fees payable in the amounts and at the times separately
agreed upon
between Borrower and the Collateral Agent (the "COLLATERAL AGENT
FEES").
(c)
LC and Fronting Fees. Borrower agrees to pay (i) to the
Administrative
Agent for the account of each Revolving Lender a participation fee
("LC
PARTICIPATION FEE") with respect to its participations in Letters
of Credit,
which shall accrue at a rate equal to the Applicable Margin from
time to time
used to determine the interest rate on Eurodollar Revolving Loans
pursuant to
Section 2.06 on the average daily amount of such Lender's LC
Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements)
during the
period from and including the Original Closing Date to but
excluding the later
of the date on which such Lender's Revolving Commitment terminates
and the date
on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing
Bank a fronting fee ("FRONTING FEE"), which shall accrue at the
rate of 0.125%
per annum on the average daily amount of the LC Exposure (excluding
any portion
thereof attributable to unreimbursed LC Disbursements) during the
period from
and including the Original Closing Date to but excluding the later
of the date
of termination of the Revolving Commitments and the date on which
there ceases
to be any LC Exposure, as well as the Issuing Bank's standard fees
with respect
to the issuance, amendment, renewal or extension of any Letter of
Credit or
processing of drawings thereunder. Accrued LC Participation Fees
and Fronting
Fees shall be payable in arrears on the last day of March, June,
September and
December of each year, commencing on the first such date to occur
after the
Original Closing Date; provided, that all such fees shall be
payable on the date
on which the Revolving Commitments terminate and any such fees
accruing after
the date on which the Revolving Commitments terminate shall be
payable on
demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph
shall be payable within 10 days after demand. All LC Participation
Fees and
Fronting Fees shall be computed on the basis of a year of 360 days
and shall be
payable for the actual number of days elapsed (including the first
day but
excluding the last day). Following the occurrence and during the
continuance of
an Event of Default, the LC Participation Fee shall be increased to
a per annum
rate equal to 2% plus the otherwise applicable rate with respect
thereto.
(d)
All Fees shall be paid on the dates due, in immediately
available
funds, to the Administrative Agent for distribution, if and as
appropriate,
among the Lenders, except that the Fronting Fees shall be paid
directly to the
Issuing Bank. Once paid, none of the Fees shall be refundable under
any
circumstances.
53
<PAGE>
SECTION 2.06 INTEREST ON LOANS AND DEFAULT COMPENSATION. (a)
Subject to the
provisions of Section 2.06(c), the Loans comprising each ABR
Borrowing and each
Swingline Loan, shall bear interest at a rate per annum equal to
the Alternate
Base Rate plus the Applicable Margin in effect from time to
time.
(b)
Subject to the provisions of Section 2.06(c), the Loans comprising
each
Eurodollar Revolving Borrowing shall bear interest at a rate per
annum equal to
the Adjusted LIBOR Rate for the Interest Period in effect for such
Borrowing
plus the Applicable Margin in effect from time to time.
(c)
Notwithstanding the foregoing, following the occurrence and during
the
continuance of an Event of Default, all Obligations shall, upon
written notice
from the Administrative Agent, or at the election of the Required
Lenders, bear
interest, after as well as before judgment, at a per annum rate
equal to (i) in
the case of principal of any Loan, 2% plus the rate otherwise
applicable to such
Loan as provided in the preceding paragraphs of this Section 2.06,
(ii) LC
Participation Fee shall increase as provided in Section 2.05(c),
and (iii) in
the case of any other amount, 2% plus the rate applicable to ABR
Revolving Loans
as provided in paragraph (a) of this Section 2.06.
(d)
Accrued interest on each Loan shall be payable in arrears on
each
Interest Payment Date for such Loan and upon termination of the
Revolving
Commitments; provided, that (i) interest accrued pursuant to
paragraph (c) of
this Section 2.06 shall be payable on demand (provided, that,
absent demand,
such interest shall be payable on each Interest Payment Date and
upon
termination of the Revolving Commitments), (ii) in the event of any
repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving
Loan prior
to the end of the Revolving Availability Period), accrued interest
on the
principal amount repaid or prepaid shall be payable on the date of
such
repayment or prepayment and (iii) in the event of any conversion of
any
Eurodollar Revolving Loan prior to the end of the current Interest
Period
therefor, accrued interest on such Loan shall be payable on the
effective date
of such conversion.
(e)
All interest hereunder shall be computed on the basis of a year of
360
days, except that interest computed by reference to the Alternate
Base Rate
shall be computed on the basis of a year of 365 days (or 366 days
in a leap
year), and in each case shall be payable for the actual number of
days elapsed
(including the first day but excluding the last day). The
applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the
Administrative Agent
in accordance with the provisions of this Agreement and such
determination shall
be conclusive absent manifest error.
SECTION 2.07 TERMINATION AND REDUCTION OF COMMITMENTS. (a) The
Revolving
Commitments, the Swingline Commitment, and the LC Commitment shall
automatically
terminate on the Maturity Date.
(b)
Borrower may at any time terminate, or from time to time
permanently
reduce, the Commitments of any Class; provided, that (i) each
reduction of the
Commitments of any Class shall be in an amount that is an integral
multiple of
$1.0 million and not less than $5.0 million, (ii) the Commitments
shall not be
reduced to an amount less than $175.0 million and (iii) the
Commitments shall
not be terminated or reduced if, after giving effect to any
concurrent
54
<PAGE>
prepayment of the Loans in accordance with Section 2.10, the sum of
the
Revolving Exposures would exceed the aggregate amount of Revolving
Commitments,
the Swingline Exposures would exceed the Swingline Commitment or
the LC
Exposures would exceed the LC Commitment.
(c)
Borrower shall notify the Administrative Agent of any election
to
terminate or reduce the Commitments under paragraph (b) of this
Section 2.07 at
least three Business Days prior to the effective date of such
termination or
reduction, specifying such election and the effective date thereof.
Promptly
following receipt of any notice, the Administrative Agent shall
advise the
Lenders of the contents thereof. Each notice delivered by Borrower
pursuant to
this Section 2.07 shall be irrevocable. Any termination or
reduction of the
Commitments of any Class shall be permanent. Each reduction of the
Commitments
of any Class shall be made ratably among the Lenders in accordance
with their
respective Commitments of such Class.
SECTION 2.08 INTEREST ELECTIONS. (a) Each Revolving Borrowing
initially
shall be of the Type specified in the applicable Borrowing Request
and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period
as specified in such Borrowing Request. Thereafter, Borrower may
elect to
convert such Borrowing to a different Type or to continue such
Borrowing and, in
the case of a Eurodollar Revolving Borrowing, may elect Interest
Periods
therefor, all as provided in this Section 2.08. Borrower may elect
different
options with respect to different portions of the affected
Borrowing, in which
case each such portion shall be allocated ratably among the Lenders
holding the
Loans comprising such Borrowing, and the Loans comprising each such
portion
shall be considered a separate Borrowing. Notwithstanding anything
to the
contrary, Borrower shall not be entitled to request any conversion
or
continuation that, if made, would result in more than six
Eurodollar Revolving
Borrowings outstanding hereunder at any one time. This Section 2.08
shall not
apply to Swingline Loans, which may not be converted or
continued.
(b)
To make an election pursuant to this Section 2.08, Borrower
shall
notify the Administrative Agent of such election by delivery (by
telecopy or
e-mail) of a written Interest Election Request substantially in the
form of
Exhibit D by the time that a Borrowing Request would be required
under Section
2.03 if Borrower was requesting a Revolving Borrowing of the Type
resulting from
such election to be made on the effective date of such election.
Each such
Interest Election Request shall be irrevocable.
(c)
Each written Interest Election Request shall specify the
following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and,
if different options are being elected with respect to different
portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in
which case the information to be specified pursuant to clauses
(iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a
Eurodollar Revolving Borrowing; and
55
<PAGE>
(iv) if the resulting Borrowing is a Eurodollar Revolving
Borrowing,
the Interest Period to be applicable thereto after giving effect to
such
election, which shall be a period contemplated by the definition of
the term
"Interest Period"; provided, that until the earlier of (i) the date
on which the
Administrative Agent shall have notified Borrower that the primary
syndication
of the Commitments has been completed and (ii) the date which is
180 days after
the Original Closing Date, the Interest Period shall be one
month.
If any such Interest Election Request requests a Eurodollar
Revolving Borrowing
but does not specify an Interest Period, then Borrower shall be
deemed to have
selected an Interest Period of one month's duration (subject to the
proviso in
clause (iv) above).
(d)
Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details
thereof and of such
Lender's portion of each resulting Borrowing.
(e)
If an Interest Election Request with respect to a Eurodollar
Revolving
Borrowing is not timely delivered prior to the end of the Interest
Period
applicable thereto, then, unless such Borrowing is repaid as
provided herein, at
the end of such Interest Period such Borrowing shall be converted
to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default
has occurred and is continuing and the Administrative Agent, at the
request of
the Required Lenders, so notifies Borrower, then, after the
occurrence and
during the continuance of such Event of Default (i) no outstanding
Borrowing may
be converted to or continued as a Eurodollar Revolving Borrowing
and (ii) unless
repaid, each Eurodollar Revolving Borrowing shall be converted to
an ABR
Borrowing at the end of the Interest Period applicable thereto.
(f)
Each Existing ABR Borrowing outstanding on the Closing Date
shall
remain outstanding and in all respects continuing and shall be
deemed to be an
ABR Borrowing hereunder. Each Existing Eurodollar Revolving
Borrowing
outstanding on the Closing Date shall remain outstanding and in all
respects be
continuing after the Closing Date and shall be deemed to be a
Eurodollar
Revolving Borrowing hereunder, having the Interest Period that
commenced on the
date of such Existing Eurodollar Revolving Borrowing.
SECTION 2.09 [INTENTIONALLY OMITTED].
SECTION 2.10 OPTIONAL AND MANDATORY PREPAYMENTS OF LOANS.
(a)
Optional Prepayments. In addition to prepayments of Borrowings
in
accordance with Section 9.01 or Section 2.17(c) hereof, Borrower
shall have the
right at any time and from time to time to prepay any Borrowing, in
whole or in
part, subject to the requirements of this Section 2.10; provided,
that each
partial prepayment shall be in an amount that is an integral
multiple of $1.0
million and not less than $5.0 million.
(b)
Revolving Loan and Swingline Loan Prepayments.
(i) In the event of the termination of all the Revolving
Commitments,
Borrower shall, on the date of such termination, repay or prepay
all its
outstanding Revolving Borrowings and all outstanding Swingline
Loans and replace
all outstanding Letters of Credit and/or deposit an amount equal to
the LC
Exposure in the Cash Collateral Account.
56
<PAGE>
(ii) In the event of any partial reduction of the Revolving
Commitments, then (A) at or prior to the effective date of such
reduction, the
Administrative Agent shall notify Borrower and the Revolving
Lenders of the sum
of the Revolving Exposures after giving effect thereto and (B) if
the sum of the
Revolving Exposures would exceed the aggregate amount of Revolving
Commitments
after giving effect to such reduction, then Borrower shall, on the
date of such
reduction, make prepayments in accordance with Section 2.10(i) in
an amount
sufficient to eliminate such excess.
(iii) [INTENTIONALLY OMITTED.]
(iv) In the event that the sum of all Lenders' Revolving
Exposures
exceeds the Revolving Commitments then in effect (including,
without limitation,
on any date on which Dollar Equivalents are determined pursuant to
Section
11.15), the Borrower shall, without notice or demand, make
prepayments in
accordance with Section 2.10(i) in an amount sufficient to
eliminate such
excess.
(v) In the event that the aggregate LC Exposure exceeds the LC
Commitment then in effect (including, without limitation, on any
date on which
Dollar Equivalents are determined pursuant to Section 11.15), the
Borrower
shall, without notice or demand, immediately replace or cash
collateralize
outstanding Letters of Credit in accordance with the procedures set
forth in
Section 2.18(j), in an amount sufficient to eliminate such
excess.
(c)
Asset Sales. Not later than one Business Day following the receipt
of
any Net Cash Proceeds of any Asset Sale by a Loan Party, Borrower
shall, and
shall cause the applicable Loan Party (with appropriate adjustments
to any
intercompany loan account balances or Borrowing Base Guarantor
Intercompany Loan
Account balances, as applicable) to, apply 100% of the Net Cash
Proceeds
received with respect thereto to make prepayments in accordance
with Section
2.10(i); provided, that:
(i) no such prepayment shall be required with respect to (A) any
Asset
Sale permitted by Section 6.05(b)(ii), (e) or (h), (B) the
disposition of assets
subject to a condemnation or eminent domain proceeding or insurance
settlement
to the extent it does not constitute a Casualty Event, or (C) Asset
Sales for
fair market value resulting in no more than $100,000 in Net Cash
Proceeds per
Asset Sale (or series of related Asset Sales) and less than $1.0
million in Net
Cash Proceeds in any fiscal year; and
(ii) subject to Section 2.10(g) and so long as no Event of
Default
shall then exist or would arise therefrom and the aggregate of such
Net Cash
Proceeds of Asset Sales (except Asset Sales permitted under Section
6.05(b)(v))
shall not exceed $5.0 million in any fiscal year, such proceeds
shall not be
required to be so applied on such date to the extent that Borrower
shall have
delivered an Officers' Certificate to the Administrative Agent on
or prior to
such date stating that such Net Cash Proceeds shall be used by a
Loan Party to
purchase replacement assets or acquire 100% of the Equity Interests
of any
Person that owns such assets no later than 270 days following the
date of such
Asset Sale (which Officers' Certificate shall set forth the
estimates of the
proceeds to be so expended); provided, that all Property purchased
with the Net
Cash Proceeds thereof pursuant to this subsection shall be made
subject to the
Lien of the
57
<PAGE>
applicable Security Documents in favor of the Collateral Agent, for
its benefit
and for the benefit of the other Secured Parties in accordance with
Sections
5.11 and 5.12;
(d)
Debt Issuance. Upon any Debt Issuance after the Original Closing
Date
(other than Acquisition Debt Issuance), Borrower shall, and shall
cause the
other Loan Parties to, make prepayments in accordance with Sections
2.10(i) in
an aggregate principal amount equal to 100% of the Net Cash
Proceeds of such
Debt Issuance.
(e)
[INTENTIONALLY OMITTED].
(f)
Casualty Events. Not later than one Business Day following the
receipt
of any Net Cash Proceeds from a Casualty Event, Borrower shall
apply, and shall
cause other Loan Parties (with appropriate adjustments to any
intercompany loan
account balances or Borrowing Base Guarantor Intercompany Loan
Account balances,
as applicable) to apply, an amount equal to 100% of such Net Cash
Proceeds to
make prepayments in accordance with Sections 2.10(i); provided,
that subject to
Section 2.10(g) and so long as no Event of Default shall then exist
or arise
therefrom, such proceeds shall not be required to be so applied on
such date to
the extent that in the event such Net Cash Proceeds shall not
exceed $5.0
million in the aggregate at any time, Borrower shall have delivered
an Officers'
Certificate (which Officers' Certificate shall set forth the
estimates of the
proceeds to be so expended) to the Administrative Agent and the
Collateral Agent
on or prior to such date stating that such proceeds shall be used
to repair,
replace or restore any Property that is subject of a Casualty Event
no later
than 270 days following the date of receipt of such proceeds;
provided, further,
that all Property purchased with the Net Cash Proceeds thereof
pursuant to this
subsection shall be made subject to the Lien of the applicable
Security
Documents in favor of the Collateral Agent, for its benefit and for
the benefit
of the other Secured Parties in accordance with Sections 5.11 and
5.12.
(g)
In the event that Borrower has delivered an Officers' Certificate
in
accordance with Section 2.10(c)(ii) or in accordance with Section
2.10(f), (i)
both a Reserve and a Line Reserve ("REINVESTMENT RESERVE") shall be
established
(in the amount of the Net Cash Proceeds less, in the case of a
Casualty Event,
the Net Cash Proceeds attributable to lost or destroyed Inventory)
which shall
each be released simultaneously with and to the extent of any Loans
advanced to
the Borrower for the purpose of purchasing assets in accordance
with Section
2.10(c)(ii) or 2.10(f), as applicable; provided, that Borrower
submits (with the
applicable Borrowing Request) an Officer's Certificate setting
forth the use of
proceeds of the requested Loan and confirming that such use is in
compliance
with Section 2.10(c)(ii) or 2.10(f), as applicable, and (ii) in the
event that
any part or all of the Reinvestment Reserve remains in place at the
end of the
time period set forth in Section 2.10(c)(ii) or 2.10(f), as
applicable:
(A) Borrower shall, and shall cause other Loan Parties to (with
appropriate adjustments to any intercompany loan account balances
or
Borrowing Base Guarantor Intercompany Loan Account balances, as
applicable)
prepay Obligations in accordance (with a concurrent release of
such
Reinvestment Reserve) with Section 2.10(i) in the amount of such
remaining
Reinvestment Reserve without reducing Commitments, and
(B) if such Reinvestment Reserve relates to Eligible Equipment
or
Eligible Real Property, (x) such Eligible Equipment or Eligible
Real
Property shall be deleted
58
<PAGE>
from
Schedule 1.01(d) and Schedule 1.01(d) shall be amended in
accordance
with
the definition of the term "Fixed Asset Loan Value" (with
appropriate
adjustments to the Borrowing Base Guarantor Intercompany Loan
Account), and
(y)
the Fixed Asset Loan Value of the Person owning such Eligible
Equipment
or
Eligible Real Property shall be reduced by an amount equal to
the
appraised net orderly liquidation value of Eligible Equipment or
the
appraised fair market value of Eligible Real Property, as
applicable.
For
the purposes of determining whether clause (B) of this paragraph
(g)
shall apply, any Equipment located on one of the locations listed
on Schedule
1.01(e) shall be deemed Eligible Equipment and therefore clause (B)
of this
paragraph (g) shall apply with respect to such Equipment and the
amount of the
Net Cash Proceeds of such Equipment shall be deemed to be the
appraised net
orderly liquidation value thereof.
(h)
[INTENTIONALLY OMITTED.]
(i)
Application of Prepayments.
(i) Prior to any optional or mandatory prepayment of Borrowings
hereunder, Borrower shall select the Borrowing or Borrowings to be
prepaid and
shall specify such selection in the notice of such prepayment
pursuant to
paragraph (i) of this Section 2.10(i). Subject to Section 9.04 and
so long as no
Event of Default shall then exist and be continuing, all mandatory
prepayments
shall be applied as follows: first, to Fees and reimbursable
expenses of the
Administrative Agent and the Collateral Agent then due and payable
pursuant to
the Loan Documents; second, to interest then due and payable on all
Loans;
third, to the principal balance of the Swingline Loan until the
same has been
repaid in full; fourth, to the outstanding principal balance of
Revolving Loans
until the same has been paid in full, including accompanying
accrued interest
and charges under Sections 2.12, 2.13 and 2.15 (Borrower may elect
which of any
Eurodollar Revolving Borrowings is to be prepaid); fifth, to cash
collateralize
all LC Exposures plus any accrued and unpaid Fees with respect
thereto (to be
held and applied in accordance with Section 2.18(j) hereof); sixth,
to all other
Obligations pro rata in accordance with the amounts that such
Lender certifies
is outstanding; and, seventh, returned to Borrower or to such party
as otherwise
required by law. All such mandatory prepayments of the Revolving
Loans shall
cause a corresponding reduction in the Revolving Commitments of the
Lenders in
accordance with their applicable Revolving Commitments.
(ii) Amounts to be applied pursuant to this Section 2.10 to the
prepayment of Revolving Loans shall be applied, as applicable,
first to reduce
outstanding ABR Revolving Loans, respectively. Any amounts
remaining after each
such application shall be applied to prepay Eurodollar Revolving
Loans, as
applicable. Notwithstanding the foregoing, if the amount of any
prepayment of
Loans required under this Section 2.10 shall be in excess of the
amount of the
ABR Loans at the time outstanding, only the portion of the amount
of such
prepayment as is equal to the amount of such outstanding ABR Loans
shall be
immediately prepaid and, at the election of Borrower, the balance
of such
required prepayment shall be prepaid immediately, together with any
amounts
owing to the Lenders under Section 2.13.
(j)
Notice of Prepayment. Borrower shall notify the Administrative
Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by
telephone (confirmed by
59
<PAGE>
telecopy) of any prepayment hereunder (i) in the case of prepayment
of a
Eurodollar Revolving Borrowing, not later than 11:00 a.m., New York
City time,
three Business Days before the date of prepayment, (ii) in the case
of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time,
one Business Day before the date of prepayment or (iii) in the case
of
prepayment of a Swingline Loan, not later than 1:00 p.m., New York
City time, on
the date of prepayment. Each such notice shall be irrevocable and
shall specify
the prepayment date, the principal amount of each Borrowing or
portion thereof
to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed
calculation of the amount of such prepayment. Promptly following
receipt of any
such notice (other than a notice relating solely to Swingline
Loans), the
Administrative Agent shall advise the Lenders of the contents
thereof. Each
partial repayment of any Borrowing shall be in an amount that would
be permitted
in the case of an advance of a Borrowing of the same Type as
provided in Section
2.02, except as necessary to apply fully the required amount of a
mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued
interest to the extent required by Section 2.06.
SECTION 2.11 ALTERNATE RATE OF INTEREST. If prior to the
commencement of
any Interest Period for a Eurodollar Revolving Borrowing:
(a)
the Administrative Agent determines (which determination shall
be
conclusive absent manifest error) that adequate and reasonable
means do not
exist for ascertaining the Adjusted LIBOR Rate for such Interest
Period; or
(b)
the Administrative Agent is advised by the Required Lenders that
the
Adjusted LIBOR Rate for such Interest Period will not adequately
and fairly
reflect the cost to such Lenders of making or maintaining their
Loans included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to Borrower
and the
Lenders by telephone, e-mail or telecopy as promptly as practicable
thereafter
and, until the Administrative Agent notifies Borrower and the
Lenders that the
circumstances giving rise to such notice no longer exist, (i) any
Interest
Election Request that requests the conversion of any Borrowing to,
or
continuation of any Borrowing as, a Eurodollar Revolving Borrowing
shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar
Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.12 INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or
similar requirement against assets of, deposits with or for the
account of, or
credit extended by, any Lender (except any such reserve requirement
reflected in
the Adjusted LIBOR Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank
market any other condition affecting this Agreement or Eurodollar
Revolving
Loans made by such Lender or any Letter of Credit or participation
therein;
60
<PAGE>
and the result of any of the foregoing shall be to increase the
cost to such
Lender of making or maintaining any Eurodollar Revolving Loan (or
of maintaining
its obligation to make any such Loan) or to increase the cost to
such Lender or
the Issuing Bank of participating in, issuing or maintaining any
Letter of
Credit or to reduce the amount of any sum received or receivable by
such Lender
or the Issuing Bank hereunder (whether of principal, interest or
otherwise),
then Borrower will pay to Administrative Agent for the account of
such Lender or
the Issuing Bank, as the case may be, such additional amount or
amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for
such
additional costs incurred or reduction suffered.
(b)
If any Lender or the Issuing Bank determines that any Change in
Law
regarding capital requirements has or would have the effect of
reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the
capital of
such Lender's or the Issuing Bank's holding company, if any, as a
consequence of
this Agreement or the Loans made by, or participations in Letters
of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's
or the Issuing
Bank's holding company could have achieved but for such Change in
Law (taking
into consideration such Lender's or the Issuing Bank's policies and
the policies
of such Lender's or the Issuing Bank's holding company with respect
to capital
adequacy), then from time to time Borrower will pay to such Lender
or the
Issuing Bank, as the case may be, such additional amount or amounts
as will
compensate such Lender or the Issuing Bank or such Lender's or the
Issuing
Bank's holding company for any such reduction suffered.
(c)
A certificate of a Lender or the Issuing Bank setting forth the
amount
or amounts necessary to compensate such Lender or the Issuing Bank
or its
holding company, as the case may be, as specified in paragraph (a)
or (b) of
this Section 2.12 shall be delivered to Borrower and shall be
conclusive absent
manifest error. Borrower shall pay Administrative Agent for the
account of such
Lender or the Issuing Bank, as the case may be, the amount shown as
due on any
such certificate within 10 days after receipt thereof.
(d)
Failure or delay on the part of any Lender or the Issuing Bank
to
demand compensation pursuant to this Section 2.12 shall not
constitute a waiver
of such Lender's or the Issuing Bank's right to demand such
compensation;
provided, that Borrower shall not be required to compensate a
Lender or the
Issuing Bank pursuant to this Section 2.12 for any increased costs
or reductions
incurred more than 270 days prior to the date that such Lender or
the Issuing
Bank, as the case may be, notifies Borrower of the Change in Law
giving rise to
such increased costs or reductions and of such Lender's or the
Issuing Bank's
intention to claim compensation therefor; provided, further that,
if the Change
in Law giving rise to such increased costs or reductions is
retroactive, then
the 270-day period referred to above shall not begin earlier than
the date of
effectiveness of the Change in Law.
SECTION 2.13 BREAKAGE PAYMENTS. In the event of (a) the payment
or
prepayment, whether optional or mandatory, of any principal of any
Eurodollar
Revolving Loan other than on the last day of an Interest Period
applicable
thereto (including as a result of an Event of Default), (b) the
conversion of
any Eurodollar Revolving Loan other than on the last day of the
Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or
prepay any
Revolving Loan on the date specified in any notice delivered
pursuant hereto or
(d) the assignment of any Eurodollar Revolving Loan other than on
the last day
of the Interest Period applicable thereto as
61
<PAGE>
a result of a request by Borrower pursuant to Section 2.16, then,
in any such
event, Borrower shall compensate each Lender for the loss, cost and
expense
attributable to such event. In the case of a Eurodollar Revolving
Loan, such
loss, cost or expense to any Lender shall be deemed to include an
amount
determined by such Lender to be the excess, if any, of (i) the
amount of
interest which would have accrued on the principal amount of such
Loan had such
event not occurred, at the Adjusted LIBOR Rate that would have been
applicable
to such Loan, for the period from the date of such event to the
last day of the
then current Interest Period therefor (or, in the case of a failure
to borrow,
convert or continue, for the period that would have been the
Interest Period for
such Loan), over (ii) the amount of interest which would accrue on
such
principal amount for such period at the interest rate which such
Lender would
bid were it to bid, at the commencement of such period, for Dollar
deposits of a
comparable amount and period from other banks in the Eurodollar
market. A
certificate of any Lender setting forth any amount or amounts that
such Lender
is entitled to receive pursuant to this Section 2.13 shall be
delivered to
Borrower and Administrative Agent and shall be conclusive absent
manifest error.
Borrower shall pay Administrative Agent for the account of such
Lender the
amount shown as due on any such certificate within 10 days after
receipt
thereof.
SECTION 2.14 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) Borrower shall make each payment required to be made by it
hereunder or
under any other Loan Document (whether of principal, interest, fees
or
reimbursement of LC Disbursements, or of amounts payable under
Section 2.12,
2.13 or 2.15, or otherwise) on or before the time expressly
required hereunder
or under such other Loan Document for such payment (or, if no such
time is
expressly required, prior to 1:00 p.m., New York City time), on the
date when
due, in immediately available funds, without setoff or
counterclaim. Any amounts
received after such time on any date may, in the discretion of
the
Administrative Agent, be deemed to have been received on the next
succeeding
Business Day for purposes of calculating interest thereon. All such
payments
shall be made to the Payment Account or such other place as the
Administrative
Agent may from time to time designate in writing, except payments
to be made
directly to the Issuing Bank or Swingline Lender as expressly
provided herein
and except that payments pursuant to Sections 2.12, 2.13, 2.15 and
11.03 shall
be made to the Administrative Agent for the benefit of to the
Persons entitled
thereto and payments pursuant to other Loan Documents shall be made
to the
Administrative Agent for the benefit of the Persons specified
therein. Subject
to the settlement provisions of Section 10.12, the Administrative
Agent shall
distribute any such payments received by it for the account of any
other Person
to the appropriate recipient promptly following receipt thereof. If
any payment
under any Loan Document shall be due on a day that is not a
Business Day, the
date for payment shall be extended to the next succeeding Business
Day, and, in
the case of any payment accruing interest, interest thereon shall
be payable for
the period of such extension. All payments under each Loan Document
shall be
made in Dollars.
(b)
If at any time insufficient funds are received by and available to
the
Administrative Agent to pay fully all amounts of principal,
unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds
shall be applied
(i) first, towards payment of interest and fees then due hereunder,
ratably
among the parties entitled thereto in accordance with the amounts
of interest
and fees then due to such parties, and (ii) second, towards payment
of principal
and unreimbursed LC Disbursements then due hereunder, ratably among
the parties
entitled thereto
62
<PAGE>
in accordance with the amounts of principal and unreimbursed LC
Disbursements
then due to such parties.
(c)
If any Lender shall, by exercising any right of setoff or
counterclaim
or otherwise, obtain payment in respect of any principal of or
interest on any
of its Revolving Loans or participations in LC Disbursements or
Swingline Loans
resulting in such Lender receiving payment of a greater proportion
of the
aggregate amount of its Revolving Loans and participations in LC
Disbursements
and Swingline Loans and accrued interest thereon than the
proportion received by
any other Lender, then the Lender receiving such greater proportion
shall
purchase (for cash at face value) participations in the Revolving
Loans and
participations in LC Disbursements and Swingline Loans of other
Lenders to the
extent necessary so that the benefit of all such payments shall be
shared by the
Lenders ratably in accordance with the aggregate amount of
principal of and
accrued interest on their respective Revolving Loans and
participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such
participations
are purchased and all or any portion of the payment giving rise
thereto is
recovered, such participations shall be rescinded and the purchase
price
restored to the extent of such recovery, without interest, and (ii)
the
provisions of this paragraph shall not be construed to apply to any
payment made
by Borrower pursuant to and in accordance with the express terms of
this
Agreement or any payment obtained by a Lender as consideration for
the
assignment of or sale of a participation in any of its Loans or
participations
in LC Disbursements to any assignee or participant, other than to
Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of
this
paragraph shall apply). Borrower consents to the foregoing and
agrees, to the
extent it may effectively do so under applicable law, that any
Lender acquiring
a participation pursuant to the foregoing arrangements may exercise
against
Borrower rights of setoff and counterclaim with respect to such
participation as
fully as if such Lender were a direct creditor of Borrower in the
amount of such
participation.
(d)
Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the
Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder
that Borrower
will not make such payment, the Administrative Agent may assume
that Borrower
has made such payment on such date in accordance herewith and may,
in reliance
upon such assumption, distribute to the Lenders or the Issuing
Bank, as the case
may be, the amount due. In such event, if Borrower has not in fact
made such
payment, then each of the Lenders or the Issuing Bank, as the case
may be,
severally agrees to repay to the Administrative Agent forthwith on
demand the
amount so distributed to such Lender or Issuing Bank with interest
thereon, for
each day from and including the date such amount is distributed to
it to but
excluding the date of payment to the Administrative Agent, at the
greater of the
Federal Funds Effective Rate and a rate determined by the
Administrative Agent
in accordance with banking industry rules on interbank
compensation.
(e)
If any Lender shall fail to make any payment required to be made by
it
pursuant to Section 2.02(c), 2.02(f), 2.14(d), 2.17(d), 2.18(d) or
11.03(d),
then the Administrative Agent may, in its discretion
(notwithstanding any
contrary provision hereof), apply any amounts thereafter received
by the
Administrative Agent for the account of such Lender to satisfy such
Lender's
obligations under such Sections until all such unsatisfied
obligations are fully
paid.
63
<PAGE>
SECTION 2.15 TAXES. (a) Any and all payments by or on account of
any
obligation of Borrower or any Borrowing Base Guarantor hereunder or
under any
other Loan Document shall be made without set-off, counterclaim or
other defense
and free and clear of and without deduction or withholding for any
and all
Indemnified Taxes; provided, that if Borrower or such Borrowing
Base Guarantor
shall be required by law to deduct any Indemnified Taxes from such
payments,
then (i) the sum payable shall be increased as necessary so that
after making
all required deductions (including deductions or withholdings
applicable to
additional sums payable under this Section 2.15) the Administrative
Agent,
Lender or Issuing Bank (as the case may be) receives an amount
equal to the sum
it would have received had no such deductions or withholdings been
made, (ii)
Borrower or such Borrowing Base Guarantor shall make such
deductions or
withholdings and (iii) Borrower or such Borrowing Base Guarantor
shall pay the
full amount deducted or withheld to the relevant Governmental
Authority in
accordance with applicable law.
(b)
In addition, Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c)
Borrower shall indemnify and pay the Administrative Agent, each
Lender
and the Issuing Bank, within 10 Business Days after written demand
therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by
the
Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or
with respect to any payment by or on account of any obligation of
Borrower
hereunder or under any other Loan Document (including Indemnified
Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable
under this
Section 2.15) and any penalties, interest and reasonable expenses
arising
therefrom or with respect thereto, whether or not such Indemnified
Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant
Governmental Authority. A certificate as to the amount of such
payment or
liability delivered to Borrower by a Lender or the Issuing Bank, or
by the
Administrative Agent on its own behalf or on behalf of a Lender or
the Issuing
Bank, shall be conclusive absent manifest error.
(d)
As soon as practicable after any payment of Indemnified Taxes or
Other
Taxes by Borrower to a Governmental Authority, Borrower shall
deliver to the
Administrative Agent the original or a certified copy of a receipt
issued by
such Governmental Authority evidencing such payment, a copy of the
return
reporting such payment or other evidence of such payment reasonably
satisfactory
to the Administrative Agent.
(e)
Any Foreign Lender that is entitled to an exemption from or
reduction
of withholding tax under the law of the jurisdiction in which
Borrower is
located, or any treaty to which such jurisdiction is a party, with
respect to
payments under this Agreement shall deliver to Borrower (with a
copy to the
Administrative Agent), at the time or times prescribed by
applicable law, such
properly completed and executed documentation prescribed by
applicable law or
reasonably requested by Borrower as will permit such payments to be
made without
withholding or at a reduced rate. Each Foreign Lender either (1)
(i) agrees to
furnish either U.S. Internal Revenue Service Form W-8ECI or U.S.
Internal
Revenue Service Form W-8BEN (or successor form) and (ii) agrees
(for the benefit
of Borrower and the Administrative Agent), to the extent it may
lawfully do so
at such times, upon reasonable request by Borrower or the
Administrative Agent,
to provide a new Form W-8ECI or Form W-8BEN (or successor form)
upon the
expiration or
64
<PAGE>
obsolescence of any previously delivered form to reconfirm any
complete
exemption from, or any entitlement to a reduction in, U.S. federal
withholding
tax with respect to any interest payment hereunder or (2) in the
case of any
such Foreign Lender that is not a "bank" within the meaning of
Section
881(c)(3)(A) of the Code, (i) agrees to furnish either (a) a
"Non-Bank
Certificate" in a form acceptable to the Administrative Agent and
the Borrower
and two accurate and complete original signed copies of Internal
Revenue Service
Form W-8BEN (or successor form) or (b) an Internal Revenue Form
W-8ECI (or
successor form), certifying (in each case) to such Foreign Lender's
legal
entitlement to an exemption or reduction from U.S. federal wit
