Exhibit 99.1
EXECUTION COPY
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REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
Among
COLLINS & AIKMAN PRODUCTS CO.,
a Debtor and a
Debtor-in-Possession under Chapter 11 of the Bankruptcy Code
as Borrower,
COLLINS & AIKMAN CORPORATION,
and
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
Each a Debtor and a Debtor-in-Possession under
Chapter 11 of the Bankruptcy Code
as Guarantors
and
THE LENDERS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
J.P. MORGAN SECURITIES INC.,
as Sole Bookrunner
and
Sole Lead Arranger
Dated as of May 17, 2005
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<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1.
DEFINITIONS......................................................2
SECTION 1.01 Defined
Terms........................................2
SECTION 1.02 Terms
Generally.....................................22
SECTION 1.03 Accounting Terms;
GAAP..............................22
SECTION 1.04 Certain Post Closing
Matters........................23
SECTION 2. AMOUNT AND TERMS OF
CREDIT......................................24
SECTION 2.01 Commitments of the
Lenders..........................24
SECTION 2.02
Reserved............................................25
SECTION 2.03 Letters of
Credit...................................25
SECTION 2.04 Requests for
Borrowings.............................30
SECTION 2.05 Funding of
Borrowings...............................31
SECTION 2.06 Interest
Elections..................................32
SECTION 2.07
[Reserved]..........................................33
SECTION 2.08 Interest on
Loans...................................33
SECTION 2.09 Default
Interest....................................33
SECTION 2.10 Alternate Rate of
Interest..........................34
SECTION 2.11 Repayment of Loans;
Evidence of Debt................34
SECTION 2.12 Optional Termination
or Reduction of Commitment.....35
SECTION 2.13 Mandatory Prepayment;
Commitment Termination........35
SECTION 2.14 Optional Prepayment of
Loans........................36
SECTION 2.15
Reserved............................................36
SECTION 2.16 Increased
Costs.....................................36
SECTION 2.17 Break Funding
Payments..............................37
SECTION 2.18
Taxes...............................................38
SECTION 2.19 Payments Generally;
Pro Rata Treatment..............39
SECTION 2.20 Mitigation
Obligations; Replacement of Lenders......40
SECTION 2.21 Certain
Fees........................................41
SECTION 2.22 Commitment
Fees.....................................41
SECTION 2.23 Letter of Credit
Fees...............................41
SECTION 2.24 Nature of
Fees......................................42
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SECTION 2.25 Priority and
Liens..................................42
SECTION 2.26 Right of
Set-Off....................................43
SECTION 2.27 Security Interest in
Letter of Credit Account.......44
SECTION 2.28 Payment of
Obligations..............................44
SECTION 2.29 No Discharge; Survival
of Claims....................44
SECTION 2.30 Use of Cash
Collateral..............................44
SECTION 3. REPRESENTATIONS AND
WARRANTIES..................................44
SECTION 3.01 Organization and
Authority..........................44
SECTION 3.02 Due
Execution.......................................45
SECTION 3.03 Statements
Made.....................................45
SECTION 3.04 Financial
Statements................................46
SECTION 3.05
Ownership...........................................46
SECTION 3.06
Liens...............................................46
SECTION 3.07 Compliance with
Law.................................46
SECTION 3.08
Insurance...........................................46
SECTION 3.09 Use of
Proceeds.....................................46
SECTION 3.10
Litigation..........................................47
SECTION 3.11 Labor
Relations.....................................47
SECTION 3.12
ERISA...............................................47
SECTION 3.13 The
Orders..........................................48
SECTION 3.14
Properties..........................................48
SECTION 4. CONDITIONS OF
LENDING...........................................48
SECTION 4.01 Conditions Precedent
to Initial Loans and Initial
Letters of Credit.................................48
SECTION 4.02 Conditions Precedent
to Each Loan and Each Letter
of Credit.........................................51
SECTION 4.03 Conditions Precedent
to the Tranche B Loan..........52
SECTION 5. AFFIRMATIVE
COVENANTS...........................................52
SECTION 5.01 Financial Statements,
Reports, etc..................53
SECTION 5.02
Existence...........................................56
SECTION 5.03
Insurance...........................................56
SECTION 5.04 Obligations and
Taxes...............................56
SECTION 5.05 Notice of Event of
Default, etc.....................56
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SECTION 5.06 Access to Books and
Records.........................57
SECTION 5.07 Maintenance of
Concentration Account................57
SECTION 5.08 Borrowing Base
Certificate..........................57
SECTION 5.09 Collateral Monitoring
and Review....................58
SECTION 5.10 Public
Rating.......................................58
SECTION 5.11
Receivables.........................................58
SECTION 6. NEGATIVE
COVENANTS..............................................58
SECTION 6.01
Liens...............................................58
SECTION 6.02 Merger,
etc.........................................59
SECTION 6.03
Indebtedness........................................59
SECTION 6.04 Capital
Expenditures................................60
SECTION 6.05
EBITDA..............................................60
SECTION
6.06
Guarantees and Other Liabilities....................61
SECTION 6.07 Chapter 11
Claims...................................61
SECTION 6.08 Dividends; Capital
Stock............................62
SECTION 6.09 Transactions with
Affiliates........................62
SECTION 6.10 Investments, Loans and
Advances.....................62
SECTION 6.11 Disposition of
Assets...............................62
SECTION 6.12 Nature of
Business..................................63
SECTION 7. EVENTS OF
DEFAULT...............................................63
SECTION 7.01 Events of
Default...................................63
SECTION 8. THE
AGENT.......................................................67
SECTION 8.01 Administration by
Agent.............................67
SECTION 8.02 Rights of
Agent.....................................67
SECTION 8.03 Liability of
Agent..................................67
SECTION 8.04 Reimbursement and
Indemnification...................68
SECTION 8.05 Successor
Agent.....................................68
SECTION 8.06 Independent
Lenders.................................68
SECTION 8.07 Advances and
Payments...............................69
SECTION 8.08 Sharing of
Setoffs..................................69
SECTION 9.
GUARANTY........................................................70
SECTION 9.01
Guaranty............................................70
SECTION 9.02 No Impairment of
Guaranty...........................71
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SECTION 9.03
Subrogation.........................................71
SECTION 10.
MISCELLANEOUS..................................................71
SECTION 10.01
Notices.............................................71
SECTION 10.02
Survival of Agreement, Representations and
Warranties, etc...................................72
SECTION 10.03
Successors and Assigns..............................72
SECTION 10.04
Confidentiality.....................................75
SECTION 10.05
Expenses; Indemnity; Damage Waiver..................76
SECTION 10.06
CHOICE OF LAW.......................................77
SECTION 10.07 No
Waiver...........................................77
SECTION 10.08
Extension of Maturity...............................77
SECTION 10.09
Amendments, etc.....................................77
SECTION 10.10
Severability........................................79
SECTION 10.11
Headings............................................79
SECTION 10.12
Survival............................................79
SECTION 10.13
Execution in Counterparts; Integration;
Effectiveness.....................................79
SECTION 10.14
Prior Agreements....................................80
SECTION 10.15
USA Patriot Act.....................................80
SECTION 10.16
WAIVER OF JURY TRIAL................................80
ANNEX A
Commitment Amounts
EXHIBIT A
-
Form of Interim Order
EXHIBIT B
-
Form of Security and Pledge Agreement
EXHIBIT C-1 -
Form of Opinion of Kirkland & Ellis LLP
EXHIBIT C-2 -
Form of Opinion of General Counsel
EXHIBIT D
-
Form of Assignment and Acceptance
SCHEDULE 1.01 -
Existing Agreement
SCHEDULE 3.04 -
Material Adverse Effect
SCHEDULE 3.05 -
Subsidiaries
SCHEDULE 3.10 -
Litigation
SCHEDULE 3.11 -
Labor Relations
SCHEDULE 6.01 - Liens
SCHEDULE 6.09 -
Transactions with Affiliates
SCHEDULE 6.10 -
Existing Investments
iv
<PAGE>
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
Dated as of May 17, 2005
REVOLVING
CREDIT, TERM LOAN AND GUARANTY AGREEMENT, dated as of May 17,
2005, among COLLINS & AIKMAN PRODUCTS
CO., a Delaware corporation (the
"Borrower"), a debtor and
debtor-in-possession in a case pending under Chapter
11 of the Bankruptcy Code, COLLINS &
AIKMAN CORPORATION, a Delaware corporation
(the "Parent") and the subsidiaries of the
Borrower signatory hereto (each a
"Guarantor" and collectively the
"Guarantors"), each of which Guarantors is a
debtor and debtor-in-possession in a case
pending under Chapter 11 of the
Bankruptcy Code (the cases of the Borrower
and the Guarantors, each a "Case" and
collectively, the "Cases"), JPMORGAN CHASE
BANK, N.A., a national banking
association ("JPMCB"), each of the other
financial institutions from time to
time party hereto (together with JPMCB, the
"Lenders") and JPMORGAN CHASE BANK,
N.A., as administrative agent (in such
capacity, the "Agent") for the Lenders.
INTRODUCTORY STATEMENT
On May 17, 2005,
the Borrower and the Guarantors filed voluntary petitions
with the Bankruptcy Court initiating the
Cases and have continued in the
possession of their assets and in the
management of their businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy
Code.
The Borrower has
applied to the Lenders for loan facilities of up to
$300,000,000, comprised of (i) a revolving
credit and letter of credit facility
in an aggregate principal amount of up to
$200,000,000 as set forth herein and
(ii) a term loan in an aggregate principal
amount of up to $100,000,000 as set
forth herein, all of the Borrower's
obligations under each of which are to be
guaranteed by the Guarantors.
The proceeds of
the loan facilities will be used (i) in the case of
revolving credit loans and letters of
credit, for general working capital and
corporate purposes of the Borrower and the
Guarantors, and (ii) in the case of
the term loan, for general working capital
and corporate purposes of the
Borrower and the Guarantors and to repay
amounts owed under the revolving credit
and letter of credit facility (with no
commitment reduction).
To provide
guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a
Letter of Credit and the payment of all
other Secured Obligations (including,
without limitation, the obligations of the
Borrower and the Guarantors to JPMCB, any
other Lender or any of their
respective banking Affiliates permitted by
Section 6.03), the Borrower and the
Guarantors will provide to the Agent and
the Lenders the claims and liens
described in Section 2.25 of this
Agreement.
Accordingly, the
parties hereto hereby agree as follows:
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2
SECTION 1. DEFINITIONS
SECTION 1.01 Defined
Terms."ABR", when used in reference to any Loan or
Borrowing, refers to whether 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.
"Additional
Credit" shall have the meaning given such term in Section
4.02(d).
"Adjusted LIBO
Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate
per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory
Reserve Rate.
"Affiliate"
shall mean, as to any Person, any other Person which, directly
or indirectly, is in control of, is
controlled by, or is under common control
with, such Person. For purposes of this
definition, a Person (a "Controlled
Person") shall be deemed to be "controlled
by" another Person (a "Controlling
Person") if the Controlling Person
possesses, directly or indirectly, power to
direct or cause the direction of the
management and policies of the Controlled
Person whether by contract or
otherwise.
"Agent" shall
have the meaning given such term in the Introduction.
"Agreement"
shall mean this Revolving Credit, Term Loan and Guaranty
Agreement, as the same may from time to
time be amended, modified or
supplemented.
"Alternate Base
Rate" shall mean, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate
or the Federal Funds Effective Rate
shall be effective from and including the
effective date of such change in the
Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate, respectively.
"Approved Fund"
shall have the meaning given such term in Section 10.03(b).
"Assessment
Rate" shall mean, for any day, the annual assessment rate in
effect on such day that is payable by a
member of the Bank Insurance Fund
classified as "well-capitalized" and within
supervisory subgroup "B" (or a
comparable successor risk classification)
within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the
Federal Deposit Insurance Corporation
for insurance by such Corporation of time
deposits made in dollars at the
offices of such member in the United
States; provided that if, as a result of
any change in any law, rule or regulation,
it is no longer possible to determine
the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual
rate as shall be determined by the Agent to
be representative of the cost of
such insurance to the Lenders.
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3
"Assignment and
Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee (with the
consent of any party whose consent is
required by Section 10.03), and accepted by
the Agent, substantially in the form
of Exhibit D.
"Audit Committee
Report Date" shall mean the date on which the audit
committee of the Parent delivers to the
Parent's Board of Directors its final
report with respect to the rebate
investigation and any related or concurrent
financial reporting investigation of the
Parent and/or any of its direct or
indirect Subsidiaries.
"Availability
Period" shall mean the period from and including the Closing
Date to but excluding the Termination
Date.
"Available
Inventory" shall have the meaning given such term in the
Borrowing Base Amendment.
"Available
Receivables" shall have the meaning given such term in the
Borrowing Base Amendment.
"Bankruptcy
Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and
codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy
Court" shall mean the United States Bankruptcy Court for the
Eastern District of Michigan or any other
court having jurisdiction over the
Cases from time to time.
"Base CD Rate"
shall mean the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate
plus (b) the Assessment Rate.
"Board" shall
mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrower" shall
have the meaning given such term in the Introduction.
"Borrowing"
shall mean (a) the incurrence, conversion or continuation of
Tranche A Loans of a single Type made from
all the Tranche A Lenders on a single
date and having, in the case of Eurodollar
Loans, a single Interest Period and
(b) the incurrence of the Tranche B
Loan.
"Borrowing Base"
shall be defined in a manner reasonably satisfactory to
the Agent to be set forth in the Borrowing
Base Amendment and shall limit the
Total Commitment Usage to an amount equal
to the sum, without duplication, of
(A) Available Receivables, plus (B)
Available Inventory, plus (C) the PP&E
Component, minus (D) the Borrowing Base
Carve-Out Amount, provided, that the
amount derived from clause (C) shall not
exceed the lesser of (i) $50,000,000 or
(ii) an amount equal to a percentage
satisfactory to the Agent of the sum of
clauses (A), (B) and (C). The Borrowing
Base at any time shall be determined by
reference to the most recent Borrowing Base
Certificate delivered to Agent
pursuant to the Borrowing Base Amendment or
Section 5.08. Standards of
eligibility and reserves and advance rates
of the Borrowing Base may be revised
and adjusted from time to time by the Agent
in its reasonable
<PAGE>
4
discretion, and the Borrowing Base shall be
subject to reserves from time to
time established by the Agent in its
reasonable discretion, with any changes in
such standards and reserves to be effective
upon the later of the date of the
next succeeding weekly Borrowing Base
Certificate and to be effective five
Business Days after delivery of notice
thereof to the Borrower.
"Borrowing Base
Amendment" shall mean an amendment to this Agreement
reasonably satisfactory to the Agent to be
executed and delivered prior to the
entry of the Final Order.
"Borrowing Base
Carve-Out Amount" shall mean at any time an amount equal to
$7,000,000 plus the Carve-Out Reserve.
"Borrowing Base
Certificate" shall mean a certificate substantially in the
form of an exhibit to be annexed to the
Borrowing Base Amendment (with such
changes therein as may be required by the
Agent to reflect the components of and
reserves against the Borrowing Base as
provided for hereunder from time to
time), executed and certified as accurate
and complete in all material respects
by a Financial Officer which shall include
appropriate exhibits, schedules,
supporting documentation, and additional
reports (i) as referred to in such
exhibit to the Borrowing Base Amendment,
(ii) as reasonably requested by the
Agent, and (iii) as provided for in Section
5.08.
"Borrowing
Request" shall mean a request by the Borrower for a Borrowing
in
accordance with Section 2.04.
"Budgets" shall
have the meaning given such term in Section 5.01(m).
"Business Day"
shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in New York
City are required or authorized to
remain closed (and, for a Letter of Credit,
other than a day on which the
Issuing Lender issuing such Letter of
Credit is closed); provided, however, that
when used in connection with a Eurodollar
Loan, the term "Business Day" shall
also exclude any day on which banks are not
open for dealings in dollar deposits
on the London interbank market.
"Capital
Expenditures" shall mean, for any period, for any Person, the
aggregate of all expenditures (whether (i)
paid in cash and not theretofore
accrued or (ii) accrued as liabilities
during such period, and including that
portion of any post-petition Capitalized
Lease which is capitalized on the
consolidated balance sheet of the Borrower
and the Guarantors) net of cash
amounts received by the Borrower and the
Guarantors from other Persons during
such period in reimbursement of Capital
Expenditures made by such Person,
excluding interest capitalized during
construction, made by the Borrower and the
Guarantors during such period that, in
conformity with GAAP, are required to be
included in or reflected by the property,
plant, equipment or similar fixed
asset accounts reflected in the
consolidated balance sheet of the Borrower and
the Guarantors (including equipment which
is purchased simultaneously with the
trade-in of existing equipment owned by the
Borrower or any Guarantor to the
extent of the gross amount of such purchase
price less the "trade-in" value or
credit granted by the purchaser of the
equipment being traded in at such time),
but excluding expenditures made in
connection with the replacement or
restoration of assets to the extent
reimbursed or financed from (x) insurance
<PAGE>
5
proceeds paid on account of the loss of or
the damage to the assets being
replaced or restored or (y) awards of
compensation arising from the taking by
condemnation or eminent domain of such
assets being replaced.
"Capitalized
Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee which
would be capitalized on a balance sheet
of such Person prepared in accordance with
GAAP. The amount of obligations of
such Person under a Capitalized Lease shall
be the capitalized amount thereof
determined in accordance with GAAP.
"Carve-Out"
shall mean (i) all fees required to be paid to the Clerk of the
Bankruptcy Court and to the Office of the
United States Trustee under section
1930(a) of title 28 of the United States
Code and (ii) after the occurrence and
during the continuance of an Event of
Default an amount not exceeding $7,000,000
in the aggregate (plus the amount of the
unpaid professional fees and expenses
incurred by the Debtors prior to the
occurrence of an Event of Default; provided
that the amounts in respect thereof shall
have been provided on a monthly basis
in writing by Debtors' counsel to the Agent
(at any time, the most recently
reported amounts being the "Carve-Out
Reserve") prior to the occurrence of any
such Event of Default and reserved against
availability under the Borrowing
Base), which amount may be used subject to
the terms of the Orders, to pay any
fees or expenses incurred by the Borrower
and the Guarantors and any statutory
committees appointed in the Cases (each, a
"Committee") in respect of (A)
allowances of compensation for services
rendered or reimbursement of expenses
awarded by the Bankruptcy Court to the
Borrower's or any Guarantor's or any
Committee's professionals and (B) the
reimbursement of expenses allowed by the
Bankruptcy Court incurred by Committee
members in the performance of their
duties (but excluding fees and expenses of
third party professionals employed by
such members); provided that (w) the dollar
limitation in clause (ii) of this
definition on fees and disbursements shall
neither be reduced nor increased by
the amount of any compensation or
reimbursement of expenses incurred, awarded or
paid prior to the occurrence of an Event of
Default in respect of which the
Carve Out is invoked or by any fees,
expenses, indemnities or other amounts paid
to any Agent, Lender or their respective
attorneys and agents under the DIP
Credit Agreement or otherwise, (x) to the
extent the dollar limitation in clause
(ii) of this definition on fees and
disbursement is reduced by any amount as a
result of payment of such fees and
disbursements during the continuance of an
Event of Default, and such Event of Default
is subsequently cured or waived,
then effective as of the effectiveness of
such cure or waiver, such dollar
limitation shall be increased by an amount
equal to the amount by which it has
been so reduced, (y) nothing herein shall
be construed to impair the ability of
any party to object to any of the fees,
expenses, reimbursement or compensation
described in clauses (A) and (B) above, and
(z) cash or other amounts on deposit
in the Letter of Credit Account shall not
be subject to the Carve Out.
"Cases" shall
have the meaning given such term in the Introduction.
"Cash
Collateralization" shall have the meaning given such term in
Section
2.03(j).
"Change in Law"
shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any
change in any law, rule or regulation
or in the interpretation or application
thereof by any Governmental Authority
after the date of this Agreement or (c)
<PAGE>
6
compliance by any Lender or Issuing Lender
(or, for purposes of Section 2.16(b),
by any lending office of such Lender or
Issuing Lender or by such Lender's or
Issuing Lender'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.
"Change of
Control" shall mean (i) the acquisition of ownership, directly
or indirectly, beneficially or of record,
by any Person or group (within the
meaning of the Securities Exchange Act of
1934 and the rules of the Securities
and Exchange Commission thereunder as in
effect on the date hereof), other than
Heartland Industrial Partners, L.P. and its
Affiliates, of Equity Interests
representing more than 50% of the aggregate
ordinary voting power represented by
the issued and outstanding Equity Interests
of the Borrower; or (ii) the
occupation of a majority of the seats
(other than vacant seats) on the Board of
Directors of the Borrower by Persons who
were neither (A) nominated by the Board
of Directors of the Borrower nor (B)
appointed by directors so nominated.
"Closing Date
Budget" shall have the meaning given such term in Section
4.01(l).
"Closing Date"
shall mean the date on which this Agreement has been
executed and the conditions precedent to
the making of the initial Loans or the
issuance of the initial Letter of Credit
(whichever may occur first) set forth
in Section 4 have been satisfied or waived,
which date shall occur promptly upon
entry of the Interim Order, but in any
event not later than 10 days following
the entry of the Interim Order.
"Code" shall
mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated
and rulings issued thereunder.
"Collateral"
shall mean the "Collateral" as defined in the Security and
Pledge Agreement.
"Commitment"
shall mean either a Tranche A Commitment or a Tranche B
Commitment.
"Commitment Fee"
shall mean, collectively, the Tranche A Commitment Fee and
the Tranche B Commitment Fee.
"Consummation
Date" shall mean the date of the substantial consummation (as
defined in Section 1101 of the Bankruptcy
Code and which for purposes of this
Agreement shall be no later than the
effective date) of a Reorganization Plan
that is confirmed pursuant to an order of
the Bankruptcy Court.
"Delivery Date"
shall mean the earlier of (i) the date which is twenty (20)
Business Days after the Closing Date and
(ii) the date the Final Order is
entered.
"Dollars" and
"$" shall mean lawful money of the United States of America.
"Domestic
EBITDA" shall mean, for any period, all as determined in
accordance with GAAP, the consolidated net
income (or net loss) of the Domestic
Entities for such period, plus (a) to the
extent deducted in the calculation of
consolidated net income, without
duplication,
<PAGE>
7
the sum of (i) depreciation expense, (ii)
amortization expense, (iii) other
non-cash charges, (iv) consolidated
foreign, federal, state and local income tax
expense, (v) gross interest expense for
such period less gross interest income
for such period, (vi) extraordinary losses,
(vii) any charges for Restructuring
Costs, (viii) professional fees and other
"Chapter 11 expenses" (or
"administrative costs reflecting Chapter 11
expenses") attributable to the
Domestic Entities for such period, and (ix)
plus or minus the cumulative effect
of any change in accounting principles less
(b) to the extent included in the
calculation of consolidated net income,
extraordinary gains, minus (c) the
amount of cash received or expended in such
period in respect of any amount
which, under clauses (iii) and (vii) above,
was added back in determining
Domestic EBITDA for such or any prior
period.
"Domestic
Entities" shall mean the Borrower and its direct and indirect
domestic Subsidiaries on a consolidated
basis.
"Eligible
Assignee" shall mean (i) a commercial bank having total assets
in
excess of $1,000,000,000, (ii) a finance
company, insurance company or other
financial institution or fund, in each case
reasonably acceptable to the Agent,
which in the ordinary course of business
extends credit of the type contemplated
herein and has total assets in excess of
$200,000,000 and whose becoming an
assignee would not constitute a prohibited
transaction under Section 4975 of
ERISA, (iii) an Affiliate of the assignor
Lender, (iv) an Approved Fund and (v)
any other financial institution
satisfactory to the Agent.
"Environmental
Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments,
injunctions, notices or binding
agreements issued, promulgated or entered
into by any Governmental Authority,
relating to the protection of the
environment, preservation or reclamation of
natural resources, the management, release
or threatened release of any
Hazardous Material or to health and safety
matters.
"Environmental
Liability" shall mean any liability, contingent or otherwise
(including any liability for damages, costs
of environmental remediation, fines,
penalties or indemnities), of the Borrower
or any Subsidiary directly or
indirectly resulting from or based upon (a)
violation of any Environmental Law,
(b) the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials,
(d) the release or threatened release of
any Hazardous Materials into the
environment or (e) any contract, agreement
or other consensual arrangement
pursuant to which liability is assumed or
imposed with respect to any of the
foregoing.
"Environmental
Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under
federal or state environmental laws or
regulations, or (ii) damages arising from
or costs incurred by such Governmental
Authority in response to a release or
threatened release of a hazardous or toxic
waste, substance or constituent, or other
substance into the environment.
"Equity
Interests" shall mean shares of capital stock, partnership
interests, membership interests in a
limited liability company, beneficial
interests in a trust or other equity
ownership interests in a Person, and any
warrants, options or other rights entitling
the holder thereof to purchase or
acquire any such equity interest. "ERISA"
shall mean the Employee Retirement
Income Security Act of 1974, as amended
from time to time.
<PAGE>
8
"ERISA
Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the
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 defined in Section
4043 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); (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; (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 the Borrower 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 the Borrower or any
ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an
intention to terminate any Plan or
Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of
any liability with respect to the
withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or
any ERISA Affiliate 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.
"Eurocurrency
Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in
effect from time to time.
"Eurodollar",
when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising
such Borrowing, are bearing interest
at a rate determined by reference to the
Adjusted LIBO Rate.
"Eurodollar
Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Event of
Default" shall have the meaning given such term in Section 7.
"Excluded Taxes"
shall mean, with respect to the Agent, any Lender, any
Issuing Lender or any other recipient of
any payment to be made by or on account
of any obligation of the Borrower
hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income
by the United States of America, 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,
(b) any branch profits taxes imposed
by the United States of America or any
similar tax imposed by any other
jurisdiction in which the Borrower is
located and (c) in the case of a Foreign
Lender, 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 2.18(e),
except to the extent that such Foreign
Lender (or its assignor, if
<PAGE>
9
any) was entitled, at the time of
designation of a new lending office (or
assignment), to receive additional amounts
from the Borrower with respect to
such withholding tax pursuant to Section
2.18.
"Existing First
Lien Agent" shall mean JPMorgan Chase Bank, N.A., in its
capacity as Administrative Agent and
Collateral Agent under the Existing First
Lien Agreement, and its successors in such
capacity.
"Existing First
Lien Agreement" shall mean the Credit Agreement dated as of
December 20, 2001, as amended and restated
as of September 1, 2004, as amended,
by and among the Borrower, the lenders
party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral
Agent and Credit Suisse First Boston, as
Syndication Agent, as amended, restated,
modified or waived from time to time,
and shall include all of the agreements
granting security interests and Liens in
property and assets of the Borrower and the
Guarantors to the Existing First
Lien Agent or the Existing First Lien
Lenders, including without limitation, the
security agreements, mortgages and
leasehold mortgages listed on Schedule 1.01
hereto, each of which documents was
executed and delivered (to the extent party
thereto) by the Borrower and the Guarantors
prior to the Filing Date, as each
may have been amended or modified from time
to time.
"Existing First
Lien Indebtedness" shall mean Indebtedness and other
obligations incurred by the Borrower and
the Guarantors under the Existing First
Lien Agreement.
"Existing First
Lien Lenders" shall mean the lenders from time to time
holding Existing First Lien
Indebtedness.
"Federal Funds
Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to
the next 1/100 of 1%) 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the
quotations for such day for such
transactions received by the Agent from
three Federal funds brokers of
recognized standing selected by it.
"Fees" shall
collectively mean the Commitment Fees, Letter of Credit Fees
and other fees referred to in Sections
2.21, 2.22 and 2.23.
"Filing Date"
shall mean May 17, 2005.
"Final Order"
shall have the meaning given such term in Section 4.02(d).
"Financial
Officer" shall mean the chief financial officer, Senior Vice
President - Finance and Accounting, Vice
President - Finance, principal
accounting officer, controller, corporate
controller, treasurer, treasury
manager or corporate treasurer of the
Borrower.
"Finished Goods"
shall mean completed goods which require no additional
processing or manufacturing, to be sold to
non-Affiliate/third party customers
by the Borrower or any Guarantor in the
ordinary course of business.
<PAGE>
10
"Foreign Lender"
shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the
Borrower is located. For purposes of
this definition and Section 2.18(e), the
United States of America, each State
thereof and the District of Columbia shall
be deemed to constitute a single
jurisdiction.
"Foreign
Subsidiary" shall mean any direct or indirect non-U.S.
Subsidiary
of the Borrower.
"GAAP" shall
mean generally accepted accounting principles applied in
accordance with Section 1.03.
"Global EBITDA"
shall mean, for any period, all as determined in accordance
with GAAP, the consolidated net income (or
net loss) of the Global Entities for
such period, plus (a) to the extent
deducted in the calculation of consolidated
net income, without duplication, the sum of
(i) depreciation expense, (ii)
amortization expense, (iii) other non-cash
charges, (iv) consolidated foreign,
federal, state and local income tax
expense, (v) gross interest expense for such
period less gross interest income for such
period, (vi) extraordinary losses,
(vii) any charges for Restructuring Costs,
(viii) professional fees and other
"Chapter 11 expenses" (or "administrative
costs reflecting Chapter 11 expenses")
attributable to the Domestic Entities for
such period, and (ix) plus or minus
the cumulative effect of any change in
accounting principles less (b) to the
extent included in the calculation of
consolidated net income, extraordinary
gains, minus (c) the amount of cash
received or expended in such period in
respect of any amount which, under clauses
(iii) and (vii) above, was added back
in determining Global EBITDA for such or
any prior period.
"Global
Entities" shall mean the Borrower and all of its direct and
indirect Subsidiaries, on a consolidated
basis.
"Governmental
Authority" shall mean the government of the United States of
America, any other nation or any political
subdivision thereof, whether state or
local, and any agency, authority,
instrumentality, regulatory body, court,
central bank or other entity exercising
executive, legislative, judicial,
taxing, regulatory or administrative powers
or functions of or pertaining to
government.
"Guarantor"
shall have the meaning set forth in the Introduction.
"Hazardous
Materials" shall mean all explosive or radioactive substances
or
wastes and all hazardous or toxic
substances, wastes or other pollutants,
including petroleum or petroleum
distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes
and all other substances or wastes of any
nature regulated pursuant to any
Environmental Law.
"Indebtedness"
shall mean, at any time and with respect to any Person, (i)
all indebtedness of such Person for
borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price
of property or services (other than
property, including inventory, and services
purchased, trade payables that are
not more than 90 days past due (or that are
more than 90 days past due, if the
validity or amount thereof is being
contested in good faith and by appropriate
proceedings and if such Person shall have
set aside on its books adequate
reserves
<PAGE>
11
therefor in accordance with GAAP) and
expense accruals and deferred compensation
items arising, in the ordinary course of
business), (iii) all obligations of
such Person evidenced by notes, bonds,
debentures or other similar instruments
(other than performance, surety and appeal
bonds and completion guarantees
arising in the ordinary course of
business), (iv) all indebtedness of such
Person created or arising under any
conditional sale or other title retention
agreement with respect to property acquired
by such Person (even though the
rights and remedies of the seller or lender
under such agreement in the event of
default are limited to repossession or sale
of such property, in which case such
Indebtedness shall be limited to the value
of the property), (v) all obligations
of such Person under Capitalized Leases,
(vi) (A) all reimbursement, payment or
similar obligations of such Person,
contingent or otherwise, under acceptance,
letter of credit or similar facilities and
(B) all obligations of such Person in
respect of (x) currency swap agreements,
currency future or option contracts and
other similar agreements designed to hedge
against fluctuations in foreign
interest or exchange rates, (y) interest
rate swap, cap or collar agreements and
interest rate future or option contracts,
in each case on a marked-to-market
basis and (z) commodity price protection
agreements or other commodity price
hedging arrangements; (vii) all
Indebtedness referred to in clauses (i) through
(vi) above guaranteed directly or
indirectly by such Person, or in effect
guaranteed directly or indirectly by such
Person through an agreement (A) to pay
or purchase such Indebtedness or to advance
or supply funds for the payment or
purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell
services, primarily for the purpose of
enabling the debtor to make payment of such
Indebtedness or to assure the holder
of such Indebtedness against loss in
respect of such Indebtedness, (C) to supply
funds to or in any other manner invest in
the debtor (including any agreement to
pay for property or services irrespective
of whether such property is received
or such services are rendered) or (D)
otherwise to assure a creditor against
loss in respect of such Indebtedness, and
(viii) all Indebtedness referred to in
clauses (i) through (vii) above secured by
(or for which the holder of such
Indebtedness has an existing right,
contingent or otherwise, to be secured by)
any Lien upon or in property (including,
without limitation, accounts and
contract rights) owned by such Person, even
though such Person has not assumed
or become liable for the payment of such
Indebtedness; provided, however, such
Indebtedness referred to in this clause
(viii) shall be the lesser of the value
of such property on which a Lien is
attached or the amount of such Indebtedness.
"Indemnified
Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee"
shall have the meaning given such term in Section 10.05(b).
"Insufficiency"
shall mean, with respect to any Plan, its "amount of
unfunded benefit liabilities" within the
meaning of Section 4001(a)(18) of
ERISA, if any.
"Interest
Election Request" shall mean a request by the Borrower to
convert
or continue a Borrowing in accordance with
Section 2.06.
"Interest
Payment Date" shall mean (i) as to any Eurodollar Loan included
in any Eurodollar Borrowing, the last day
of each consecutive 30 day period
running from the commencement of the
applicable Interest Period, and (ii) as to
all ABR Loans, the last calendar day of
each month and the date on which any ABR
Loans are converted to Eurodollar Loans
pursuant to Section 2.06.
<PAGE>
12
"Interest
Period" shall mean, as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing
(including as a result of a conversion
from ABR Loans) or on the last day of the
preceding Interest Period applicable
to such Eurodollar Borrowing and ending on
the numerically corresponding day (or
if there is no corresponding day, the last
day) in the calendar month that is
one, three, six or nine months thereafter,
as the Borrower may elect in the
related notice delivered pursuant to
Sections 2.04 or 2.06; provided, however,
that (i) if any Interest Period would end
on a day which shall not be a Business
Day, such Interest Period shall be extended
to the next succeeding Business Day
unless such next succeeding Business Day
would fall in the next calendar month,
in which case such Interest Period shall
end on the next preceding Business Day,
and (ii) no Interest Period shall end later
than the Termination Date.
"Interim Order"
shall have the meaning given such term in Section 4.01(b).
"Inventory" has
the meaning set forth in Article 9 of the Uniform
Commercial Code as in effect from time to
time in the State of New York (and
includes Finished Goods, Raw Materials and
Work in Process).
"Investments"
shall have the meaning given such term in Section 6.10.
"Issuing Lender"
shall mean JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in
such capacity as provided in Section
2.03(i) and up to three other Lenders,
which other Lenders shall be reasonably
satisfactory to the Borrower and the Agent.
The Issuing Lender may, in its
discretion, arrange for one or more Letters
of Credit to be issued by Affiliates
of the Issuing Lender, in which case the
term "Issuing Lender" shall include any
such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"JPMorgan" shall
have the meaning given such term in Section 10.05.
"JPMCB" shall
have the meaning given such term in the Introduction.
"Joint Venture"
shall mean any joint venture that is jointly owned by the
Borrower or a Guarantor with a Person which
is not a Global Entity.
"Joint Venture
Interests" shall mean any interest of the Borrower or a
Guarantor in a Joint Venture.
"LC
Disbursement" shall mean a payment made by the Issuing Lender
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
amount of all LC Disbursements that have
not yet been reimbursed by or on behalf
of the Borrower at such time. The LC
Exposure of any Tranche A Lender at any
time shall be its Tranche A Commitment
Percentage of the LC Exposure at such
time.
"Lenders" shall
have the meaning set forth in the Introduction.
<PAGE>
13
"Letter of
Credit" shall mean any irrevocable letter of credit issued
pursuant to Section 2.03, which letter of
credit shall be (i) an import
documentary or a standby letter of credit,
(ii) issued for purposes that are
consistent with the provisions of this
Agreement (including, without limitation,
Section 3.09), (iii) denominated in Dollars
and (iv) otherwise in such form as
may be reasonably approved from time to
time by the Agent and the applicable
Issuing Lender.
"Letter of
Credit Account" shall mean the account established by the
Borrower under the sole and exclusive
control of the Agent maintained at the
office of the Agent at 270 Park Avenue, New
York, New York 10017 designated as
the "Collins & Aikman Letter of Credit
Account" that shall be used solely for
the purposes set forth herein.
"Letter of
Credit Fees" shall mean the fees payable in respect of Letters
of Credit pursuant to Section 2.23.
"LIBO Rate"
shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page
3750 of the Dow Jones Market Service
(or on any successor or substitute page of
such Service, or any successor to or
substitute for such Service, providing rate
quotations comparable to those
currently provided on such page of such
Service, as determined by the Agent from
time to time for purposes of providing
quotations of interest rates applicable
to dollar deposits in the London interbank
market) at approximately 11:00 a.m.,
London time, two Business Days prior to the
commencement of such Interest
Period, as the rate for dollar deposits
with a maturity comparable to such
Interest Period. In the event that such
rate is not available at such time for
any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at
which dollar deposits of $5,000,000
and for a maturity comparable to such
Interest Period are offered by the
principal London office of the Agent in
immediately available funds in the
London interbank market at approximately
11:00 a.m., London time, two Business
Days prior to the commencement of such
Interest Period.
"Lien" shall
mean (a) any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, lien or
charge of any kind whatsoever, (b) the
interest of a vendor or a lessor under any
conditional sale, capital lease or
other title retention agreement (or any
financing lease having substantially the
same economic effect as any of the
foregoing) and (c) in the case of securities,
any purchase option, call or similar right
of a third party with respect to such
securities.
"Loan" shall
mean, collectively, the Tranche A Loans and the Tranche B
Loan.
"Loan Documents"
shall mean this Agreement, the Letters of Credit, the
Security and Pledge Agreement, and any
other instrument or agreement executed
and delivered to the Agent or any Lender in
connection herewith.
"Maturity Date"
shall mean May 17, 2007.
"Minority
Lenders" shall have the meaning given such term in Section
10.05.
"Moody's" shall
mean Moody's Investors Service, Inc.
<PAGE>
14
"Multiemployer
Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds"
shall mean, in respect of any sale of assets, the cash
proceeds of such sale after the payment of
or reservation for (i) expenses that
are directly related to (or the need for
which arises as a result of) the
transaction of sale, including, but not
limited to, related severance costs,
taxes payable, brokerage commissions,
professional expenses, other similar costs
that are directly related to the sale (all
of which expenses shall be reasonably
satisfactory to the Agent in its reasonable
judgment) and (ii) the amount
secured by valid and perfected Liens, if
any, that are senior to the Liens on
such assets held by the Agent on behalf of
the Lenders.
"Obligations"
shall mean (a) the due and punctual payment of principal of
and interest on the Loans and the
reimbursement of all amounts drawn under
Letters of Credit, and (b) the due and
punctual payment of the Fees and all
other present and future, fixed or
contingent, monetary obligations of the
Borrower and the Guarantors to the Lenders
and the Agent under the Loan
Documents.
"Orders" shall
mean the Interim Order and the Final Order of the Bankruptcy
Court referred to in Sections 4.01(b) and
4.02(d).
"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 arising
from any payment made hereunder or from the
execution, delivery or enforcement
of, or otherwise with respect to, this
Agreement.
"Participant"
shall have the meaning given such term in Section 10.03(d).
"Patriot Act"
shall mean the USA Patriot Act, Title III of Pub. L. 107-56,
signed into law on October 26, 2001.
"PBGC" shall
mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing
substantially the same functions.
"Permitted
Investments" shall mean:
(a) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by,
the United States of America (or by any
agency thereof to the extent such
obligations are backed by the full faith and
credit of the United States of America), in
each case maturing within twelve
months from the date of acquisition
thereof;
(b) investments
in commercial paper maturing within one year from the date
of acquisition thereof and having, at such
date of acquisition, a credit rating
of at least `A' from S&P or `A2' from
Moody's;
(c) investments
in certificates of deposit, banker's acceptances and time
deposits (including Eurodollar time
deposits) maturing within one year from the
date of acquisition thereof issued or
guaranteed by or placed with, or any money
market deposit accounts issued or offered
by, (i) any domestic office of the
Agent or (ii) any domestic office of
<PAGE>
15
any other commercial bank of recognized
standing organized under the laws of the
United States of America or any State
thereof that has a combined capital and
surplus and undivided profits of not less
than $500,000,000;
(d) investments
in repurchase obligations with a term of not more than
thirty (30) days for underlying securities
of the types described in clause (a)
above entered into with any office of a
bank or trust company meeting the
qualifications specified in clause (c)
above;
(e) investments
in money market funds substantially all the assets of which
are comprised of securities of the types
described in clauses (a) through (d)
above; and
(f) in the case
of a Foreign Subsidiary, investments similar to those
described in clauses (a) through (e) in
obligations of Persons located in a
jurisdiction in which such Foreign
Subsidiary is organized or has operations.
"Permitted
Liens" shall mean: (i) Liens imposed by law (other than
Environmental Liens and any Lien imposed
under ERISA) for taxes, assessments or
charges of any Governmental Authority for
claims not yet due or which are being
contested in good faith by appropriate
proceedings and with respect to which
adequate reserves or other appropriate
provisions are being maintained in
accordance with GAAP; (ii) Liens of
landlords and Liens of carriers,
warehousemen, suppliers, mechanics,
materialmen and other Liens (other than
Environmental Liens and any Lien imposed
under ERISA) in existence on the Filing
Date or thereafter imposed by law and
created in the ordinary course of
business; (iii) Liens (other than any Lien
imposed under ERISA) incurred or
deposits made in the ordinary course of
business (including, without limitation,
surety bonds and appeal bonds) in
connection with workers' compensation,
unemployment insurance and other types of
social security benefits or to secure
the performance of tenders, bids, leases,
contracts (other than for the
repayment of Indebtedness), statutory
obligations and other similar obligations
or arising as a result of progress payments
under government contracts; (iv)
easements (including, without limitation,
reciprocal easement agreements and
utility agreements), rights-of-way,
covenants, consents, reservations,
encroachments, variations and zoning and
other restrictions, charges or
encumbrances (whether or not recorded) and
interest of ground lessors, which do
not interfere materially with the ordinary
conduct of the business of the
Borrower or any Guarantor, as the case may
be, and which do not materially
detract from the value of the property to
which they attach or materially impair
the use thereof to the Borrower or any
Guarantor, as the case may be; (v) Liens
in favor of customs and revenue authorities
arising as a matter of law to secure
payment of customs duties in connection
with the importation of goods in the
ordinary course of business; (vi) banker's
liens, rights of set-off or similar
rights, in each case arising by operation
of law; (vii) Liens on intellectual
property arising from the granting of
non-exclusive licenses in the ordinary
course of business to any Person to use
such intellectual property; (viii) Liens
in favor of a landlord on leasehold
improvements in leased premises; (ix)
letters of credit or deposits in the
ordinary course of business to secure
leases; (x) extensions, renewals or
replacements of any Lien referred to in
paragraphs (i) through (ix) above, provided
that the principal amount of the
obligation secured thereby is not increased
and that any such extension, renewal
or replacement is limited to the property
originally encumbered thereby; and
(xi) Liens in respect of judgments that
would not result in an Event of Default
under Section 7.01(k).
<PAGE>
16
"Permitted
Receivable Purchase Facility" shall mean the Amended and
Restated Receivables Purchase Agreement
dated as of December 20, 2001 by and
among Borrower, its wholly-owned
Subsidiaries named therein and Carcorp, Inc.,
as purchaser, and the Receivables Purchase
and Transfer Agreement dated as
December 20, 2001 by and among the
Borrower, individually and as collection
agent, Carcorp, Inc., as transferee and the
financial institutions party thereto
and the agreements related thereto.
"Person" shall
mean any natural person, corporation, division of a
corporation, partnership, limited liability
company, trust, joint venture,
association, company, estate,
unincorporated organization or Governmental
Authority or any agency or political
subdivision thereof.
"Plan" shall
mean any employee pension benefit plan (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,
and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan
were terminated, would under Section
4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of
ERISA.
"Post Closing
Date Budgets" shall have the meaning given such term in
Section 5.01(m).
"PP&E
Component" shall have the meaning given such term in the
Borrowing
Base Amendment.
"Prepayment
Date" shall mean the date that is forty-five (45) days after
the entry of the Interim Order by the
Bankruptcy Court if the Final Order has
not been entered by the Bankruptcy Court
prior to the expiration of such
forty-five (45) day period, or if the Final
Order as entered by the Bankruptcy
Court does not authorize (i) credit
extensions under this Agreement of up to
$300,000,000 and (ii) such changes to the
Loan Documents as the Agent and
JPMorgan shall have reasonably determined
are advisable in order to ensure a
successful syndication of the loan
facilities hereunder or as are permitted by
the Interim Order.
"Pre-Petition
Payment" shall mean a payment (by way of adequate protection
or otherwise) of principal or interest or
otherwise on account of any
pre-petition Indebtedness or trade payables
or other pre-petition claims against
the Borrower or any Guarantor.
"Prime Rate"
shall mean the rate of interest per annum publicly announced
from time to time by JPMCB as its prime
rate in effect at its principal office
in New York City; each change in the Prime
Rate shall be effective from and
including the date such change is publicly
announced as being effective.
"Qualified
Receivables Transaction" shall mean any transaction or series
of
transactions that may be entered into by
one or more Foreign Subsidiaries
pursuant to which one or more Foreign
Subsidiaries may sell, convey or otherwise
transfer to (1) a Receivables Subsidiary
(in the case of a transfer by any
Foreign Subsidiary) and (2) any other
Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a
security interest in, Receivables
(whether now existing or arising in the
future) of any Foreign Subsidiary, and
any assets of a Foreign Subsidiary related
thereto, including, without
limitation, all contracts and all
guarantees
<PAGE>
17
or other obligations in respect of such
Receivables, the proceeds of such
Receivables and other assets which are
customarily transferred, or in respect of
which security interests are customarily
granted, in connection with asset
securitizations involving Receivables.
"Raw Materials"
shall mean items/materials used or consumed in the
manufacturing of goods to be sold by the
Borrower or a Guarantor in the ordinary
course of business.
"Receivable"
shall mean a right to receive payment arising from a sale or
lease of goods or the performance of
services by a Person pursuant to an
arrangement with another Person pursuant to
which such other Person is obligated
to pay for good or services under terms
that permit the purchase of such goods
and services on credit and shall include,
in any event, any items of property
that would be classified as an "account,"
"chattel paper," "payment intangible"
or "instrument" under the Uniform
Commercial Code as in effect in the State of
New York and any supporting
obligations.
"Receivables
Subsidiary" shall mean any wholly-owned Foreign Subsidiary of
any Foreign Subsidiary (or another Person
organized outside the United States in
which any Foreign Subsidiary makes an
Investment and to which one or more
Foreign Subsidiaries transfer Receivables
and related assets) which engages in
no activities other than in connection with
the financing of Receivables and
which is designated by the Board of
Directors of the applicable Foreign
Subsidiary (as provided below) as a
Receivables Subsidiary:
1. no portion of the
Indebtedness or any other obligations (contingent or
otherwise) of which:
(i) is guaranteed by
the Borrower or any Guarantor;
(ii) is recourse to or obligates the Borrower or any Guarantor;
or
(iii) subjects any property or assets of the Borrower or any
Guarantor, directly or indirectly, contingently or otherwise,
to
the satisfaction thereof;
2. with which neither the
Borrower nor any Guarantor has any material
contract, agreement, arrangement or understanding; and
3. to which neither the
Borrower nor any Guarantor has any obligation to
maintain or preserve such entity's financial condition or cause
such
entity to achieve certain levels of operating results.
Any such
designation by the Board of Directors of the applicable Foreign
Subsidiary shall be evidenced by a
certified copy of the resolution of the Board
of Directors of such Foreign Subsidiary
giving effect to such designation and an
officer's certificate certifying, to the
best of such officer's knowledge and
belief, that such designation complies with
the foregoing conditions.
<PAGE>
18
"Register" shall
have the meaning given such term in Section l0.03(b)(iv).
"Related
Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective
directors, officers, employees, agents
and advisors of such Person and such
Person's Affiliates.
"Reorganization
Plan" shall mean a plan of reorganization in any of the
Cases.
"Required
Lenders" shall mean, at any time, Lenders having Tranche A
Commitments at such time (or, if the Total
Tranche A Commitment has been
terminated, Lenders holding Tranche A Loans
and LC Exposure at such time) and
Lenders holding a portion of the Tranche B
Loan at such time (or, if the Tranche
B Loan is not outstanding, Lenders holding
Tranche B Commitments at such time)
representing in excess of 50% of the sum of
the Total Tranche A Commitment at
such time (or, if the Total Tranche A
Commitment has been terminated, the
Tranche A Total Commitment Usage at such
time) plus the Total Tranche B
Commitment at such time.
"Restructuring
Costs" shall mean any and all of the fees, costs and
expenses of restructuring, consolidating or
closing of any of the business
divisions, plants, facilities or offices of
the Borrower or any of its
Subsidiaries together with the costs of
severance or other similar payments
relating to the termination of employees,
and machine transfer costs or any
similar such costs, at such plants,
facilities or offices.
"S&P" shall
mean Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Secured
Obligations" shall have the meaning set forth in the Security
and
Pledge Agreement.
"Security and
Pledge Agreement" shall have the meaning set forth in Section
4(c).
"Single Employer
Plan" shall mean a single employer plan, as defined in
Section 4001(a)(l5) of ERISA, that (i) is
maintained for employees of the
Borrower or an ERISA Affiliate or (ii) was
so maintained and in respect of which
the Borrower could reasonably be expected
to have liability under Title IV of
ERISA in the event such Plan has been or
were to be terminated.
"Standard
Securitization Undertakings" shall mean representations,
warranties, covenants and indemnities
entered into by any Foreign Subsidiary
which are reasonably customary in
securitization of Receivables transactions.
"Statutory
Reserve Rate" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one
and the denominator of which is the
number one minus the aggregate of the
maximum reserve percentages (including any
marginal, special, emergency or
supplemental reserves) expressed as a decimal
established by the Board to which the Agent
is subject (a) with respect to the
Base CD Rate, for new negotiable
nonpersonal time deposits in dollars of over
$100,000 with maturities approximately
equal to three months and (b) with
respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred
to as
<PAGE>
19
"Eurocurrency Liabilities" in Regulation D
of the Board). Such reserve
percentages shall include those imposed
pursuant to such Regulation D.
Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be
subject to such reserve requirements
without benefit of or credit for proration,
exemptions or offsets that may be available
from time to time to any Lender
under such Regulation D or any comparable
regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as
of the effective date of any change in
any reserve percentage.
"STB" shall have
the meaning given such term in Section.
"Subsidiary"
shall mean, with respect to any Person (in this definition
referred to as the "parent"), any
corporation, association or other business
entity (whether now existing or hereafter
organized) of which at least a
majority of the securities or other
ownership or membership interests having
ordinary voting power for the election of
directors is, at the time as of which
any determination is being made, owned or
controlled by the parent or one or
more subsidiaries of the parent or by the
parent and one or more subsidiaries of
the parent.
"Super-majority
Lenders" shall have the meaning given such term in Section
10.090.
"Superpriority
Claim" shall mean a claim against the Borrower and any
Guarantor in any of the Cases which is an
administrative expense claim having
priority over any or all administrative
expenses of the kind specified in
Sections 503(b) or 507(b) of the Bankruptcy
Code.
"Taxes" shall
mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings
imposed by any Governmental
Authority.
"Termination
Date" shall mean the earliest to occur of (i) the Prepayment
Date, (ii) the Maturity Date, (iii) the
Consummation Date and (iv) the
acceleration of the Loans and the
termination of the Total Commitment in
accordance with the terms hereof.
"Termination
Event" shall mean (i) a "reportable event", as such term is
described in Section 4043(c) of ERISA
(other than a "reportable event" as to
which the 30-day notice is waived under
subsection .22, .23, .25, .27 or .28 of
PBGC Regulation Section 4043) or an event
described in Section 4068 of ERISA and
excluding events which would not be
reasonably likely (as reasonably determined
by the Agent) to have a material adverse
effect on the operations, business,
properties, assets or condition (financial
or otherwise) of the Borrower and the
Guarantors taken as a whole, or (ii) the
withdrawal of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan
during a plan year in which it was a
"substantial employer," as such term is
defined in Section 400l(a)(2) of ERISA,
the incurrence of liability by the Borrower
or any ERISA Affiliate under Section
4064 of ERISA upon the termination of a
Multiple Employer Plan, the imposition
of Withdrawal Liability, or (iii) providing
notice of intent to terminate a Plan
pursuant to Section 4041(c) of ERISA or the
treatment of a Plan amendment as a
termination under Section 4041 of ERISA, if
such amendment requires the
provision of security, or (iv) the
institution of proceedings to terminate a
Plan by the PBGC under Section 4042 of
ERISA, or (v) any other event or
condition (other than the commencement of
the Cases and the failure to have made
any contribution accrued as of the Filing
Date but not paid) which would
<PAGE>
20
reasonably be expected to constitute
grounds under Section 4042 of ERISA for the
termination of, or the appointment of a
trustee to administer, any Plan, or the
imposition of any liability under Title IV
of ERISA (other than for the payment
of premiums to the PBGC in the ordinary
course).
"Three-Month
Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of
deposit reported as being in effect
on such day (or, if such day is not a
Business Day, the next preceding Business
Day) by the Board through the public
information telephone line of the Federal
Reserve Bank of New York (which rate will,
under the current practices of the
Board, be published in Federal Reserve
Statistical Release H. 15(519) during the
week following such day) or, if such rate
is not so reported on such day or such
next preceding Business Day, the average of
the secondary market quotations for
three-month certificates of deposit of
major money center banks in New York City
received at approximately 10:00 a.m., New
York City time, on such day (or, if
such day is not a Business Day, on the next
preceding Business Day) by the Agent
from three negotiable certificate of
deposit dealers of recognized standing
selected by it.
"Total
Commitment" shall mean, at any time, the sum of the Total Tranche
A
Commitment and the Total Tranche B
Commitment at such time.
"Total
Commitment Percentage" shall mean at any time, with respect to
each
Tranche A Lender or Tranche B Lender, the
percentage obtained by dividing such
Lender's Tranche A Commitment and/or
Tranche B Commitment, as the case may be,
by the Total Commitment at such time.
"Total
Commitment Usage" shall mean, at any time, the sum of the Tranche
A
Total Commitment Usage and the outstanding
principal amount of the Tranche B
Loan.
"Total Tranche A
Commitment" shall mean, any time, the sum of the Tranche A
Commitments at such time.
"Total Tranche B
Commitment" shall mean, at any time, (i) prior to the
funding of the Tranche B Loan pursuant to
Section 2.01(b), the sum of the
Tranche B Commitments at such time and (ii)
on and after funding of the Tranche
B Loan pursuant to 2.01(b), the outstanding
principal amount of the Tranche B
Loan at such time.
"Tranche A
Commitment" shall mean the commitment of each Tranche A Lender
to make Tranche A Loans hereunder in the
amount set forth opposite its name in
Annex A hereto or as may be subsequently
set forth in the Register from time to
time, as the case may be, and as may be
reduced from time to time pursuant to
Sections 2.12. The initial aggregate amount
of the Tranche A Commitment is
$200,000,000.
"Tranche A
Commitment Fee" shall have the meaning given such term in
Section 2.22(a).
"Tranche A
Commitment Percentage" shall mean, at any time, with respect to
each Tranche A Lender, the percentage
obtained by dividing its Tranche A
Commitment at such time by the Total
Tranche A Commitment or, if the Tranche A
Commitments have been
<PAGE>
21
terminated, the Tranche A Commitment
Percentage of each Tranche A Lender that
existed immediately prior to such
termination.
"Tranche A
Lender" shall mean each Lender having a Tranche A Commitment.
"Tranche A Loan"
shall have the meaning set forth in Section 2.01(a).
"Tranche A Total
Commitment Usage" shall mean, at any time, the sum of (i)
the aggregate outstanding principal amount
of all Tranche A Loans and (ii) the
aggregate LC Exposure at such time.
"Tranche B
Commitment" shall mean the commitment of each Tranche B Lender
to make such amount of the Tranche B Loan
hereunder in the amount set forth
opposite its name on Annex A hereto or as
may be subsequently set forth in the
Register from time to time, as the case may
be and as the same may be reduced
from time to time pursuant to the last
sentence of Section 2.01(b) and Sections
2.12 and 2.13. The initial aggregate amount
of the Tranche B Commitment is
$100,000,000.
"Tranche B
Commitment Fee" shall have the meaning given such term in
Section 2.22(b).
"Tranche B
Commitment Percentage" shall mean, at any time, with respect to
each Tranche B Lender, the percentage
obtained by dividing its Tranche B
Commitment at such time by the Total
Tranche B Commitment.
"Tranche B
Lender" shall mean each Lender having a Tranche B Commitment.
"Tranche B Loan"
shall have the meaning set forth in Section 2.01(b).
"Transactions"
shall mean the execution, delivery and performance by the
Borrower and Guarantors of this Agreement,
the borrowing of Loans, the use of
the proceeds thereof and the request for
and issuance of Letters of Credit
hereunder.
"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
LIBO Rate or the Alternate Base Rate.
"UCC" shall mean
the Uniform Commercial Code as in effect from time to time
in the State of New York; provided,
however, that if by reason of any provisions
of law, the perfection or the effect of
perfection or non-perfection of the
security interests granted to the Agent
pursuant to the applicable Loan Document
is governed by the Uniform Commercial Code
as in effect in a jurisdiction of the
United States other than New York, then
"UCC" shall mean the Uniform Commercial
Code as in effect from time to time in such
other jurisdiction for purposes of
the provisions of each Loan Document.
"Uncollateralized LC Exposure" shall mean, at any time, (i) the
aggregate
LC Exposure at such time less (ii) the
aggregate LC Exposure for which Cash
Collateralization has
<PAGE>
22
been made in accordance with Section
2.03(j) prior to such time and which Cash
Collateralization is in effect at such
time.
"Unused Total
Tranche A Commitment" shall mean, at any time, (i) the Total
Tranche A Commitment less (ii) the Tranche
A Total Commitment Usage.
"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.
"Work-in-Process" shall mean Inventory which consists of
work-in-process
including without limitation materials
other than Raw Materials, Finished Goods
or saleable products, title to which and
sole ownership of which is vested in
the Borrower or a Guarantor.
SECTION 1.02
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 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
agreement, instrument or 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
Section of, and Exhibits and Schedules to,
this Agreement and (e) the words
"asset" and "property" shall 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 1.03
Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or
financial nature shall be construed in
accordance with GAAP, as in effect from
time to time; provided that, if the
Borrower notifies the Agent that the
Borrower requests an amendment to any
provision hereof to eliminate the effect of
any change occurring after the date
hereof in GAAP or in the application
thereof on the operation of such provision
(or if the Agent notifies the Borrower that
the Required Lenders request an
amendment to any provision hereof for such
purpose), regardless of whether any
such notice is given before or after such
change in GAAP or in the application
thereof, then such provision shall be
interpreted on the basis of GAAP as in
effect and applied immediately before such
change shall have become effective
until such notice shall been withdrawn or
such provision amended in accordance
herewith.
<PAGE>
23
SECTION 1.04 Certain
Post Closing Matters.
(a)
Notwithstanding anything to the contrary contained in this
Agreement,
within the time periods set forth below or
such later date(s) to which the Agent
shall, in its exclusive discretion, agree
in writing, the Borrower shall deliver
to the Agent:
(i) on or prior to the Delivery Date, all UCC searches, if any,
which
the Borrower was
required to deliver pursuant to Section 4.01(j) of this
Agreement and
delivery of which was temporarily waived by the Lenders for
the purposes of
effecting the closing on the Closing Date;
(ii) on or prior to the Delivery Date, all good standing
certificates,
articles or
certificate of incorporation or formation and by-laws which the
Borrower was
required to deliver pursuant to Section 4.01(a)(i), (ii) and
(iii) of this
Agreement and delivery of which was temporarily waived by the
Lenders for the
purposes of effecting the closing on the Closing Date;
provided that
the Borrower may identify to the Agent certain of the
jurisdictions
from which it shall not have obtained good standing
certificates as
of the Closing Date as jurisdictions in which the Borrower
and Guarantors
do not conduct a material amount of business and the
Administrative
Agent may thereafter (but shall not be obligated to) waive
delivery of a
good standing certificate for such jurisdiction(s);
(iii) Schedules 6.01 and 6.10 which the Borrower was required
to
deliver pursuant
to Sections 6.01 and 6.10 of this Agreement, respectively,
and delivery of
which was temporarily waived by the Lenders for the
purposes of
effecting the closing on the Closing Date. The Agent agrees
that the
Borrower shall be permitted to redeliver, supplement, modify
and
replace the
Schedules to this Agreement on or before the Delivery Date.
(b)
Notwithstanding anything to the contrary contained in this
Agreement or
the Security and Pledge Agreement, on or
prior to the Delivery Date, the
Borrower shall deliver to the Collateral
Agent:
(i) Schedules 3, 5 and 6, which the Borrower and the Guarantors
were
required to
deliver Sections 4(d), 4(g) and 1(e) of the Security and Pledge
Agreement,
respectively, and delivery of which was temporarily waived by
the Lenders for
the purposes of effecting the closing on the Closing Date.
The Agent agrees
that the Borrower shall be permitted to redeliver,
supplement,
modify and replace the Schedules to the Security and Pledge
Agreement on or
before the Delivery Date.
(c) All
conditions precedent and representations contained in the Loan
Documents shall be deemed modified to the
extent necessary to effect the
foregoing (and to permit the taking of the
actions described above within the
time periods required above); provided,
that to the extent any representation
and warranty would not be true in all
material respects because the foregoing
actions were not taken on the Closing Date,
the respective representation and
warranty shall be required to be true and
correct in all material respects at
the time the respective action is taken in
accordance with the foregoing
provisions of this
<PAGE>
24
Section 1.04. The acceptance of the
benefits of the making of each Loan and the
issuance of each Letter of Credit shall
constitute a representation, warranty
and covenant by the Borrower to each of the
Lenders that the actions required
pursuant to this Section 1.04 will be taken
within the relevant time periods
referred to in this Section 1.04 and that,
at such time, all representations and
warranties contained in this Agreement
shall then be true and correct in all
material respects without any modification
pursuant to this Section 1.04.
(d) No later
than 60 days after the Closing Date, the Borrower and the
Guarantors shall have executed and
delivered an amendment to this Agreement
setting forth the financial covenant levels
for Sections 6.4 and 6.5, which
levels will be determined by the Agent
based on the Post Closing Date Budgets
and which amendments shall be satisfactory
to Agent.
SECTION 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.01
Commitments of the Lenders.
(a) Tranche A
Revolving Commitment. (i)Each Tranche A Lender severally and
not jointly with the other Tranche A
Lenders agrees, upon the terms and subject
to the conditions herein set forth, to make
revolving credit loans (each a
"Tranche A Loan" and collectively, the
"Tranche A Loans") to the Borrower at any
time and from time to time during the
Availability Period in an aggregate
principal amount not to exceed, when added
to its LC Exposure, the Tranche A
Commitment of such Lender, which Tranche A
Loans may be repaid and reborrowed in
accordance with the provisions of this
Agreement; provided that at no time shall
the sum of the then outstanding aggregate
principal amount of the Tranche A
Loans plus the then LC Exposure exceed the
lesser of (i) the Total Tranche A
Commitment at such time and (ii) prior to
the entry of the Final Order, the
amount permitted by the Interim Order.
(ii) Each Borrowing of a Tranche A Loan shall be made by the
Tranche A
Lenders pro rata
in accordance with their respective Tranche A Commitments;
provided,
however, that the failure of any Tranche A Lender to make any
Tranche A Loan
shall not in itself relieve the other Tranche A Lenders of
their
obligations to lend.
(b) Tranche B
Term Loan Commitment. (i) Each Tranche B Lender, severally
and not jointly with the other Tranche B
Lenders agrees, upon the terms and
subject to the conditions herein set forth,
to make available to the Borrower
term loans in an aggregate principal amount
equal to such Tranche B Lender's
Tranche B Commitment (all such loans,
collectively, the "Tranche B Loan"). Upon
the satisfaction (or waiver) of the
conditions set forth in Section 4.03, each
Tranche B Lender shall make its portion of
the Tranche B Loan to the Borrower in
the amount equal to its Tranche B
Commitment. Once repaid, the Tranche B Loan
may not be reborrowed and the Total Tranche
B Commitment shall be automatically
and permanently reduced by an amount equal
to the amount so repaid.
(ii) The Tranche B Loan shall be made by the Tranche B Lenders
pro
rata in
accordance with their respective Tranche B Commitment;
provided,
however, that
the failure of any Tranche B Lender to make its Tranche B
Loan shall not in
itself relieve the other Tranche B Lenders of their
obligations to
lend.
<PAGE>
25
(c) (i)
Notwithstanding any provision of this Agreement to the contrary,
at
no time from and after the entry of the
Final Order shall the Total Commitment
Usage exceed the Borrowing Base. The
Lenders shall have no obligation to extend
credit hereunder if, after giving effect
thereto, Total Commitment Usage would
exceed the Borrowing Base.
(ii) Notwithstanding any provision of this Agreement to the
contrary,
at no time prior
to the entry of the Final Order shall the Total Commitment
Usage exceed
$150,000,000 unless (A) the Agent, prior to the entry of the
Final Order,
shall have been satisfied with the results of its due
diligence
investigation of the assets, liabilities, businesses, prospects
and financial
affairs of the Borrower and its Subsidiaries, (B) the Agent
shall have
determined the current levels for Sections 6.4 and 6.5 in
accordance with
Section 1.04(d) and (c) the Final Order shall have been
entered. In
addition, during each week prior to the entry of the Final
Order the Total
Commitment Usage shall be substantially in compliance with
the projected Total Commitment
Usage set forth for such week in the Closing
Date Budget, as
determined by the Agent in its sole discretion.
(d) Other than
as otherwise provided in Section 2.04(b), each Borrowing
shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender
at its option may make any
Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such
Lender to make such Eurodollar Loan;
provided that any exercise of such option
shall not affect the obligation of the
Borrower to repay such Loan in accordance
with the terms of this Agreement.
(e) At the
commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an
aggregate amount that is in an integral
multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be
in an aggregate amount that is an
integral multiple of $500,000 and not less
than $1,000,000 provided, that an ABR
Borrowing may be in an aggregate amount
that is equal to the entire Unused Total
Tranche A Commitment or that is required to
finance the reimbursement of an LC
Disbursement as contemplated by Section
2.03(e). Borrowings of more than one
Type may be outstanding at the same
time.
(f)
Notwithstanding any other provision of this Agreement, the
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.
SECTION 2.02 Reserved.
SECTION 2.03
Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower
may request the issuance of Letters of
Credit for its own account or the account
of any Subsidiary, in a form
reasonably acceptable to the Agent and the
Issuing Lender, and the Issuing
Lender hereby agrees to issue such
requested Letters of Credit, at any time and
from time to time during the Availability
Period. In the event of any
inconsistency between the terms and
conditions of this Agreement and the terms
and conditions of any form of letter of
credit application or other agreement
submitted by the Borrower to, or entered
into by the Borrower with, the Issuing
Lender relating to any Letter of Credit,
the terms and conditions of this
Agreement shall control. At no time shall a
Letter of Credit be issued if the
<PAGE>
26
sum of the then outstanding aggregate
principal amount of the Tranche A Loans
plus the LC Exposure (inclusive of the
amount of such proposed Letter of Credit)
would exceed the lesser of (i) the Total
Tranche A Commitment at such time and
(ii) prior to the entry of the Final Order,
the amount permitted by the Interim
Order.
(b) Notice of
Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of
Credit (or the amendment, renewal or
extension of an outstanding Letter of
Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic
communication, if arrangements for doing
so have been approved by the Issuing
Lender) to the Issuing Lender and the Agent
(reasonably in advance of the requested
date of issuance, amendment, renewal or
extension) a notice requesting the issuance
of a Letter of Credit, or
identifying the Letter of Credit to be
amended, renewed or extended, and
specifying the date of issuance, amendment,
renewal or extension (which shall be
a Business Day), the date on which such
Letter of Credit is to expire (which
shall comply with paragraph (c) of this
Section), the amount of such Letter of
Credit, the Person for whose account such
Letter of Credit shall be issued, the
name and address of the beneficiary thereof
and such other information as shall
be necessary to prepare, amend, renew or
extend such Letter of Credit. If
requested by the Issuing Lender, the
Borrower also shall submit a letter of
credit application on the Issuing Lender's
standard form in connection with any
request for a Letter of Credit. A Letter of
Credit shall be issued, amended,
renewed or extended only if (and upon
issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall
be deemed to represent and warrant
that), after giving effect to such
issuance, amendment, renewal or extension the
LC Exposure shall not exceed $25,000,000
prior to the entry of the Final Order
and $50,000,000 thereafter. No Issuing
Lender (other than the Agent or an
Affiliate thereof) shall permit any such
issuance, renewal, extension or
amendment resulting in an increase in the
amount of any Letter of Credit to
occur without first obtaining written
confirmation from the Agent that it is
then permitted under this Agreement.
(c) Expiration
Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the
date one year after the date of the
issuance of such Letter of Credit (or, in
the case of any renewal or extension
thereof, one year after such renewal or
extension) and (ii) the date that is 180
days after the Maturity Date; provided that
any Letter of Credit with a one-year
term may provide for the renewal thereof
for additional one-year periods (which
shall in no event extend beyond the date
referred to in clause (ii) above).
(d)
Participations. By the issuance of a Letter of Credit (or an
amendment
to a Letter of Credit including any
amendment increasing the amount thereof) and
without any further action on the part of
the Issuing Lender or the Tranche A
Lenders, the Issuing Lender hereby grants
to each Tranche A Lender, and each
Tranche A Lender hereby acquires from the
Issuing Lender, a participation in
such Letter of Credit equal to such Tranche
A Lender's Tranche A Commitment
Percentage of the aggregate amount
available to be drawn under such Letter of
Credit. In consideration and in furtherance
of the foregoing, each Tranche A
Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the
account of the Issuing Lender, such Tranche
A Lender's Tranche A Commitment
Percentage of each LC Disbursement made by
the Issuing Lender and not reimbursed
by the Borrower on the date due as provided
in paragraph (e) of this Section, or
of any reimbursement payment required to be
refunded to the Borrower for any
reason. Each Tranche A Lender acknowledges
and agrees that
<PAGE>
27
its obligation to acquire participations
pursuant to this paragraph in respect
of Letters of Credit is absolute and
unconditional and shall not be affected by
any circumstance whatsoever, including any
amendment, renewal or extension of
any Letter of Credit or the occurrence of
an Event of Default or reduction or
termination of the Tranche A Commitments,
and that each such payment shall be
made without any offset, abatement,
withholding or reduction whatsoever.
(e)
Reimbursement. If the Issuing Lender shall make any LC Disbursement
in
respect of a Letter of Credit (including
any Letter of Credit issued for the
account of any Subsidiary), the Borrower
shall reimburse such LC Disbursement by
paying to the Agent an amount equal to such
LC Disbursement not later than 12:00
noon, New York City time, on the date that
such LC Disbursement is made, if the
Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m.,
New York City time, on such date, or, if
such notice has not been received by
the Borrower prior to such time on such
date, then not later than 12:00 noon,
New York City time, on (i) the Business Day
that the Borrower receives such
notice, if such notice is received prior to
10:00 a.m., New York City time, on
the day of receipt, or (ii) the Business
Day immediately following the day that
the Borrower receives such notice, if such
notice is not received prior to such
time on the day of receipt; provided, that,
the Borrower may, subject to the
conditions to borrowing set forth herein,
request in accordance with Section
2.04(a) that such payment be financed with
an ABR Borrowing in an equivalent
amount and, to the extent so financed, the
Borrower's obligation to make such
payment shall be discharged and replaced by
the resulting ABR Borrowing. If the
Borrower fails to make such payment when
due, the Agent shall notify each
Tranche A Lender of the applicable LC
Disbursement, the payment then due from
the Borrower in respect thereof and such
Tranche A Lender's Tranche A Commitment
Percentage thereof. Promptly following
receipt of such notice, each Tranche A
Lender shall pay to the Agent its Tranche A
Commitment Percentage of the payment
then due to the Issuing Lender from the
Borrower, in the same manner as provided
in Section 2.05 with respect to Tranche A
Loans made by such Tranche A Lender
(and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of
the Tranche A Lenders), and the Agent shall
promptly pay to the Issuing Lender
the amounts so received by it from the
Tranche A Lenders. Promptly following
receipt by the Agent of any payment from
the Borrower pursuant to this
paragraph, the Agent shall distribute such
payment to the Issuing Lender or, to
the extent that Tranche A Lenders have made
payments pursuant to this paragraph
to reimburse the Issuing Lender, then to
such Tranche A Lenders and the Issuing
Lender as their interests may appear. Any
payment made by a Tranche A Lender
pursuant to this paragraph to reimburse the
Issuing Lender for any LC
Disbursement (other than the funding of ABR
Loans as contemplated above) shall
not constitute a Tranche A Loan and shall
not relieve the Borrower of its
obligation to reimburse such LC
Disbursement.
(f) Obligations
Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e)
of this Section shall be absolute,
unconditional and irrevocable, and shall be
performed strictly in accordance
with the terms of this Agreement under any
and all circumstances whatsoever and
irrespective of (i) any lack of validity or
enforceability of any Letter of
Credit or this Agreement, or any term or
provision therein, (ii) any draft or
other document presented under a Letter of
Credit proving to be forged,
fraudulent or invalid in any respect or any
statement therein being untrue or
inaccurate in any respect, (iii) payment by
the Issuing Lender under a Letter of
Credit against presentation of a draft or
other
<PAGE>
28
document that does not comply with the
terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever,
whether or not similar to any of the
foregoing, that might, but for the
provisions of this Section, constitute a
legal or equitable discharge of, or provide
a right of setoff against, the
Borrower's obligations hereunder. Neither
the Agent, the Tranche A Lenders nor
the Issuing Lender, nor any of their
Related Parties, shall have any liability
or responsibility by reason of or in
connection with the issuance or transfer of
any Letter of Credit or any payment or
failure to make any payment thereunder
(irrespective of any of the circumstances
referred to in the preceding
sentence), or any error, omission,
interruption, loss or delay in transmission
or delivery of any draft, notice or other
communication under or relating to any
Letter of Credit (including any document
required to make a drawing thereunder),
any error in interpretation of technical
terms or any consequence arising from
causes beyond the control of the Issuing
Lender; provided, that the foregoing
shall not be construed to excuse the
Issuing Lender from liability to the
Borrower to the extent of any direct
damages (as opposed to consequential
damages, claims in respect of which are
hereby waived by the Borrower to the
extent permitted by applicable law)
suffered by the Borrower that are caused by
the Issuing Lender's failure to exercise
care when determining whether drafts
and other documents presented under a
Letter of Credit comply with the terms
thereof. The parties hereto expressly agree
that, in the absence of gross
negligence, bad faith or willful misconduct
on the part of the Issuing Lender
(as finally determined by a court of
competent jurisdiction), the Issuing Lender
shall be deemed to have exercised care in
each such determination. In
furtherance of the foregoing and without
limiting the generality thereof, the
parties agree that, with respect to
documents presented which appear on their
face to be in substantial compliance with
the terms of a Letter of Credit, the
Issuing Lender may, in its sole discretion,
either accept and make payment upon
such documents without responsibility for
further investigation, regardless of
any notice or information to the contrary,
or refuse to accept and make payment
upon such documents if such documents are
not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement
Procedures. The Issuing Lender shall, promptly following
its receipt thereof, examine all documents
purporting to represent a demand for
payment under a Letter of Credit. The
Issuing Lender shall promptly notify the
Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for
payment and whether the Issuing Lender has
made or will make an LC Disbursement
thereunder; provided, that any failure to
give or delay in giving such notice
shall not relieve the Borrower of its
obligation to reimburse the Issuing Lender
and the Tranche A Lenders with respect to
any such LC Disbursement.
(h) Interim
Interest. If the Issuing Lender shall make any LC Disbursement,
then, unless the Borrower shall reimburse
such LC Disbursement in full on the
date such LC Disbursement is made, the
unpaid amount thereof shall bear
interest, for each day from and including
the date such LC Disbursement is made
to but excluding the date that the Borrower
reimburses such LC Disbursement, at
the rate per annum then applicable to ABR
Loans; provided, that, if the Borrower
fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of
this Section, then Section 2.09 shall
apply. Interest accrued pursuant to this
paragraph shall be for the account of the
Issuing Lender, except that interest
accrued on and after the date of payment by
any Tranche A Lender pursuant to
paragraph (e) of this Section to reimburse
the Issuing Lender shall be for the
account of such Tranche A Lender to the
extent of such payment.
<PAGE>
29
(i) Replacement
of the Issuing Lender. The Issuing Lender may be replaced
at any time by written agreement among the
Borrower, the Agent, the replaced
Issuing Lender and the successor Issuing
Lender. The Agent shall notify the
Tranche A Lenders of any such replacement
of the Issuing Lender. At the time any
such replacement shall become effective,
the Borrower shall pay all unpaid fees
accrued for the account of the replaced
Issuing Lender pursuant to Section 2.22.
From and after the effective date of any
such replacement, (i) the successor
Issuing Lender shall have all the rights
and obligations of the Issuing Lender
under this Agreement with respect to
Letters of Credit to be issued thereafter
and (ii) references herein to the term
"Issuing Lender" shall be deemed to refer
to such successor or to any previous
Issuing Lender, or to such successor and
all previous Issuing Lenders, as the
context shall require. After the
replacement of a Issuing Lender hereunder,
the replaced Issuing Lender shall
remain a party hereto and shall continue to
have all the rights and obligations
of a Issuing Lender under this Agreement
with respect to Letters of Credit
issued by it prior to such replacement, but
shall not be required to issue
additional Letters of Credit.
(j) Replacement
of Letters of Credit; Cash Collateralization. Upon or prior
to the occurrence of the Termination Date
the Borrower shall at its option
either (i) cause all Letters of Credit
which expire after the Termination Date
to be returned to the Issuing Lender
undrawn and marked "cancelled" or (iii)
either (x) provide one or more
"back-to-back" letters of credit to one or more
Issuing Lenders in a form reasonably
satisfactory to each such Issuing Lender
that is a beneficiary of such
"back-to-back" letter of credit and the Agent,
issued by a bank reasonably satisfactory to
each such Issuing Lender and the
Agent, and/or (y) deposit cash in the
Letter of Credit Account, the sum of (x)
and (y) of the foregoing sentence to be in
an aggregate amount equal to 105% of
Uncollateralized LC Exposure as collateral
security for the Borrower's
reimbursement obligations in connection
therewith, such cash to be remitted to
the Borrower upon and to the extent of the
expiration, cancellation or other
termination or satisfaction of such
reimbursement obligations ("Cash
Collateralization"). The Agent shall have
exclusive dominion and control,
including the exclusive right of
withdrawal, over such account. Other than any
interest earned on the investment of such
deposits, which investments shall be
made at the option and sole discretion of
the Agent (in accordance with its
usual and customary practices for
investments of this type) and at the
Borrower's risk and reasonable expense,
such deposits shall not bear interest.
Interest or profits, if any, on such
investments shall accumulate in such
account. Moneys in such account shall be
applied by the Agent to reimburse the
Issuing Lender for LC Disbursements for
which it has not been reimbursed and, to
the extent not so applied, shall be held
for the satisfaction of the
reimbursement obligations of the Borrower
for the LC Exposure at such time.
(k) Issuing
Lender Agreements. Unless otherwise requested by the Agent,
each Issuing Lender shall report in writing
to the Agent (i) on the first
Business Day of each week, the daily
activity (set forth by day) in respect of
Letters of Credit during the immediately
preceding week, including all
issuances, extensions, amendments and
renewals, all expirations and
cancellations and all disbursements and
reimbursements, (ii) on or prior to each
Business Day on which such Issuing Lender
expects to issue, amend, renew or
extend any Letter of Credit, the date of
such issuance, amendment, renewal or
extension, and the aggregate face amount of
the Letters of Credit to be issued,
amended, renewed, or extended by it and
outstanding after giving effect to such
issuance, amendment, renewal or extension
occurred (and whether the amount
thereof changed), it being understood that
such Issuing Lender shall
<PAGE>
30
not permit any issuance, renewal, extension
or amendment resulting in an
increase in the amount of any Letter of
Credit to occur without first obtaining
written confirmation from the Agent that it
is then permitted under this
Agreement, (iii) on each Business Day on
which such Issuing Lender makes any LC
Disbursement, the date of such LC
Disbursement and the amount of such LC
Disbursement, (iv) on any Business Day on
which the Borrower fails to reimburse
an LC Disbursement required to be
reimbursed to such Issuing Lender on such day,
the date of such failure, the Borrower and
the amount of such LC Disbursement
and (v) on any other Business Day, such
other information as the Agent shall
reasonably request.
SECTION 2.04
Requests for Borrowings.
(a) Tranche A
Loans. Unless otherwise agreed to by the Agent in connection
with making the initial Loans, to request a
Borrowing of Tranche A Loans, the
Borrower shall notify the Agent of such
request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 1:00
p.m., New York City time, three (3)
Business Days before the date of the
proposed Borrowing and (b) in the case of
an ABR Borrowing, not later than 12:00
p.m., New York City time, on the date of
the proposed Borrowing; provided, that any
such notice of an ABR Borrowing to
finance the reimbursement of an LC
Disbursement as contemplated by Section
2.03(e) may be given not later than 11:00
a.m., New York City time, on the date
of the proposed Borrowing. Each such
telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly
by hand delivery, courier or
telecopy to the Agent of a written
Borrowing Request in a form reasonably
acceptable to the Agent and signed by the
Borrower. Each such telephonic and
written Borrowing Request shall specify the
following information in compliance
with Section 2.01(a):
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Borrowing;
and
(iv) in the case of a Eurodollar Borrowing, the initial
Interest
Period to be
applicable thereto, which shall be a period contemplated by
the definition
of the term "Interest Period".
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
Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one
month's duration. Promptly following
receipt of a Borrowing Request in
accordance with this Section 2.04(a), the
Agent shall advise each Tranche A Lender of
the details thereof and of the
amount of such Tranche A Lender's Tranche A
Loan to be made as part of the
requested Borrowing.
(b) Tranche B
Loan. To request the Borrowing of the Tranche B Loan, the
Borrower shall notify the Agent of such
request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 1:00
p.m., New York City time, three (3)
Business Days before the date of the
proposed Borrowing and (a) in the case of
an ABR Borrowing, not later than 12:00
<PAGE>
31
noon, New York City time on the date of the
proposed Borrowing. Such telephonic
notice shall be irrevocable and shall be
confirmed promptly by hand delivery,
courier or telecopy to the Agent of a
written Borrowing Request in a form
reasonably acceptable to the Agent and
signed by the Borrower. Such telephone
and written Borrowing Request shall specify
the following information in
compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing (which shall
be
the amount of
the Total Tranche B Commitment);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the portion of the Tranche B Loan that is to initially be an
ABR
Borrowing and
that is to initially be a Eurodollar Borrowing; and
(iv) in the case of such portion of the Tranche B Loan that is
a
Eurodollar
Borrowing, the initial Interest Period applicable thereto,
which
shall be a
period contemplated by the definition of the term "Interest
Period".
If no election as to the Type of Borrowing
is specified, then the Tranche B Loan
shall initially be an ABR Borrowing. If no
Interest Period is specified with
respect to any portion of the Tranche B
Loan that is to initially be a
Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an
Interest Period of one month's duration.
Promptly following receipt of the
Borrowing Request in accordance with this
Section 2.04(b), the Agent shall
advise each Tranche B Lender of the details
thereof and of the amount of such
Tranche B Lender's Loan to be made as part
of the requested Borrowing (which
shall be equal to such Tranche B Lender's
Tranche B Commitment). Notwithstanding
that the initial Borrowing of the Tranche B
Loan may be requested as a
Eurodollar Borrowing, in the event the
Agent, in its reasonable discretion,
determines that such Eurodollar Borrowing
is not practicable, such initial
Borrowing shall be an ABR Borrowing.
SECTION 2.05
Funding of Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed
date thereof by wire transfer of
immediately available funds by 2:00 p.m.,
New York City time, to the account of
the Agent most recently designated by it
for such purpose by notice to the
Lenders. The Agent will make such Loans
available to the Borrower by promptly
crediting the amounts so received, in like
funds, to an account of the Borrower
maintained with the Agent and designated by
the Borrower in the applicable
Borrowing Request; provided that ABR Loans
made to finance the reimbursement of
an LC Disbursement as provided in Section
2.03(e) shall be remitted by the Agent
to the Issuing Lender.
(b) Unless the
Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such
Lender will not make available to the
Agent such Lender's share of such
Borrowing, the Agent may assume that such
Lender has made such share available on
such date in accordance with paragraph
(a) of this Section and may, in reliance
upon such assumption, make available to
the Borrower a corresponding amount. In
such event, if a Lender has not in fact
made its share of the applicable Borrowing
available to the Agent, then the
applicable Lender and the Borrower
severally agree to pay to the Agent
<PAGE>
32
forthwith on demand such corresponding
amount with interest thereon, for each
day from and including the date such amount
is made available to the Borrower to
but excluding the date of payment to the
Agent, at (i) in the case of such
Lender, the greater of the Federal Funds
Effective Rate and a rate determined by
the Agent in accordance with banking
industry rules on interbank compensation or
(ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If
such Lender pays such amount to the Agent,
then such amount shall constitute
such Lender's Loan included in such
Borrowing.
SECTION 2.06
Interest Elections. (a) Each Borrowing of Tranche A Loans and
the Borrowing of the Tranche B Loan
initially shall be of the Type or, in the
case of the Tranche B Loan, Types specified
in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing,
shall have an initial Interest
Period as specified in such Borrowing
Request. Thereafter, the Borrower may
elect to convert such Borrowings to a
different Type or to continue such
Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods
therefor, all as provided in this Section.
The 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
Tranche A Loans or Tranche B Loan, as the
case may be, comprising such
Borrowing, and the Tranche A Loans and
Tranche B Loan, as the case may be,
comprising each such Type shall be
considered a separate Borrowing.
(b) To make an
Interest Election Request pursuant to this Section, the
Borrower shall notify the Agent of such
election by telephone by the time that a
Borrowing Request would be required under
Section 2.04(a) or Section 2.04(b) if
the Borrower were requesting a Borrowing of
the Type resulting from such
election to be made on the effective date
of such election. Each such telephonic
Interest Election Request shall be
irrevocable and shall be confirmed promptly
by hand delivery, courier or telecopy to
the Agent of a written Interest
Election Request in a form approved by the
Agent and signed by the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify
the
following information in compliance with
Section 2.01:
(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
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar 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".
<PAGE>
33
If any such Interest Election Request
requests a Eurodollar Borrowing but does
not specify an Interest Period, then the
Borrower shall be deemed to have
selected an Interest Period of one month's
duration.
(d) Promptly
following receipt of an Interest Election Request, the Agent
shall advise each Lender of the details
thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the
Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing
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, then, so
long as an Event of Default is
continuing (i) no outstanding Borrowing may
be converted to or continued as a
Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of
the Interest Period applicable
thereto.
SECTION 2.07
[Reserved]
SECTION 2.08
Interest on Loans.
(a) Subject to
the provisions of Section 2.09, each ABR Loan shall bear
interest (computed on the basis of the
actual number of days elapsed over a year
of 360 days or, when the Alternate Base
Rate is based on the Prime Rate, a year
with 365 days or 366 days in a leap year)
at a rate per annum equal to the
Alternate Base Rate plus (i) 1.50% in the
case of Tranche A Loans and (ii) 2.50%
in the case of the Tranche B Loan.
(b) Subject to
the provisions of Section 2.09, each Eurodollar Loan shall
bear interest (computed on the basis of the
actual number of days elapsed over a
year of 360 days) at a rate per annum
equal, dur
