exv10w1
Exhibit 10.1
[CONFORMED COPY]
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made on March 31, 2011, by and
among COLTEC INDUSTRIES INC, a Pennsylvania corporation (individually and, in its capacity as the
representative of the other Borrowers pursuant to Section 4.4, Coltec), COLTEC INDUSTRIAL
PRODUCTS LLC, a Delaware limited liability company (CIP), GGB LLC, a Delaware limited
liability company (GGB LLC), CORROSION CONTROL CORPORATION, a Colorado corporation
(CCC), STEMCO LP, a Texas limited partnership (Stemco LP (TX)), and STEMCO
KAISER INCORPORATED, a Michigan corporation (Kaiser; Coltec, CIP, GGB LLC, CCC, Stemco LP
(TX) and Kaiser, each individually referred to herein as a Borrower and collectively as
Borrowers), ENPRO INDUSTRIES, INC., a North Carolina corporation (Parent),
COLTEC INTERNATIONAL SERVICES CO., a Delaware corporation (Coltec International), GGB,
INC., a Delaware corporation (GGB Inc.), STEMCO HOLDINGS, INC., a Delaware corporation
(Stemco Holdings), COMPRESSOR PRODUCTS HOLDINGS, INC., a Delaware corporation
(Compressor Products), and COMPRESSOR SERVICES HOLDINGS, INC., a Delaware corporation
(Compressor Services; Coltec International, GGB Inc., Stemco Holdings, Compressor
Products, and Compressor Services each individually referred to herein as a Subsidiary
Guarantor and collectively as Subsidiary Guarantors); the various financial
institutions listed on the signature pages hereof (together with their respective successors and
permitted assigns, the Lenders); BANK OF AMERICA, N.A., a national banking association,
in its capacity as a Lender, collateral and administrative agent for the Lenders pursuant to
Section 13 (together with its successors in such capacity, Agent) and Issuing Bank; and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as sole lead arranger and sole book manager
(Arranger). Capitalized terms used in this Agreement have the meanings assigned to them
in Section 1 and elsewhere in this Agreement.
Recitals:
Coltec, CIP, GGB LLC, CCC, Stemco LP (TX) and Kaiser (collectively, Existing
Borrowers), certain financial institutions (collectively, Existing Lenders) and
Agent are parties to that certain Amended and Restated Loan and Security Agreement dated April 26,
2006 (as at any time amended, modified, supplemented or restated, the Existing Loan
Agreement), pursuant to which (x) Existing Lenders made certain revolving credit loans,
letters of credit and other financial accommodations available to Existing Borrowers, and (y)
Existing Borrowers granted Agent a security interest in all of the collateral described therein as
security for all of the Obligations (as defined therein).
Borrowers have requested that the Existing Loan Agreement be amended and restated in its
entirety to become effective and binding on Borrowers, Parent and Subsidiary Guarantors pursuant to
the terms hereof, and Lenders (including Existing Lenders that are parties hereto) have agreed,
subject to the terms of this Agreement, to amend and restate the Existing Loan Agreement in its
entirety to read as set forth herein, and it has been agreed by the parties hereto that (a) the
commitments which Existing Lenders that are parties hereto extended to Borrowers under the Existing
Loan Agreement and the commitments of new Lenders that become parties hereto shall be extended or
advanced upon the amended and restated terms and conditions contained in this Agreement, (b) the
loans and other obligations outstanding under the Existing Loan Agreement shall be governed by and
deemed to be outstanding under the amended and restated terms and conditions contained herein, and
(c) all security interests previously granted by Borrowers, Parent and Subsidiary Guarantors
pursuant to the Existing Loan Agreement that remain as security for the Obligations (as defined
hereunder) are hereby renewed and continued, and all such security interests shall remain in full
force and effect as security for the Obligations (as defined herein).
Borrowers believe that the consolidation of all revolving credit loans and other credit
accommodations under this Agreement will enhance the aggregate borrowing powers of each Borrower
and ease the administration of their revolving credit loan relationship with Lenders, all to
the mutual advantage of Borrowers. As such, each Borrower has agreed to be jointly and severally
liable for loans and all other obligations under this Agreement and to guarantee the obligations of
each of the other Borrowers under this Agreement and each of the other Loan Documents.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the
parties hereto, intending to be bound hereby, agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1. Definitions.
As used in this Agreement, the following terms shall have the following meanings ascribed to
them (terms used in the singular to have the same meaning when used in the plural, and vice versa):
Accommodation Payment as defined in Section 5.10.4.
Account shall have the meaning given to the term account in the UCC and shall
include any right of an Obligor to payment for goods sold or leased or for services rendered that
is not evidenced by an Instrument or Chattel Paper, whether or not earned by performance.
Account Debtor a Person who is or becomes obligated under or on account of an
Account, Chattel Paper or General Intangible.
AcquireCo Compressor Products International Canada, Inc., a company organized under
the laws of Canada.
AcquireCo Note that certain promissory note made by AcquireCo to the order of
Compressor Products dated as of February 22, 2011, and in the original principal amount of CDN
$8,145,803.61.
Adjusted LIBOR Rate for any Interest Period with respect to a LIBOR Loan, the per
annum rate of interest (rounded upward, if necessary, to the nearest 1/16th of 1%), determined by
Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement of such
Interest Period, for a term comparable to such Interest Period, equal to: (a) the British Bankers
Association LIBOR Rate (BBA LIBOR), as published by Reuters (or other commercially
available source designated by Agent); or (b) if BBA LIBOR is not available for any reason, the
interest rate at which Dollar deposits in the approximate amount of the LIBOR Loan would be offered
by Agents London branch to major banks in the London interbank Eurodollar market. If the Board of
Governors imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the
foregoing rate, divided by 1 minus the Reserve Percentage.
Adjusted Net Earnings with respect to Parent and its consolidated Subsidiaries for
any fiscal period, net income after provision for income taxes for such fiscal period, as
determined in accordance with GAAP and reported on the financial statements delivered in accordance
with Section 10.1.3 for such period, excluding any and all of the following included in such net
income: (a) gain or loss arising from the sale of any capital assets; (b) gain or non-cash loss
arising from any write-up or write down in the book value of any asset; (c) earnings or losses of
any Person, substantially all the assets of which have been acquired by Parent or any consolidated
Subsidiary in any manner, to the extent realized by such other Person prior to the date of
acquisition; (d) earnings of any Person (other than a consolidated Subsidiary) in which Parent or
any consolidated Subsidiary has an ownership interest unless (and only to the extent) such earnings
shall actually have been received by Parent or any consolidated Subsidiary in
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the form of cash distributions; (e) earnings or losses of any Person to which assets of Parent
or any consolidated Subsidiary shall have been sold, transferred or disposed of, or into which
Parent or any Subsidiary shall have been merged, or which has been a party with Parent or any
Subsidiary to any consolidation or other form of reorganization, prior to the date of such
transaction; (f) non-cash gain or non-cash loss arising from the acquisition of debt or equity
securities of Parent or any of its Subsidiaries or from cancellation or forgiveness of Debt; (g)
non-cash gain or non-cash loss arising from extraordinary items, as determined in accordance with
GAAP, or from any other non-recurring transaction; and (h) non-cash gain or non-cash loss arising
from or relating to Hedging Agreements, in each case as determined by Parent in accordance with
GAAP.
Affiliate a Person (i) who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, another Person; (ii) who
beneficially owns or holds 10% or more of any class of the Equity Interests of another Person;
(iii) 10% or more of the Equity Interests with power to vote of which is beneficially owned or held
by another Person or a Subsidiary of another Person; or (iv) who is an officer, director, partner
or managing member who controls another Person. For purposes hereof, control means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of any Equity Interest, by contract or
otherwise.
Agent as defined in the preamble to this Agreement.
Agent Indemnitees Agent, Arranger and their respective Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
Agent Professionals attorneys, accountants, appraisers, business valuation experts,
environmental engineers or consultants, turnaround consultants and other professionals or experts
retained by Agent.
Aggregate Revolver Outstandings at any date of determination, without duplication,
the sum of (a) the unpaid balance of Revolver Loans, (b) the aggregate amount of Pending Revolver
Loans, (c) one hundred percent (100%) of the aggregate undrawn face amount of all outstanding
Letters of Credit, and (d) the aggregate amount of any unpaid reimbursement obligations in respect
of Letters of Credit.
Agreement this Second Amended and Restated Loan and Security Agreement and all
Exhibits and Schedules thereto.
Allocable Percentage as defined in Section 5.10.4.
Allwest Allwest Compressor Products ULC, a company organized under the laws of
Canada.
Allwest Note that certain loan agreement made by Allwest to the order of Compressor
Products dated as of May 31, 2006, and in the original principal amount of CDN $10,125,000.
Anchor The Anchor Packing Company, a North Carolina corporation.
Anti-Terrorism Laws any laws relating to terrorism or money laundering, including
Executive Order No. 13224 and the USA PATRIOT Act.
Applicable Law all laws, rules and regulations applicable to the Person, conduct,
transaction, covenant, Loan Document or Material Contract in question; all provisions of all
applicable state, federal
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and foreign constitutions, statutes, rules, regulations and orders of Governmental
Authorities; and all orders, judgments and decrees of all courts and arbitrators.
Applicable Margin a percentage on a per annum basis equal to 1.00% with respect to
Revolver Loans that are Base Rate Loans and 2.00% with respect to Revolver Loans that are LIBOR
Loans, provided, that, following Agents receipt of the financial statements and Compliance
Certificate required pursuant to Section 10.1.3 for each Fiscal Quarter ending on or after June 30,
2011, the Applicable Margin shall be increased or (if no Default or Event of Default exists)
decreased (provided that upon any waiver or cure of an applicable Event of Default,
the decrease to the Applicable Margin shall be implemented on the Business Day next succeeding the
date of such waiver or cure), based upon Average Availability, as follows:
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|
|
|
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Level |
|
Average Availability |
|
LIBOR Loans |
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Base Rate Loans |
I |
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<$30 million |
|
2.50% |
|
1.50% |
II |
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≥$30 million - <$60 million |
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2.25% |
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1.25% |
III |
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≥$60 million |
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2.00% |
|
1.00% |
The Applicable Margin shall be subject to reduction or increase, as applicable and as set forth in
the table above, on a quarterly basis according to Average Availability for the Fiscal Quarter
period ending on the last day of each Fiscal Quarter. Except as set forth in the last sentence
hereof (or in the parenthetical set forth above), any such increase or reduction in the Applicable
Margin provided for herein shall be effective three (3) Business Days after receipt by Agent of the
financial statements and corresponding Compliance Certificate for each Fiscal Quarter. If the
financial statements and the Compliance Certificate are not received by Agent by the date required
pursuant to Section 10.1.3 (after giving effect to the applicable cure period set forth in Section
12.1.3), at the election of the Required Lenders the Applicable Margin shall be determined based on
Level I in the above table until such time as such financial statements and Compliance Certificate
are received and any Event of Default resulting from a failure timely to deliver such financial
statements or Compliance Certificate is waived in writing by Agent and Lenders; provided,
however, that Agent and Lenders shall be entitled to accrue and receive interest at the
Default Rate to the extent authorized by Section 3.1.5; provided, further, that no
change shall be made in the levels set forth above solely due to any termination of the Commitments
and, in such event, the levels shall be determined as of the date of such termination and shall no
longer be subject to reduction or increase.
Approved Credit Enhancement in Agents discretion and at its option, either (i) an
irrevocable letter of credit that is in form and substance acceptable to Agent, issued or confirmed
by a bank acceptable to Agent, and payable in Dollars at a place of payment within the United
States that is acceptable to Agent, which letter of credit is assigned to Agent for the benefit of
Secured Parties (with such assignment acknowledged by the issuing or confirming bank) or, if so
requested by Agent, duly transferred to Agent for the benefit of Secured Parties (together with
sufficient documentation to permit direct draws under any such letter of credit by Agent for the
benefit of Secured Parties) or (ii) credit insurance that is issued by a credit insurance company
acceptable to Agent and is in form and substance acceptable to Agent (which credit insurance shall
be payable to Agent, for the benefit of Secured Parties, in Dollars, pursuant to an acceptable loss
payable endorsement).
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Approved Short-Term Investments short term investments made in conformity with the
investment policies attached as Schedule 10.2.11, provided that (i) such direct or indirect
obligations of the United States of America or of the listed European governments mature within one
year from the date of acquisition thereof and (ii) each other investment must mature not more than
one year from the date of creation thereof (or in the case of money market and other funds, have an
average maturity of not more than one year) and be capable of being liquidated and converted into
readily available cash within ten Business Days at any time without penalty in excess of the lesser
of $500,000 or 2% of the amount of such investment).
Arranger as defined in the preamble to this Agreement.
Asset Disposition a sale, lease, license, consignment or other transfer or
disposition of Property of an Obligor, including a disposition of Property in connection with a
sale-leaseback transaction or synthetic lease.
Assignment and Acceptance an assignment and acceptance entered into by a Lender and
an Eligible Assignee and accepted by Agent, in the form of Exhibit C.
Availability on any date with respect to Borrowers, an amount equal to on such date
(i) the lesser of (a) the Revolver Commitments and (b) the Borrowing Base, minus (ii) the
Aggregate Revolver Outstandings with respect to all Borrowers, minus (iii) without
duplication, Availability Reserves allocated by Agent to any Borrower.
Availability Reserve on any date of determination thereof, an amount equal to the
sum of the following (without duplication): (i) the Inventory Reserve; (ii) the Rent Reserve;
(iii) any amounts which any Obligor is obligated to pay to Agent, Lenders or other Persons pursuant
to the provisions of any of the Loan Documents that Agent or any Lender elects to pay for the
account of such Obligor in accordance with authority contained in any of the Loan Documents, except
to the extent Agent or such Lender has been reimbursed for such amount; (iv) the Bank Product
Reserve; (v) the aggregate amount of all liabilities and obligations that are secured by Liens upon
any of the Collateral that are senior in priority to Agents Liens if such Liens are not Permitted
Liens (provided that the imposition of a reserve hereunder on account of such Liens shall not be
deemed a waiver of the Event of Default that arises from the existence of such Liens); and (vi)
such additional reserves, in such amounts and with respect to such matters, as Agent in its Credit
Judgment may elect to impose from time to time, provided that Agent will notify Borrower
Representative promptly following the implementation of any such additional reserve.
Average Availability for any period, an amount equal to the sum of the amount of
Availability on each day during such period, as determined by Agent, divided by the number of days
in such period.
Average Revolver Loan Balance for any period, the amount obtained by adding the
unpaid balance of Revolver Loans plus one hundred percent (100%) of the aggregate undrawn
face amount of all outstanding Letters of Credit at the end of each day for the period in question
and by dividing such sum by the number of days in such period.
Bank Product Reserve the aggregate amount of reserves established by Agent from time
to time (a) at the direction of Secured Bank Product Providers for Noticed Hedges and (b) in its
Credit Judgment in respect of Secured Bank Product Obligations that are not Noticed Hedges. The
amount of the reserve in effect from time to time under clause (a) of this definition of Bank
Product Reserve shall be the sum of the net mark-to-market value (netting positive against
negative) of all Noticed Hedges of each Secured Bank Product Provider at such time as determined by
each such Secured Bank Product Provider.
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Bank Products any one or more of the following types of products, services or
facilities extended to any Bank Products Obligor by any Lender or any Affiliate of any Lender: (i)
commercial credit cards; (ii) merchant card services; (iii) products or services under Cash
Management Agreements; (iv) products under Hedging Agreements; (v) equipment leasing facilities;
(vi) bank guarantees and other indemnity agreements, trade letters of credit, documentary
collections and other similar services (excluding, however, Letters of Credit); (vii) lines of
credit and other financial accommodations to Foreign Subsidiaries; and (viii) such other banking
products or services provided by any Lender or any Affiliate of any Lender as may be requested by
any Bank Products Obligor, but only to the extent Borrowers (or Borrower Representative) shall
acknowledge in writing that such product or service is to constitute a Bank Product.
Bank Products Obligor any Obligor or any Affiliate of any Obligor.
Banking Relationship Debt Debt or other obligations of a Bank Products Obligor to
any Lender (or any Affiliate of any Lender) arising out of or relating to Bank Products.
Bankruptcy Code Title 11 of the United States Code.
Base Rate for any day, a per annum rate equal to the greatest of (a) the Prime Rate
for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Adjusted LIBOR Rate for a
30 day interest period as determined on such day, plus 1.00%.
Base Rate Loan a Loan, or portion thereof, during any period in which it bears
interest at a rate based upon the Base Rate.
Blocked Person (1) a Person that is listed in the annex to, or is otherwise subject
to the provisions of, Executive Order No. 13224; (2) a Person owned or controlled by, or acting for
or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224; (3) a Person or entity with which any bank or other
financial institution is prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law; (4) a Person or entity that commits, threatens or conspires to commit or
supports terrorism as defined in Executive Order No. 13224; (5) a Person or entity that is named
as a specially designated national on the most current list published by the U.S. Treasury
Department Office of Foreign Asset Control (OFAC) at its official website or any
replacement website or other replacement official publication of such list; (6) a Person or entity
who is affiliated with a Person or entity listed above; or (7) an agency of the government of, an
organization directly or indirectly controlled by, or a Person resident in, a country on any
official list maintained by OFAC.
Board of Governors the Board of Governors of the Federal Reserve System.
BofA Bank of America, N.A., a national banking association, and its successors and
permitted assigns.
BofA Indemnitees BofA and its Affiliates, and all of their respective present and
future officers, directors, employees, agents and attorneys.
Borrower and Borrowers as defined in the preamble to this Agreement.
Borrower Representative as defined in Section 4.4.
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Borrowing a borrowing consisting of Loans of one Type made on the same day by
Lenders (or by BofA in the case of a Borrowing funded by Swingline Loans) or a conversion of a Loan
or Loans of one Type from Lenders on the same day.
Borrowing Base on any date of determination thereof, an amount equal to (i) the sum
of (a) 85% of the Net Amount of Eligible Accounts of Borrowers on such date plus (b) the
Inventory Formula Amount minus (ii) the Availability Reserve. Notwithstanding anything in
this Agreement to the contrary, the amount of the Inventory Formula Amount comprising the Borrowing
Base shall not at any time exceed 65% of the total amount of the Borrowing Base.
Borrowing Base Certificate a certificate, in the form reasonably requested by Agent,
by which Borrowers shall certify to Agent and Lenders, with such frequency as required herein, the
calculation of the Borrowing Base, including a calculation of each component thereof, all in such
detail as shall be reasonably satisfactory to Agent.
Borrowing Base Certificate Trigger Period the period (a) commencing on the first day
of the month in which Average Availability for the immediately preceding month is less than an
amount equal to the greater of (i) the lesser of 20% of (A) the Borrowing Base or (B) the
Commitments, or (ii) $20,000,000, and (b) ending on the next day on which Average Availability is
greater than or equal to the amount described in the foregoing clause (a) on each day for a period
of 90 consecutive days.
Business Day any day excluding Saturday, Sunday and any other day that is a legal
holiday under the laws of the State of Georgia or North Carolina or is a day on which banking
institutions located in either such state are closed; provided, however, that when
used with reference to a LIBOR Loan (including the making, continuing, prepaying or repaying of any
LIBOR 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 Adequacy Regulation any guideline, request or directive of any central bank
or other Governmental Authority, or any other law, rule or regulation, whether or not having the
force of law, in each case regarding capital adequacy of any bank or of any corporation controlling
a bank.
Capital Expenditures expenditures made or liabilities incurred for the acquisition
of any Fixed Assets or improvements, replacements, substitutions or additions thereto which have a
useful life of more than one year, including the total principal portion of Capitalized Lease
Obligations; provided, however, that (a) the portion of the purchase price for any
Permitted Acquisition that is allocable to Fixed Assets purchased pursuant to such Permitted
Acquisition shall not constitute a Capital Expenditure, and (b) the amount of Capital
Expenditures by any Borrower (or, in the case of any Borrower that consists of more than one
division, by any division of such Borrower) during any fiscal period shall be reduced by the amount
of sales proceeds (net of taxes, commissions, fees and other transaction costs and expenses)
received by such Borrower (or division) during such period from its sale of Fixed Assets to the
extent permitted under this Agreement, but in no event shall such amount be less than zero.
Capitalized Lease Obligation any Debt represented by obligations under a lease that
is required to be capitalized for financial reporting purposes in accordance with GAAP.
Cash Collateral cash, and any interest or other income earned thereon, that is
deposited with Agent in accordance with this Agreement in order to Cash Collateralize any LC
Obligations or other Obligations.
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Cash Collateral Account a demand deposit, money market or other account established
by Agent at BofA or such other financial institution as Agent may select in its discretion, which
account shall be in Agents name and subject to Agents Liens.
Cash Collateralize with respect to LC Obligations arising from Letters of Credit
outstanding on any date or Obligations arising under Hedging Agreements on such date, the deposit
with Agent of either (i) immediately available funds into the Cash Collateral Account in an amount
equal to 105% of the sum of the aggregate Undrawn Amounts of such Letters of Credit and other
existing LC Obligations, all Obligations existing under such Hedging Agreements constituting
Secured Bank Product Obligations, and all related fees and other amounts due in connection with
such LC Obligations and Hedging Agreements constituting Secured Bank Product Obligations, as
applicable, or (ii) an irrevocable letter of credit in form and substance satisfactory to Agent,
issued by an issuer satisfactory to Agent in an amount equal to 105% of the sum of the aggregate
Undrawn Amounts of such Letters of Credit and other existing LC Obligations, all Obligations
existing under such Hedging Agreements constituting Secured Bank Product Obligations, and all
related fees and other amounts due in connection with such LC Obligations and Hedging Agreements,
as applicable.
Cash Dominion Cure Event means, following the commencement of a Cash Dominion
Period, (a) no Event of Default exists and (b) Availability is greater than or equal to the greater
of (i) the lesser of 17.5% of (A) the Borrowing Base or (B) the Commitments, or (ii) $17,500,000,
in each case, on each day for a period of ninety (90) consecutive days.
Cash Dominion Period the period commencing on the day that (a) an Event of Default
occurs, or (b) Availability is less than an amount equal to the greater of (i) the lesser of 17.5%
of (A) the Borrowing Base or (B) the Commitments, or (ii) $17,500,000, and ending on the date that
a Cash Dominion Cure Event occurs.
Cash Equivalents (i) marketable direct obligations issued or unconditionally
guaranteed by the United States government and backed by the full faith and credit of the United
States government having maturities of not more than 12 months from the date of acquisition; (ii)
domestic certificates of deposit and time deposits having maturities of not more than 12 months
from the date of acquisition, bankers acceptances having maturities of not more than 12 months
from the date of acquisition and overnight bank deposits, in each case issued by any commercial
bank organized under the laws of the United States, any state thereof or the District of Columbia,
which at the time of acquisition are rated A-1 (or better) by S&P or P-1 (or better) by Moodys,
and (unless issued by a Lender) not subject to offset rights in favor of such bank arising from any
banking relationship with such bank; (iii) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clauses (i) and (ii)
entered into with any financial institution meeting the qualifications specified in clause
(ii) above; (iv) commercial paper having at the time of investment therein or a contractual
commitment to invest therein a rating of A-1 (or better) by S&P or P-1 (or better) by Moodys, and
having a maturity within 9 months after the date of acquisition thereof; and (v) shares of any
money market fund that (a) has substantially all of its assets invested continuously in the types
of investments referred to in clauses (i) (iv), (b) has net assets not less than
$500,000,000 and (c) has the highest rating obtainable from either Moodys or S&P.
Cash Management Agreement any agreement entered into from time to time between any
Borrower or any other Bank Products Obligor, on the one hand, and any Lender or any of its
Affiliates, on the other, in connection with domestic or foreign cash management services for
operating, collections, payroll, trust or other depositary or disbursement accounts of such
Borrower or other Bank Products Obligor provided by such banking or financial institution,
including automatic clearinghouse services, controlled disbursement services, e-payable services,
electronic funds transfer services, information
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reporting services, lockbox services, stop payment services, cash-pooling and netting
services, daylight and other overdraft services, and wire transfer services.
CCC as defined in the preamble to this Agreement
CERCLA the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. § 9601 et seq.)
Change in Law the occurrence, after the date hereof, of (a) the adoption,
taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law,
rule, regulation or treaty or in the administration, interpretation or application thereof; or (c)
the making, issuance or application of any request, guideline, requirement or directive (whether or
not having the force of law) by any Governmental Authority; provided, however, that
notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith shall be deemed to be a Change in Law, regardless of the date enacted, adopted or
issued.
Change of Control the occurrence of any of the following: (i) less than a majority
of the members of Parents Board of Directors shall be persons who either (a) were serving as
directors on the Closing Date or (b) were nominated as directors and approved by the vote of the
majority of the directors who are either directors referred to in clause (a) above or
directors nominated and approved pursuant to this clause (b); or (ii) the stockholders of
Parent shall approve any plan or proposal for the liquidation or dissolution of Parent or the
stockholders of any Borrower shall approve any plan for the liquidation or dissolution of such
Borrower; or (iii) a Person or group of Persons acting in concert shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or otherwise, have become the
direct or indirect beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended from time to time) of Equity Interests of Parent representing more than
twenty five per cent (25%) of the combined voting power of the outstanding voting Equity Interests
or other ownership interests for the election of directors or shall have the right to elect a
majority of the Board of Directors of Parent; or (iv) any Borrower ceases to be a Wholly Owned
Subsidiary of Parent, except as otherwise permitted pursuant to this Agreement; or (v) a Change of
Control or similar event occurs under the terms of any document or agreement evidencing Debt of
Parent, any Borrower or any of their respective Subsidiaries (other than the Obligations) having an
outstanding principal balance of $7,500,000 or greater.
Chattel Paper shall have the meaning given to the term chattel paper in the UCC,
but shall exclude chattel paper related exclusively to Fixed Assets.
C.I.O.C. Trust the Back-Up Trust as defined and described in the Form 10-K for the
year ended December 31, 2010, filed by Parent, which discussion appears in various sections
including in the notes to the Consolidated Financial Statements attached thereto (Note 19,
Commitments and Contingencies under the heading Crucible Materials Corporation).
CIP as defined in the preamble to this Agreement.
CIP/GGB Pledge Agreement the Amended and Restated Pledge Agreement dated as of
January 1, 2010, executed by Coltec in favor of Garlock Sealing, pursuant to which Coltec grants
Garlock Sealing a Lien in the Membership Interests.
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CIP/GGB Purchase Agreement the Purchase and Sale Agreement, dated March 11, 2005,
between Coltec and Garlock Sealing, with respect to the sale by Garlock Sealing to Coltec of the
Membership Interests.
Claims all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, awards, and all reasonable out-of-pocket costs (including reasonable out-of-pocket remedial
response costs), charges, expenses and disbursements, of any kind or nature (including reasonable
out-of-pocket attorneys, accountants, consultants, or paralegals fees and expenses) which may
at any time (including at any time following Full Payment of the Obligations, termination of the
Commitments, resignation or replacement of Agent or replacement of any Lender) be imposed on,
incurred by, or asserted against any Indemnitee in any way relating to or arising out of (i) the
administration or enforcement of or performance under any of the Loan Documents or consummation of
any of the transactions described herein, (ii) any action taken or omitted to be taken by any
Indemnitee under or in connection with any of the Loan Documents, (iii) the existence, perfection
or realization upon Agents Liens upon any Collateral, (iv) the exercise by Agent or any Lender of
any of its rights or remedies under or in connection with any of the Loan Documents, or (v) the
failure of any Obligor to observe, perform or discharge any of such Obligors covenants or duties
under any of the Loan Documents or the inaccuracy or incompleteness of any representation or
warranty of any Borrower in any of the Loan Documents, in each case including any reasonable
out-of-pocket costs or expenses incurred by any Indemnitee in connection with any investigation,
litigation, arbitration or other judicial or non-judicial proceeding (including any Insolvency
Proceeding or appellate proceedings) whether or not such Indemnitee is a party thereto;
provided, however, that no party shall have any obligation under this Agreement to
indemnify an Indemnitee with respect to any Claim to the extent that it is determined in a final,
non-appealable judgment by a court of competent jurisdiction that such Claim resulted from the
gross negligence or willful misconduct of such Indemnitee.
Closing Date the date on which all of the conditions precedent in Section 11 are
satisfied or waived and the initial Loans are made under this Agreement.
Collateral all of the Property and interests in Property in which a security
interest or Lien is granted in Section 7 as security for the payment or performance of any of the
Obligations; and all Property in which a security interest or Lien is granted in any of the
Security Documents as security for the payment or performance of any of the Obligations.
Coltec as defined in the preamble to this Agreement.
Coltec/Stemco Subordinated Guaranty the Amended and Restated Guaranty Agreement
dated as of January 1, 2010, pursuant to which Coltec guaranties the obligations under the Stemco
Subordinated Note.
Coltec Subordinated Note the amended and restated subordinated promissory note
dated as of January 1, 2010, made by Coltec and payable to the order of Garlock Sealing in the
original principal amount of $73,381,000.
Commercial Tort Claim shall have the meaning given to the term commercial tort
claim in the UCC.
Commitment at any date for any Lender, the amount of such Lenders Revolver
Commitment on such date, and Commitments means the aggregate amount of all Revolver
Commitments on such date.
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Commitment Termination Date the date that is the soonest to occur of (i) the last
day of the Term; (ii) the date that is ninety (90) days prior to the maturity date with respect to
the Convertible Debentures under the Convertible Debentures Indenture, unless, on or before such
date, Borrowers pay in full, refinance, defease or extend the maturity of the Convertible
Debentures to a date that is not less than one (1) year after March 30, 2016, with any such
refinance or extension to be made on an unsecured basis and otherwise permissible under this
Agreement and the other Loan Documents; (iii) the date on which either Borrowers or Agent
terminates the Revolver Commitments pursuant to Section 6.2; or (iv) the date on which the Revolver
Commitments are automatically terminated pursuant to Section 12.2.
Compliance Certificate a Compliance Certificate to be provided by Parent to Agent in
accordance with, and in the form annexed as Exhibit A to, this Agreement and the supporting
schedules to be annexed thereto.
Consolidated the consolidation in accordance with GAAP of the accounts or other
items as to which such term applies.
Consolidated Total Assets as of any date of determination, the Consolidated Total
Assets of Parent and its consolidated Subsidiaries, as determined on a Consolidated basis in
accordance with GAAP.
Contingent Obligation with respect to any Person, any obligation of such Person
arising from any guaranty, indemnity or other assurance of payment or performance of any Debt,
lease, dividend or other obligation (primary obligations) of any other Person (the primary
obligor) in any manner, whether directly or indirectly, including (i) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the Ordinary Course of Business),
co-making, discounting with recourse or sale with recourse by such Person of the obligation of a
primary obligor, (ii) the obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an agreement, and (iii) any
obligation of such Person, whether or not contingent, (A) to purchase any such primary obligation
or any Property constituting direct or indirect security therefor, (B) to advance or supply funds
(1) for the purchase or payment of any such primary obligations or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (C) to purchase Property or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation or (D) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary obligation with
respect to which such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the amount of the
liability for such Contingent Obligation required to be recorded in accordance with GAAP.
Contributing Borrower as defined in Section 5.10.4.
Controlled Disbursement Account a demand deposit account maintained by Borrowers at
BofA (or an Affiliate of BofA) and to which proceeds of Loans may be wired from time to time.
Convertible Debentures the Convertible Senior Debentures Due 2015, bearing interest
at a per annum rate of 3.9375%, issued by Parent in the original principal amount of up to
$172,500,000 in accordance with the terms of the Convertible Debentures Indenture.
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Convertible Debenture Distribution a Distribution by Borrowers and their
Subsidiaries to Parent in the amount of, and concurrently with, (a) any regularly scheduled
interest payments due under the Convertible Debentures, and (b) any principal payment due under the
Convertible Debentures, any cash payment due upon any conversion of the Convertible Debentures or
any prepayment of the Convertible Debentures permitted pursuant to Section 10.2.6.
Convertible Debentures Indenture the Indenture, dated as of October 26, 2005,
executed by Parent in favor of Wachovia Bank, National Association, as trustee, in connection with
the issuance of the Convertible Debentures.
Copyright Security Agreement the Second Amended and Restated Copyright Security
Agreement dated on or about the date of this Agreement, by Borrowers in favor of Agent and by which
Borrowers shall grant or re-grant, as the case may be, to Agent, for the benefit of Secured
Parties, as security for the Obligations, a security interest in all of Borrowers right, title and
interest in and to the copyrights described therein.
Credit Judgment Agents reasonable judgment exercised in a manner consistent with
its customary practices or otherwise in good faith, based upon its consideration of any factor that
it believes (i) will or would reasonably be expected to affect adversely the quantity, quality, mix
or value of any Collateral, the enforceability or priority of Agents Liens thereon or the amount
that Agent and Lenders would be likely to receive (after taking into account delays in the payment
and estimated costs of enforcement) in the collection of the Accounts or liquidation of any of the
Collateral; (ii) causes any collateral report or financial information delivered to Agent by any
Person on behalf of any Obligor to be incomplete, inaccurate or misleading in any material respect;
(iii) materially increases the likelihood of any Insolvency Proceeding involving any Obligor; or
(iv) creates or reasonably would be expected to create or result in a Default or Event of Default.
In exercising such judgment, Agent may consider such factors already included in or tested by the
definitions of Eligible Accounts or Eligible Inventory, as well as any of the following: (a) the
financial and business climate of Borrowers industry, to the extent such climate would reasonably
be expected to have an effect on Borrowers; (b) changes in collection history and dilution with
respect to the Accounts; (c) changes in demand for, and pricing of, any Inventory; (d) material
changes in any concentration risks with respect to Accounts or Inventory; and (e) any of the
factors that would reasonably be expected to materially increase the credit risk of lending to any
of Borrowers on the security of the Collateral.
CWA the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Debt as applied to a Person means, without duplication, all liabilities, obligations
and indebtedness of such Person to any other Person, of any kind or nature, now or hereafter owing,
arising, due or payable, howsoever evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed or otherwise, consisting of indebtedness for Money
Borrowed or the deferred purchase price of property, excluding trade payables, but including (i)
Capitalized Lease Obligations and all obligations or liabilities created or arising under any
conditional sale or other title retention agreement with respect to property used or acquired by
such Person, even if the rights and remedies of the lessor, seller or lender thereunder are limited
to repossession of such property; provided, however, that all such obligations and
liabilities which are limited in recourse to such property shall be included in Debt only to the
extent of the book value of such property as would be shown on a balance sheet of the applicable
Person prepared in accordance with GAAP; (ii) all obligations and liabilities of any Person secured
by any Lien on such Persons Property, even though such Person shall not have assumed or become
liable for the payment thereof; provided, however, that all such obligations and
liabilities which are limited in recourse to such Property shall be included in Debt only to the
extent of the book value of such Property as would be shown on a balance sheet of such Person
prepared in accordance with GAAP; (iii) all
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Contingent Obligations of such Person; (iv) all reimbursement obligations in connection with
letters of credit or letter of credit guaranties issued for the account of such Person; and (v) in
the case of an Obligor (without duplication), the Obligations. The Debt of a Person shall include
any recourse Debt of any partnership or joint venture in which such Person is a general partner or
joint venturer.
Default an event or condition the occurrence of which would, with the lapse of time
or the giving of notice, or both, become an Event of Default.
Default Rate on any date, a rate per annum that is equal to (i) in the case of each
Revolver Loan outstanding on such date, 2% in excess of the rate otherwise applicable to such Loans
on such date, and (ii) in the case of any of the other Obligations outstanding on such date, 2% in
excess of the Base Rate in effect on such date plus the Applicable Margin otherwise
applicable to Base Rate Loans on such date.
Defaulting Lender any Lender that, as determined by Agent in its reasonable
discretion, (a) has failed to fund any portion of the Revolver Loans, participations in LC
Obligations or participations in Swingline Loans, and such failure is not cured within three
Business Days; (b) has failed to perform any other funding obligations hereunder, and such failure
is not cured within three Business Days and is not the subject of a good faith dispute; (c) has
notified Agent or any Borrower that such Lender does not intend to comply with its funding
obligations hereunder or has made a public statement to the effect that it does not intend to
comply with its funding obligations hereunder or under any other credit facility; (d) has failed,
within three Business Days following request by Agent, to confirm in a manner satisfactory to Agent
that such Lender will comply with its funding obligations hereunder and, in the case of funding
obligations that are the subject of clause (b) above, such failure is not the subject of a good
faith dispute; or (e) has, or has a direct or indirect parent company that has, become the subject
of an Insolvency Proceeding or taken any action in furtherance thereof; provided,
however, that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental
Authoritys ownership of an equity interest in such Lender or parent company.
Deposit Account shall have the meaning given to the term deposit account in the
UCC.
Deposit Accounts Collateral means all Deposit Accounts (and any associated
lockboxes) maintained by any Obligor, including any Deposit Account maintained by any Obligor for
the deposit of proceeds of Collateral pursuant to the Loan Documents or for disbursing the proceeds
of Loans made by Lenders pursuant to the Loan Documents and all amounts from time to time deposited
in such Deposit Accounts. For the avoidance of doubt, all Dominion Accounts shall constitute
Deposit Accounts Collateral.
Distribution in respect of any entity, (i) any payment of any dividends or other
distributions on Equity Interests of the entity (except distributions in such Equity Interests) and
(ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests
of the entity unless made contemporaneously from the net proceeds of the sale of Equity Interests.
Document shall have the meaning given to the term document in the UCC, but shall
exclude documents related exclusively to Fixed Assets.
Dollars and the sign $ lawful money of the United States of America.
Domestic Subsidiary a Subsidiary of Parent that is incorporated under the laws of a
state of the United States or the District of Columbia.
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Dominion Account a special account of a Borrower or Agent established by such
Borrower at BofA or another bank selected by Borrowers, but reasonably acceptable to Agent, and
over which Agent shall have exclusive access and control for withdrawal purposes.
Dormant Subsidiary each of the following direct or indirect Subsidiaries of Coltec:
HTCI, a Michigan corporation, and QFM Sales and Services, Inc., a Delaware corporation.
EBITDA -with respect to any fiscal period of Obligors, Adjusted Net Earnings,
plus, to the extent deducted in the determination of Adjusted Net Earnings for that fiscal
period, interest expenses (including PIK Interest), federal, state, local and foreign income taxes,
and depreciation and amortization.
EIFA that certain Excess Insurance Funding Agreement dated on or about June 16, 1995
by and among Coltec and various insurance companies party thereto, as amended, supplemented or
modified from time to time.
Electronic Chattel Paper shall have the meaning given to the term electronic
chattel paper in the UCC.
Eligible Account an Account that arises in the Ordinary Course of Business of a
Borrower from the sale of Inventory or rendition of services, is payable in Dollars, is subject to
Agents duly perfected Lien, and is deemed by Agent, in its Credit Judgment, to be an Eligible
Account. Without limiting the generality of the foregoing, no Account shall be an Eligible Account
if (i) it arises out of a sale made by a Borrower to an Affiliate of a Borrower, a Person
controlled by an Affiliate of a Borrower or a Blocked Person; (ii) it is unpaid for more than 60
days after the original due date shown on the invoice; (iii) it is due or unpaid more than 90 days
after the original invoice date; (iv) 50% or more of the Accounts from the Account Debtor are not
deemed Eligible Accounts under clauses (ii) or (iii) above; (v) the total unpaid
Accounts of the Account Debtor exceed 20% of the aggregate amount of all Accounts, to the extent of
such excess; (vi) any covenant, representation or warranty contained in this Agreement with respect
to such Account has been breached; (vii) the Account Debtor is also such Borrowers creditor or
supplier, or has disputed liability with respect to such Account or has made any claim with respect
to any other Account due from such Account Debtor to such Borrower, or the Account otherwise is
subject to any right of setoff (unless waived pursuant to an agreement acceptable to Agent),
counterclaim, recoupment, reserve, defense or chargeback, provided that the Accounts of such
Account Debtor shall be ineligible only to the extent of the amount owing to such creditor or
supplier or the amount of such dispute or right of offset, counterclaim, recoupment, reserve,
defense or chargeback; (viii) an Insolvency Proceeding has been commenced by or against the Account
Debtor, unless otherwise approved by Agent, or the Account Debtor has failed, suspended or ceased
doing business; (ix) to Borrowers knowledge, the Account Debtor is not Solvent; (x) the invoice
relating thereto is sent to a location outside the United States or Canada or, to Borrowers
knowledge, such Account arises from a sale to an Account Debtor that is organized under the laws of
any jurisdiction outside of the United States or Canada or that has its principal office, assets or
place of business outside of the United States or Canada, except, in any such case, to the extent
that the sale is supported or secured by an Approved Credit Enhancement; (xi) it arises from a sale
to the Account Debtor on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval,
consignment or any other repurchase or return basis; (xii) the Account Debtor is the United States
or any department, agency or instrumentality thereof, unless the applicable Borrower is not
prohibited from assigning the Account and does assign its right to payment of such Account to
Agent, in a manner satisfactory to Agent, so as to comply with the Assignment of Claims Act of 1940
(31 U.S.C. §3727 and 41 U.S.C. §15), or is a state, county or municipality, or a political
subdivision or agency thereof and Applicable Law disallows or restricts an assignment of Accounts
on which it is the Account Debtor; provided, that, unless Agent otherwise notifies Borrowers,
Accounts not satisfying this clause (xii) in the aggregate amount not exceeding $1,000,000
shall be Eligible Accounts if all other requirements of this definition of Eligible
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Account are met; (xiii) the Account Debtor is located in any jurisdiction which requires the
filing of a Notice of Business Activities Report or similar report in order to permit the
applicable Borrower to seek judicial enforcement in such jurisdiction of payment of such Account
unless the applicable Borrower has either qualified to transact business in such jurisdiction or
filed a Notice of Business Activities Report or other required report with the appropriate
officials in those jurisdictions for the then current year; (xiv) the Account Debtor is located in
a jurisdiction in which such Borrower is deemed to be doing business under the laws of such
jurisdiction and which denies creditors access to its courts in the absence of qualification to
transact business in such jurisdiction or of the filing of any reports with such jurisdiction,
unless such Borrower has qualified to transact business in such jurisdiction or has filed all
required reports; (xv) the Account is subject to a Lien other than a Permitted Lien; (xvi) the
goods giving rise to such Account have not been delivered to and accepted by the Account Debtor,
the services giving rise to such Account have not been performed by such Borrower and accepted by
the Account Debtor, or the Account otherwise does not represent a final sale; (xvii) the Account is
evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (xviii)
the Account represents a progress billing or a retainage or arises from a sale on a
cash-on-delivery basis; (xix) such Borrower has made any agreement with the Account Debtor for any
deduction therefrom, except for discounts or allowances for prompt payment or otherwise made in the
Ordinary Course of Business and which discounts or allowances (other than discounts for prompt
payment in the Ordinary Course of Business) are reflected in the calculation of the face value of
each invoice related to such Account; (xx) such Borrower has made an agreement with the Account
Debtor to extend the time of payment thereof; (xxi) the Account represents, in whole or in part, a
billing for interest, fees or late charges, provided that such Account shall be ineligible only to
the extent of the amount of such billing; (xxii) it arises from the sale of Inventory that is not
Eligible Inventory pursuant to clause (ii) of the definition of Eligible Inventory; or
(xxiii) it arises from a retail sale of Inventory to a Person who is purchasing the same primarily
for personal, family or household purposes.
Eligible Assignee a Person that is a Lender, a U.S. based Affiliate of a Lender or
an Approved Fund (as defined below); a commercial bank, finance company, or other financial
institution, in each case that is organized under the laws of the United States or any state, has
total assets in excess of $5 billion, extends asset-based lending facilities of the type
contemplated herein in the Ordinary Course of Business and whose becoming an assignee would not
constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law, is
acceptable to Agent and, unless a Default or an Event of Default exists, Borrowers (such approval
by Borrowers, when required, not to be unreasonably withheld or delayed); and, at any time that an
Event of Default exists, any other Person acceptable to Agent in its discretion. The term
Approved Fund means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the Ordinary
Course of Business of such Person and that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a
Lender.
Eligible Inventory Inventory which is owned by a Borrower (other than packaging or
shipping materials, labels, samples, display items, bags, and replacement parts and manufacturing
supplies used in a Borrowers business) and which Agent, in its Credit Judgment, deems to be
Eligible Inventory. Without limiting the generality of the foregoing, no Inventory shall be
Eligible Inventory unless: (i) it is raw materials, finished goods or, if the Value of Eligible
Inventory is being determined pursuant to an Orderly Liquidation Value Appraisal, work-in-process;
(ii) it is owned by a Borrower and it is not held by such Borrower on consignment from or subject
to any guaranteed sale, sale-or-return, sale-on-approval or repurchase agreement with any supplier;
(iii) it is in good and saleable condition and is not damaged, defective, shopworn or otherwise
unfit for sale; (iv) it is not slow-moving, obsolete or unmerchantable and is not goods returned to
such Borrower by or repossessed from an Account Debtor; (v) it meets all standards imposed by any
Governmental Authority and does not constitute hazardous materials under any Environmental Law to
the extent such goods can be transported or sold only with licenses or permits that are not readily
available; (vi) it conforms in all respects to the warranties and representations set forth in
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this Agreement and is fully insured in the manner required by this Agreement; (vii) it is at
all times subject to Agents duly perfected, first priority security interest and no other Lien
except, in each case, a Permitted Lien; (viii) if it is located in a public warehouse or in
possession of a bailee or in a facility leased by a Borrower, the applicable warehouseman, bailee
or lessor has delivered to Agent a Lien Waiver or, if required by Agent, a Rent Reserve has been
established for such location; (ix) it is not in transit or outside the continental United States
and is not consigned or leased to any Person; (x) it is not the subject of a negotiable warehouse
receipt or other negotiable Document; (xi) it has not been sold or leased and such Borrower has not
received any deposit or down payment in respect thereof in anticipation of a sale; (xii) it does
not contain or bear any Intellectual Property licensed to a Borrower by any Person, unless Agent is
satisfied that it may sell or otherwise dispose of such Inventory in accordance with the terms of
Section 12 without infringing the rights of such Person or violating any contract with such Person
(and without payment of any royalties other than any royalties due with respect to the sale or
disposition of such Inventory pursuant to the existing license agreement) and, if requested by
Agent, as to which such Borrower has delivered to Agent a consent or sublicense agreement from such
licensor in form and substance acceptable to Agent; and (xiii) it is not the subject of an
Intellectual Property Claim.
Enforcement Action action taken or to be taken by Agent, during any period that an
Event of Default exists, to enforce collection of the Obligations or to realize upon the Collateral
(whether by judicial action, under power of sale, by self-help repossession, by notification to
Account Debtors, or by exercise of rights of setoff or recoupment).
Environmental Laws all federal, state, local and foreign laws, rules, regulations,
codes, ordinances, orders and consent decrees (together with all permits and guidance documents
promulgated by regulatory agencies, to the extent having the force of law), now or hereafter in
effect, that relate to public health (but excluding occupational safety and health, to the extent
regulated by OSHA) or the protection or pollution of the environment, whether now or hereafter in
effect, including CERCLA, RCRA and CWA.
Environmental Release a release as defined in CERCLA or under any other applicable
Environmental Laws.
Equipment shall have the meaning given to the term equipment in the UCC and shall
include, without limitation, with respect to any Person, all of such Persons now owned or
hereafter acquired machinery, equipment, furniture, furnishings, fixtures, and other tangible
personal property (except Inventory, books and records and other tangible personal property
included as Collateral pursuant to Section 7.1 of this Agreement), including embedded software,
motor vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools,
jigs, molds and office equipment, as well as all of such types of property leased by such Person
and all of such Persons rights and interests with respect thereto under such leases (including,
without limitation, options to purchase); together with all present and future additions and
accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be
used in connection therewith, and all substitutes for any of the foregoing, and all manuals,
drawings, instructions, warranties and rights with respect thereto; wherever any of the foregoing
is located.
Equity Interest (i) with respect to any Person that is a corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common
or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation,
any and all partnership, membership, limited liability company or other equity interests of such
Person; and in each case, any and all warrants, rights or options to purchase any of the foregoing.
ERISA the Employee Retirement Income Security Act of 1974.
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Eurocurrency Liabilities as defined in the definition of Reserve Percentage.
Event of Default as defined in Section 12.
Excess as defined in Section 3.11.
Excluded Deposit Account as defined in Section 8.2.6.
Excluded Taxes with respect to Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States, or
by the jurisdiction under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which its principal office is located or, in the case of any Lender, in which its
applicable lending office 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
Lenders failure to comply with Section 5.9, except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to
Section 5.8.
Executive Order No. 13224 Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001.
Existing Lender as defined in the preamble to this Agreement.
Existing Letters of Credit as defined in Section 2.3.5.
Existing Loan Agreement as defined in the preamble to this Agreement.
Existing Loan Document as defined in Section 15.18.
Extended Term Letter of Credit a standby Letter of Credit which has an expiration
date that is (x) after the first anniversary of the issuance of such Letter of Credit and (y) on or
before the third anniversary of the issuance of such Letter of Credit (which expiration date may
extend beyond the last Business Day of the Term) and to which the following conditions and/or
requirements apply: (i) the aggregate face amount of all such Letters of Credit which are
outstanding at any one time shall not exceed $500,000 and (ii), if any such Letter of Credit
remains outstanding on or after the Commitment Termination or on the last Business Day of the Term,
then Borrowers shall be required to Cash Collateralize such Letter of Credit in accordance with the
provisions of Section 2.3.3.
Extraordinary Expenses all costs, expenses, fees (including reasonable out-of-pocket
fees incurred to Agent Professionals) or advances that Agent or any Lender may suffer or incur
during any period that a Default or Event of Default exists, or during the pendency of an
Insolvency Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection,
repossession, storage, repair, appraisal, insuring, completion of the manufacture of, preparing for
sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any
Collateral; (ii) any action, suit, litigation, arbitration, contest or other judicial or
non-judicial proceeding (whether instituted by or against Agent, any Lender, any Obligor, any
representative of creditors of any Obligor or any other Person) in any way arising out of or
relating to any of the Collateral (or the validity, perfection, priority or avoidability of
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Agents Liens with respect to any of the Collateral), any of the Loan Documents or the
validity, allowance or amount of any of the Obligations, including any lender liability or other
Claims asserted against Agent or any Lender; (iii) the exercise, protection or enforcement of any
rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (iv) the
settlement or satisfaction of any Liens upon any Collateral (whether or not such Liens are
Permitted Liens); (v) the collection or enforcement of any of the Obligations, whether by
Enforcement Action or otherwise; (vi) the negotiation, documentation, and closing of any amendment,
waiver, restructuring or forbearance agreement with respect to the Loan Documents or Obligations;
(vi) amounts advanced by Agent pursuant to Sections 8.1.3 or 15.10; or (vii) the enforcement of any
of the provisions of any of the Loan Documents. Such costs, expenses and advances may include
transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and
standby fees, legal fees, appraisal fees, brokers fees and commissions, auctioneers fees and
commissions, accountants fees, environmental study fees, wages and salaries paid to employees of
any Obligor or independent contractors in liquidating any Collateral, travel expenses, all other
fees and expenses payable or reimbursable by Borrowers or any other Obligor under any of the Loan
Documents, and all other fees and expenses associated with the enforcement of rights or remedies
under any of the Loan Documents, but excluding overhead of Agent or any Lender or compensation paid
to employees (including inside legal counsel who are employees) of Agent or any Lender.
Federal Funds Rate (a) the weighted average of interest rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers on
the applicable Business Day (or on the preceding Business Day, if the applicable day is not a
Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or
(b) if no such rate is published on the next Business Day, the average rate (rounded up, if
necessary, to the nearest 1/16 of 1%) charged to BofA on the applicable day on such transactions,
as determined by Agent.
Fee Letter the fee letter agreement between Agent and Coltec on behalf of each
Borrower.
FEIN with respect to any Person, the Federal Employer Identification Number of such
Person.
Fiscal Quarter a period of 3 consecutive months that end on the last day of March,
June, September or December.
Fiscal Year the fiscal year of Parent and its Subsidiaries for accounting and tax
purposes, which ends on December 31 of each year.
Fixed Assets with respect to Parent and its Subsidiaries, all Real Property and
Equipment of Parent and its Subsidiaries.
Fixed Asset Lien a Lien upon Fixed Assets which secures Debt, but only if such Lien
shall at all times be confined solely to Fixed Assets (and Chattel Paper, Documents and General
Intangibles solely related thereto and proceeds, including insurance proceeds, thereof) and, in the
case of any such Lien on Real Property, Borrowers shall have delivered to Agent a duly executed
mortgagee waiver and access agreement from the applicable mortgagee, in form and substance
reasonably acceptable to Agent, whereby such mortgagee acknowledges that it does not have a Lien on
any of the Collateral and agrees to allow Agent access to the mortgaged Real Property.
Fixed Charge Coverage Ratio as of any date of determination, the ratio of (i)
EBITDA to (ii) Fixed Charges, in each case as determined for Parent and its consolidated
Subsidiaries on a Consolidated basis for the twelve fiscal month period ending on such date of
determination.
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Fixed Charges with respect to any fiscal period of Parent and its consolidated
Subsidiaries on a Consolidated basis, without duplication, (i) interest expense, plus (ii)
Capital Expenditures (excluding Capital Expenditures funded with Debt other than Revolver Loans,
but including, without duplication, principal payments with respect to such Debt), plus
(iii) scheduled principal payments of Debt, plus (iv) federal, state, local and foreign
income taxes (excluding deferred taxes), plus (v) all Distributions made by Parent during
such fiscal period. Notwithstanding anything herein to the contrary, in no event shall any PIK
Interest be included in the calculation of Fixed Charges under this Agreement; provided,
however, that, in all events, any payments made in cash under the Coltec Subordinated Note
or the Stemco Subordinated Note, including pursuant to Section 1 of the Coltec Subordinated Note or
Section 1 of the Stemco Subordinated Note, shall constitute Fixed Charges under this Agreement.
FLSA the Fair Labor Standards Act of 1938.
Foreign Lender any Lender that is organized under the laws of a jurisdiction other
than the laws of the United States, any state thereof or the District of Columbia.
Foreign Subsidiary a Subsidiary that is not a Domestic Subsidiary.
Fronting Exposure a Defaulting Lenders Pro Rata share of LC Obligations or
Swingline Loans, as applicable, except to the extent allocated to other Lenders under Section 4.2.
Full Payment with respect to any of the Obligations, the full and final payment in
full, in cash and in Dollars (or, if requested by Agent or the Issuing Bank with respect to any
reimbursement obligations owing with respect to any Letter of Credit issued in a foreign currency,
in such foreign currency), of such Obligations, including all interest, fees and other charges
payable in connection therewith under any of the Loan Documents, whether such interest, fees or
other charges accrue or are incurred prior to or during the pendency of an Insolvency Proceeding
and whether or not any of the same are allowed or recoverable in any Bankruptcy Case pursuant to
Section 506 of the Bankruptcy Code or otherwise; with respect to any LC Obligations represented by
undrawn Letters of Credit and Banking Relationship Debt (including Debt arising under Hedging
Agreements), the depositing of cash with Agent, as security for the payment of such Obligations,
not to exceed 105% of the aggregate undrawn amount of such Letters of Credit and 105% of Agents
good faith estimate of the amount of Banking Relationship Debt due and to become due after
termination of such Bank Products. None of the Loans shall be deemed to have been paid in full
until all Commitments related to such Loans have expired or been terminated.
Funded Debt with respect to Obligors and their Subsidiaries, (i) Debt of Obligors
and their Subsidiaries consisting of or relating to (a) the borrowing of money or the obtaining of
credit (other than trade payables incurred in the Ordinary Course of Business), including the
Obligations and the Convertible Debentures, (b) the deferred purchase price of assets (other than
trade payables incurred in the Ordinary Course of Business), or (c) Capitalized Lease Obligations,
and (ii) Debt of the type referred to in clause (i) of another Person guaranteed by an
Obligor or Subsidiary.
GAAP generally accepted accounting principles in the United States in effect from
time to time.
Garlock Sealing Garlock Sealing Technologies, LLC, a North Carolina limited
liability company.
Garlock Sealing Subordination Agreement the Amended and Restated Subordination
Agreement, between Garlock Sealing and Agent, subordinating the Debt evidenced by the Coltec
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Subordinated Note to the Obligations and the Lien granted to Garlock Sealing pursuant to the
CIP/GGB Pledge Agreement to Agents Liens.
Garrison Garrison Litigation Management Group, Ltd., a North Carolina corporation.
General Intangible shall have the meaning given to the term general intangible in
the UCC, but shall exclude general intangibles related exclusively to Fixed Assets. The term
general intangibles shall include, except to the extent related exclusively to Fixed Assets, each
Obligors choses in action, causes of action, company or other business records, inventions,
blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names,
trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses,
franchises, customer lists, permits, tax refund claims, computer software, operational manuals,
internet addresses and domain names, insurance refunds and premium rebates, all rights to
indemnification and all other intangible property of such Obligor of every kind and nature (other
than Accounts).
GGB Inc. as defined in the preamble to this Agreement.
GGB LLC as defined in the preamble to this Agreement.
Goods shall have the meaning given to the term goods in the UCC.
Governmental Approvals all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
Governmental Authority any federal, state, municipal, national, foreign or other
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the District of Columbia or a foreign
entity or government.
Guarantors Parent, each Subsidiary Guarantor, and each other Person who guarantees
payment or performance of the whole or any part of the Obligations.
Guaranty each guaranty agreement now or hereafter executed by a Guarantor in favor
of Agent with respect to any of the Obligations.
Hedging Agreement any interest rate protection agreement, foreign currency exchange
agreement, forward contract, currency swap agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
Impermissible Qualification any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of Borrowers which
(i) is of a going concern or similar nature, (ii) relates to the limited scope of examination of
matters relevant to such financial statements, or (iii) relates to the treatment or classification
of any item in such financial statement that, if removed, would require an adjustment to such item
the effect of which would be to cause a violation of Section 10.3.
Increase Effective Date as defined in Section 2.2.2.
Indemnified Taxes Taxes other than Excluded Taxes.
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Indemnitees the Agent Indemnitees, the Lender Indemnitees, Issuing Bank
Indemnitees and the BofA Indemnitees.
Initial Lenders BofA, SunTrust Bank, Wells Fargo Bank, National Association, each in
its capacity as a Lender under this Agreement on the Closing Date.
Insolvency Proceeding any action, case or proceeding commenced by or against a
Person under any state, federal or foreign law, or any agreement of such Person, for (i) the entry
of an order for relief under any chapter of the Bankruptcy Code or other insolvency or debt
adjustment law (whether state, federal or foreign), (ii) the appointment of a receiver (or
administrative receiver), trustee, liquidator, administrator, conservator or other custodian for
such Person or any part of its Property, (iii) an assignment or trust mortgage for the benefit of
creditors of such Person, or (iv) the liquidation, dissolution or winding up of the affairs of such
Person.
Instrument shall have the meaning given to the term instrument in the UCC.
Intellectual Property all intellectual and similar Property of a Person of every
kind and description, including inventions, designs, patents, patent applications, copyrights,
trademarks, service marks, trade names, mask works, trade secrets, confidential or proprietary
information, know-how, software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, all books and records describing or used in connection
with the foregoing and all licenses, or other rights to use any of the foregoing.
Intellectual Property Claim the assertion by any Person of a claim (whether asserted
in writing, by action, suit or proceeding or otherwise) that any Borrowers ownership, use,
marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other
Property is violative of any ownership or right to use any Intellectual Property of such Person.
Intercompany Loan means a Debt owed at any time by an Obligor to another Obligor,
whether resulting from an extension of credit or otherwise, whether secured or unsecured, and
irrespective of the currency in which such debt is owed.
Intercompany Services Agreements the collective reference to the Intercompany
Services Agreement dated as of June 1, 2010, among Parent, Coltec and Garlock Sealing, and the
Intercompany Services Agreement dated as of June 1, 2010, among Parent, Coltec and Garrison.
Intercompany Subordination Agreement the Second Amended and Restated Subordination
Agreement dated on or about the date of this Agreement, by and among Agent, Parent, Borrowers and
certain of their respective Subsidiaries subordinating certain intercompany Debt and other
liabilities to the Obligations and such Persons obligations under the Loan Documents.
Interest as defined in Section 3.11.
Interest Period as defined in Section 3.1.3.
Inventory shall have the meaning given to the term inventory in the UCC and shall
include all goods intended for sale or lease by an Obligor, or for display or demonstration; all
work in process, all raw materials and other materials and supplies of every nature and description
used or which might be used in connection with the manufacture, printing, packing, shipping,
advertising, selling, leasing or furnishing of such goods or otherwise used or consumed in an
Obligors business (but excluding Equipment).
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Inventory Formula Amount on any date of determination (i) prior to the delivery to
Agent of the first Orderly Liquidation Value Appraisal and Agents approval thereof, an amount
equal to 50% of the Value of Eligible Inventory of Borrowers on such date, and (ii) on or after the
delivery to Agent of the first Orderly Liquidation Value Appraisal and Agents approval thereof, an
amount equal to the lesser of (a) 65% of the Value of Eligible Inventory of Borrowers on such date
or (b) 85% of the product obtained by multiplying the Value of Eligible Inventory of Borrowers on
such date by the Net Orderly Liquidation Value Percentage.
Inventory Reserve such reserves as may be established from time to time by Agent in
its Credit Judgment to reflect changes in the salability of any Eligible Inventory in the Ordinary
Course of Business or such other factors as may negatively impact the Value of any Eligible
Inventory. Without limiting the generality of the foregoing, such reserves may include reserves
based on obsolescence, seasonality, theft or other shrinkage, imbalance, change in composition or
mix, markdowns, and vendor chargebacks.
Investment Property shall have the meaning given to the term investment property
in the UCC and shall include all securities (whether certificated or uncertificated), security
entitlements, securities accounts, commodity contracts and commodity accounts.
Issuing Bank BofA or an Affiliate of BofA.
Issuing Bank Indemnitees Issuing Bank and its Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
LC Application an application by any or all Borrowers to Issuing Bank (which may be
joined in by any other Obligor or any Subsidiary of a Borrower), pursuant to a form approved by
Issuing Bank, for the issuance of a Letter of Credit, that is submitted to Issuing Bank at least 3
Business Days prior to the requested issuance of such Letter of Credit.
LC Conditions the following conditions, the satisfaction of each of which is
required before Issuing Bank shall be obligated to issue a Letter of Credit: (i) each of the
conditions set forth in Section 11 has been and continues to be satisfied, including the absence of
any Default or Event of Default; (ii) after giving effect to the issuance of the requested Letter
of Credit and all other unissued Letters of Credit for which an LC Application has been signed by a
Borrower and approved by Agent and Issuing Bank, the LC Obligations would not exceed $30,000,000
and no Out-of-Formula Condition would exist, and, if no Revolver Loans are outstanding, the LC
Obligations do not, and would not upon the issuance of the requested Letter of Credit, exceed
Availability; (iii) such Letter of Credit (A) satisfies each of the LC Expiry Date Conditions or
(B) otherwise constitutes an Extended Term Letter of Credit; (iv) the currency in which payment is
to be made under the Letter of Credit is Dollars or, with Issuing Banks consent, another currency
in which Issuing Bank issues letters of credit; and (v) the form of the proposed Letter of Credit
is reasonably satisfactory to Agent and Issuing Bank, provides for sight drafts only and does not
contain any language that automatically increases the amount available to be drawn under the Letter
of Credit.
LC Documents any and all agreements, instruments and documents (including an LC
Application) required by Issuing Bank to be executed by Borrowers or any other Person and delivered
to Issuing Bank for the issuance, amendment or renewal of a Letter of Credit.
LC Expiry Date Conditions the requirements that a Letter of Credit have an
expiration date that is no more than 365 days from the date of issuance in the case of standby
Letters of Credit and no more than 180 days from the date of issuance in the case of documentary
Letters of Credit and that, in either
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event, such expiration date be at least 30 days prior to the last Business Day of the Term
unless otherwise agreed by Agent in its discretion.
LC Facility the subfacility in the amount of $30,000,000 for Letters of Credit
established as part of the Revolver Commitments pursuant to Section 2.3.
LC Obligations on any date, an amount (in Dollars) equal to the sum of (without
duplication) (i) all amounts then due and payable by any Obligor on such date by reason of any
payment that is made by Issuing Bank under a Letter of Credit and that has not been repaid to
Issuing Bank, plus (ii) the aggregate undrawn amount of all Letters of Credit which are
then outstanding or for which an LC Application has been delivered to and accepted by Issuing Bank,
plus (iii) all fees and other amounts due in respect of Letters of Credit outstanding on
such date.
LC Request a request for issuance of a Letter of Credit, to be provided by a
Borrower to Issuing Bank, in form satisfactory to Agent and Issuing Bank.
Lender Indemnitees Lenders and their respective Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
Lenders shall have the meaning given to it in the preamble to this Agreement and
shall include BofA (whether in its capacity as a provider of Loans under Section 2 or as the
provider of Swingline Loans under Section 4.1.3) and any other Person who may from time to time
become a Lender under this Agreement.
Letter of Credit any standby or documentary letter of credit issued by Issuing Bank
for the account of any Borrower (whether individually or as co-applicant with another Obligor or
Subsidiary of an Obligor).
Letter-of-Credit Right shall have the meaning given to the term
letter-of-credit-right in the UCC.
LIBOR Lending Office with respect to a Lender, the office designated by such Lender
as its LIBOR Lending Office or, in the absence of such designation, the office of such Lender at
the address shown for such Lender on the signature page hereof (or on any Assignment and
Acceptance, in the case of an assignee) or such other office of such Lender or any of its
Affiliates that is hereafter designated by written notice to Agent.
LIBOR Loan a Loan, or portion thereof, during any period in which it bears interest
at a rate based upon the applicable Adjusted LIBOR Rate.
Lien any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on common law, statute
or contract. The term Lien shall also include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases (as lessor) and other title
exceptions and encumbrances affecting Property. For the purpose of this Agreement, an Obligor
shall be deemed to be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
Lien Waiver an agreement duly executed in favor of Agent, in form and content
reasonably acceptable to Agent, by which (i) for locations leased by an Obligor, an owner or
mortgagee of premises upon which any Property of an Obligor is located agrees to waive or
subordinate any Lien it may have
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with respect to such Property in favor of Agents Lien therein and to permit Agent to enter
upon such premises and remove such Property or to use such premises to store or dispose of such
Property, or (ii) for locations at which any Obligor places Inventory with a warehouseman or a
processor, such warehouseman or processor agrees to waive or subordinate any Lien it may have with
respect to such Property in favor of Agents Lien therein and to permit Agent to enter upon such
premises and remove such Property or to use such premises to store or dispose of such Property;
provided, that the Lien waiver agreements executed in connection with the Existing Loan Agreement
are deemed reasonably acceptable Lien Waivers hereunder.
Loan a Revolver Loan (and each Base Rate Loan and LIBOR Loan comprising such Loan).
Loan Account the loan account established by each Lender on its books pursuant to
Section 5.7.
Loan Documents this Agreement, the Other Agreements and the Security Documents.
Loan Year a period commencing each calendar year on the same month and day as the
date of this Agreement and ending on the same month and day in the immediately succeeding calendar
year, with the first such period (i.e. the first Loan Year) to commence on the date of this
Agreement.
Margin Stock shall have the meaning ascribed to it in Regulation U and of the Board
of Governors.
Material Adverse Effect the effect of any event, condition, action, omission or
circumstance, which, alone or when taken together with other events, conditions, actions, omissions
or circumstances occurring or existing concurrently therewith, (i) has a material adverse effect
upon the business, operations, Properties or condition (financial or otherwise) of Obligors, taken
as a whole; (ii) has or would be reasonably expected to have any material adverse effect whatsoever
upon the validity or enforceability of this Agreement or any of the other Loan Documents against
Parent, any Borrower or any other Obligor with assets having a book value of $5,000,000 or more;
(iii) has a material adverse effect upon the value of the Collateral, taken as a whole, the Liens
of Agent with respect to the Collateral, taken as a whole, or the priority of such Liens, taken as
a whole; (iv) impairs in any material respect the ability of Parent, any Borrower or any other
Obligor with assets having a book value of $5,000,000 or more to perform its obligations under this
Agreement or any of the other Loan Documents, including repayment of any of the Obligations when
due; or (v) impairs in any material respect the ability of Agent or any Lender to enforce or
collect the Obligations or realize upon any material portion of the Collateral in accordance with
the Loan Documents and Applicable Law.
Material Contract an agreement to which an Obligor is a party (other than the Loan
Documents) (i) which is deemed to be a material contract as provided in Regulation S-K promulgated
by the SEC under the Securities Act of 1933 (excluding material contracts described under paragraph
(b)(10)(iii) of Item 601 of Regulation S-K) or (ii) for which breach, termination, cancellation,
nonperformance or failure to renew would reasonably be expected to have a Material Adverse Effect.
Maximum Rate the maximum non-usurious rate of interest permitted by Applicable Law
that at any time, or from time to time, may be contracted for, taken, reserved, charged or received
on the Debt in question or, to the extent that at any time Applicable Law may thereafter permit a
higher maximum non-usurious rate of interest, then such higher rate. Notwithstanding any other
provision hereof, the Maximum Rate shall be calculated on a daily basis (computed on the actual
number of days elapsed over a year of 365 or 366 days, as the case may be).
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Membership Interests the membership interests of CIP and GGB LLC previously owned by
Garlock Sealing and sold to Coltec pursuant to the CIP/GGB Purchase Agreement.
Money Borrowed as applied to any Person, without duplication, (i) Debt arising from
the lending of money by any other Person to such Person; (ii) Debt, whether or not in any such case
arising from the lending of money by another Person to such Person, (A) which is represented by
notes payable or drafts accepted that evidence extensions of credit, (B) which constitutes
obligations evidenced by bonds, debentures, notes or similar instruments, or (C) upon which
interest charges are customarily paid (other than accounts payable) or that was issued or assumed
as full or partial payment for Property (other than accounts payable); (iii) Debt that constitutes
a Capitalized Lease Obligation; (iv) reimbursement obligations with respect to letters of credit or
guaranties of letters of credit; and (v) Debt of such Person under any guaranty of obligations that
would constitute Debt for Money Borrowed under clauses (i) through (iii) hereof, if owed directly
by such Person.
Moodys Moodys Investors Services, Inc.
Multiemployer Plan has the meaning set forth in Section 4001(a)(3) of ERISA.
Net Amount on any date of determination thereof, the face amount of Accounts of
Borrowers on such date less any and all returns, rebates, discounts (which may, at Agents option,
be calculated on shortest terms), credits, allowances or sales, excise or other similar Taxes at
any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection
with, or any interest accrued on the amount of, such Accounts at such date.
Net Orderly Liquidation Value Percentage at any date and with respect to any
Inventory, the percentage of the Value of such Inventory expected to be realized at an orderly,
negotiated sale of such Inventory that is held within a reasonable period of time, as such
percentage is reasonably determined by Agent from the most recent Orderly Liquidation Value
Appraisal received by Agent on or before such date.
Non-Consenting Lender as defined in Section 13.17.
Notice of Borrowing as defined in Section 4.1.1(i).
Notice of Conversion/Continuation as defined in Section 3.1.2(ii).
Noticed Hedge Secured Bank Product Obligations arising under a Hedging Agreement.
Obligations in each case, whether now in existence or hereafter incurred or arising,
(i) the principal of, and interest and premium, if any, on the Loans, (ii) all LC Obligations and
all other obligations of any Obligor to Agent or Issuing Bank arising in connection with the
issuance of any Letter of Credit, (iii) all liabilities and obligations of Borrowers under any
indemnity for Claims, (iv) all Extraordinary Expenses, (v) all Secured Bank Product Obligations,
and (vi) all other Debts, covenants, duties and obligations (including Contingent Obligations) now
or at any time or times hereafter owing by any Obligor to Agent or any Lender under or pursuant to
this Agreement or any of the other Loan Documents (including any Guaranty), in each case, whether
evidenced by any note or other writing, whether arising from any extension of credit, opening of a
letter of credit, acceptance, loan, guaranty, indemnification or otherwise and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several,
including all interest, charges, expenses, fees or other sums chargeable to any or all Obligors
under any of the Loan Documents.
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Obligor each Borrower and each Guarantor.
Orderly Liquidation Value Appraisal an appraisal of the orderly liquidation value of
Inventory of Borrowers performed by an appraiser reasonably satisfactory to Agent, which appraisal
shall include as a factor in the determination of orderly liquidation value, all costs and expenses
projected to be incurred in the conduct of any liquidation of all or any portion of the Inventory.
Ordinary Course of Business with respect to any transaction involving any Person,
the ordinary course of such Persons business, as undertaken by such Person in good faith and not
for the purpose of evading any covenant or restriction in any Loan Document.
Organic Documents with respect to any Person, its charter, certificate or articles
of incorporation, bylaws, articles of organization, limited liability agreement, operating
agreement, members agreement, shareholders agreement, partnership agreement, certificate of
partnership, certificate of formation, voting trust, or similar agreement or instrument governing
the formation or operation of such Person.
OSHA the Occupational Safety and Hazard Act of 1970.
Other Agreements the Fee Letter, the LC Documents, the Subordination Agreements,
each Lien Waiver, and any and all other agreements, instruments and documents (other than this
Agreement and the Security Documents), heretofore, now or hereafter executed by any Borrower or any
other Obligor and delivered to Agent or any Lender, in each case in respect of the transactions
contemplated by this Agreement or other Loan Documents.
Other Assets as defined in the definition of Permitted Term Loan set forth in this
Agreement.
Other Taxes all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made under any Loan Document or
from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
Out-of-Formula Condition as defined in Section 2.1.2.
Out-of-Formula Loan a Revolver Loan made or outstanding when an Out-of-Formula
Condition exists or the amount of any Revolver Loan which, when funded, results in an
Out-of-Formula Condition.
Parent as defined in the preamble to this Agreement.
Participant as defined in Section 14.2.1.
Participating Lender as defined in Section 2.3.2(i).
Patent Security Agreement the Second Amended and Restated Patent Security Agreement
dated on or about the date of this Agreement, by Borrowers in favor of Agent on or before the
Closing Date and by which Borrowers shall grant or re-grant, as the case may be, to Agent, for the
benefit of Secured Parties, as security for the Obligations, a security interest in all of
Borrowers right, title and interest in and to the patents described therein.
Paying Borrower as defined in Section 5.10.4.
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Payment Account one or more accounts maintained by Agent to which all monies from
time to time deposited to a Dominion Account shall be transferred and all other payments shall be
sent in immediately available federal funds.
Payment Intangible shall have the meaning given to the term payment intangible in
the UCC.
Payment Item each check, draft, or other item of payment payable to a Borrower
evidencing or constituting proceeds of any of the Collateral.
Pending Revolver Loans at any date, the aggregate principal amount of all Revolver
Loans which have been requested in any Notice of Borrowing received by Agent but which have not
theretofore been advanced by Agent or Lenders.
Permitted Acquisition an acquisition by Parent, a Borrower or any of their
Subsidiaries (other than a Dormant Subsidiary) (i) of all or substantially all of the assets of any
other Person (or a division of any other Person) in a line of business permitted to be engaged in
by Borrowers and their Subsidiaries pursuant to Section 10.2.19, (ii) of all of the capital stock
or other equity interests of any other Person in a line of business permitted to be engaged in by
Borrowers and their Subsidiaries pursuant to Section 10.2.19, or (iii) through a merger or
consolidation of Parent, a Borrower or any of their Subsidiaries (other than a Dormant Subsidiary)
with another Person in a line of business permitted to be engaged in by Borrowers and their
Subsidiaries pursuant to Section 10.2.19, and, in each case, with respect to which Borrowers have
either (a) pro forma Average Availability for the 30-day period immediately preceding, and pro
forma Availability after giving effect to, the closing of such acquisition greater than an amount
equal to the greater of (i) the lesser of 25% of (A) the Borrowing Base or (B) the Commitments, or
(ii) $20,000,000, or (b) (i) pro forma Average Availability for the 30-day period immediately
preceding, and pro forma Availability after giving effect to, the closing of such acquisition,
greater than the greater of (A) the lesser of 20% of (I) the Borrowing Base or (II) the
Commitments, or (B) $17,500,000, and (ii) maintained a pro forma Fixed Charge Coverage Ratio, after
giving effect to the closing of such acquisition, measured for the twelve-month period ending at
the most recent month end preceding the closing of such acquisition for which financial statements
have been delivered by Borrowers to Agent in accordance with Section 10.1.3 of this Agreement, that
is greater than 1.00 to 1.00. In no event shall any assets of any such new Subsidiary that becomes
a Borrower hereunder be included in the Borrowing Base (including the calculation of Availability
in connection therewith), or any Loans be made to such new Subsidiary, until Agent is satisfied
with the results of such field examinations and other due diligence as Agent may deem appropriate
with respect to such new Subsidiary; provided, that if such field examinations and due
diligence have been completed to Agents satisfaction, the assets of such new Subsidiary may be
included for purposes of determining pro forma Average Availability as set forth above in this
definition. In addition to the foregoing, if no Default or Event of Default shall have occurred
and be continuing, any Foreign Subsidiary may acquire all or substantially all of the assets of any
other Person (or a division of any other Person), or all of the capital stock or other equity
interests of any other Person, in a line of business permitted to be engaged in by Borrowers and
their Subsidiaries pursuant to Section 10.2.19.
Permitted Asset Disposition so long as no Event of Default exists at the time
thereof, any of the following Asset Dispositions: (i) sales of Inventory (and, to the extent
permitted under Section 8.3.3, consignments of Inventory) and licenses or leases of Intellectual
Property in the Ordinary Course of Business (provided that no such license or lease shall be on an
exclusive basis if the Intellectual Property which is the subject thereof is necessary or desirable
to enable Agent to sell, dispose, or complete the manufacture of, or otherwise exercise its rights
with respect to, any Collateral); (ii) sales and dispositions of Equipment, in the Ordinary Course
of Business, that is obsolete or no longer used by an Obligor in its business; (iii) Asset
Dispositions of business units or lines of business for fair market value (with at least
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80% of the proceeds of any such sale or disposition payable to Obligors in cash), so long as
(a) the aggregate net book value of all assets subject to such Asset Dispositions during any Loan
Year does not exceed fifteen percent (15%) of Consolidated Total Assets as set forth in the most
recent financial statements delivered pursuant to Section 10.1.3(i) hereof, and (b) the aggregate
net book value of all assets subject to such Asset Dispositions from and after the Closing Date
does not exceed thirty percent (30%) of Consolidated Total Assets as of December 31, 2010;
provided, that, if any of the assets sold or disposed of pursuant to this
clause (iii) consist of Accounts or Inventory, then, on the date of such sale or
disposition, Borrowers shall prepay the Obligations (but excluding Banking Relationship Debt and
standby Letters of Credit issued by Issuing Bank) in an amount at least equal to the net book value
of such Accounts and Inventory from the net proceeds of such sale or disposition and provide Agent
an updated Borrowing Base Certificate giving effect to such sale or disposition; (iv) sales or
other dispositions of Fixed Assets for fair market value, provided, that, Availability shall be
greater than $20,000,000 immediately before and after any such sale or disposition; (v) transfers
by Obligors to their officers of any key-man life insurance policies maintained by any Obligor with
respect to such officers as of the Closing Date or the cash-out by any Obligor of its proportional
share of any such policy; (vi) sales or other dispositions by Foreign Subsidiaries of (a) Property
(other than Fixed Assets) having a fair market value upon such sale or disposition not in excess of
$5,000,000 in the aggregate during the Term, and (b) Fixed Assets for fair market value; (vii)
transfers of Property to a Borrower by another Obligor or a Subsidiary, or transfers of Property to
a Guarantor by another Guarantor or a Subsidiary; (viii) dispositions of Inventory that is not
Eligible Inventory because it is obsolete, unmerchantable or otherwise unsaleable in the Ordinary
Course of Business of the Borrower making such disposition; (ix) Asset Dispositions that consist
solely of a termination of a lease of real or personal Property that is not necessary to the
conduct of an Obligors business in the ordinary course, would not reasonably be expected to have a
Material Adverse Effect and does not result from an Obligors default or failure to perform under
such lease; (x) Asset Dispositions that consist of a deposit to secure an obligation to the extent
such deposit is permitted under Section 10.2.5; (xi) sales by an Obligor of Collateral having a
fair market value not to exceed (a) $1,000,000 during any Loan Year and (b) $5,000,000 in the
aggregate during the Term; provided, that, on the date of such sale, Borrowers
shall prepay the Obligations (but excluding Banking Relationship Debt and standby Letters of Credit
issued by Issuing Bank) in an amount at least equal to the net book value of such Collateral from
the net proceeds of such sale and provide Agent an updated Borrowing Base Certificate giving effect
to such sale; (xii) any cash-out of guaranteed investment contracts held by the C.I.O.C. Trust, or
any use of such guaranteed investment contracts or the proceeds therefrom to satisfy obligations of
an Obligor in the Ordinary Course of Business, including pension plan obligations; (xiii) the
transaction between Compressor Products and AcquireCo pursuant to which Compressor Products
exchanged the Allwest Note for the AcquireCo Note, which transaction was consummated on February
22, 2011; or (xiv) any other Asset Disposition that has been consented to in writing by Agent and
the Required Lenders. For the avoidance of doubt, each Obligor and its Subsidiaries may engage in
Permitted Asset Dispositions in connection with a merger or consolidation of Parent, a Borrower or
any of their Subsidiaries (other than a Dormant Subsidiary) with another Person or otherwise.
Permitted Contingent Obligations Contingent Obligations (i) arising from
endorsements of items of payment for collection or deposit in the Ordinary Course of Business, (ii)
arising from Hedging Agreements entered into in the Ordinary Course of Business permitted by this
Agreement, (iii) of any Obligor and its Subsidiaries set forth on Schedule 10.2.3, including
extensions and renewals thereof that do not increase the amount of such Contingent Obligations as
of the date of such extension or renewal, (iv) incurred in the Ordinary Course of Business with
respect to surety bonds, appeal bonds, performance bonds and other similar obligations, (v) arising
under indemnity agreements to title insurers to cause such title insurers to issue to Agent title
insurance policies, (vi) with respect to customary indemnification obligations (a) in favor of
sellers in connection with Permitted Acquisitions and purchasers in connection with Permitted Asset
Dispositions, or (b) in connection with acquisitions or dispositions that occurred
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prior to the Closing Date, (vii) consisting of reimbursement obligations from time to time
owing by any Borrower to Issuing Bank with respect to Letters of Credit (but in no event to include
reimbursement obligations at any time owing by a Borrower to any other Person that may issue
letters of credit for the account of Borrowers), (viii) under any Guaranty, (ix) under the
Coltec/Stemco Subordinated Guaranty, (x) arising under guaranties by any Obligor of the payment or
performance of any Debt or other obligations of another Obligor permitted to be incurred under the
terms of this Agreement, (xi) arising under unsecured guaranties entered into by Parent or another
Obligor in the Ordinary Course of Business guaranteeing obligations and liabilities not
constituting Debt of any Obligor or any Obligors respective Subsidiaries, (xii) arising under
unsecured guaranties entered into by Parent or another Obligor guaranteeing obligations and
liabilities incurred by Foreign Subsidiaries in the Ordinary Course of Business under commercial
credit cards, and (xiii) arising under indemnity agreements with respect to discontinued operations
to the extent that (a) such Contingent Obligations existed as of the Closing Date, (b) such
Contingent Obligations have been approved by Agent or (c) the aggregate amount of such Contingent
Obligations incurred under this clause (xiii) without Agents approval and arising after
the Closing Date does not exceed $5,000,000.
Permitted Distributions (i) so long as no Default or Event of Default shall have
occurred and be continuing at the time of any such Distribution, Distributions from any Borrower or
any Subsidiary of any Borrower to Parent in an amount during any 12-month period, which when added
to all other amounts received by Parent during such period from any Borrower or any Subsidiary of
any Borrower from any source (including payments on any Debt of such Borrower or any of their
respective Subsidiaries held by Parent, but excluding Distributions received by Parent in
accordance with clause (ii) below) shall not exceed 120% of Parents actual operating expenses
during such period, and (ii) a Convertible Debenture Distribution or other Distributions by an
Obligor so long as, in each case, (a) no Default or Event of Default shall have occurred and be
continuing at the time of any such Distribution, and (b) either (i) pro forma Average Availability
for the 30-day period immediately preceding such Distribution and pro forma Availability after
giving effect to such Distribution is greater than an amount equal to the greater of (A) the lesser
of 25% of (I) the Borrowing Base or (II) the Commitments, or (B) $20,000,000, or (ii) (A) pro forma
Average Availability for the 30-day period immediately preceding such Distribution and pro forma
Availability after giving effect to such Distribution is greater than the greater of (I) the lesser
of 20% of (x) the Borrowing Base or (y) the Commitments, or (II) $17,500,000, and (B) Borrowers
maintain a pro forma Fixed Charge Coverage Ratio, after giving effect to such Distribution,
measured for the twelve-month period ending at the most recent month end preceding such
Distribution for which financial statements have been delivered by Borrowers to Agent in accordance
with Section 10.1.3 of this Agreement that is greater than 1.00 to 1.00. Notwithstanding the
foregoing, no such Distribution may be made (I) unless such Distribution is permitted under all
Applicable Laws, and (II) unless the Person making such Distribution would be Solvent after giving
effect to such Distribution (and any Revolver Loans made hereunder in connection therewith) and, to
the extent any such Distribution is to be made with the proceeds of Revolver Loans, Obligors shall
have delivered to Agent such certificates, financial statements and financial projections as Agent
may reasonably request at the time of any such proposed Revolver Loan in order to confirm Obligors
compliance with this subclause (II).
Permitted Fixed Asset Debt Debt of Obligors and their Subsidiaries that is (i) not
in excess of $50,000,000 in aggregate principal amount outstanding at any time and secured only by
a Fixed Asset Lien, or (ii) the Permitted Term Loan. For the purposes of this definition, (a) any
such Debt (but not any increase in the principal amount thereof after the Closing Date) that is
listed on Schedule 10.2.3 shall not be included in the calculation of the amount of Permitted Fixed
Asset Debt and (b) the principal amount of any Debt consisting of capitalized leases shall be
computed as a Capitalized Lease Obligation.
Permitted Foreign Subsidiary Investments means (a) any Debt owing from any Foreign
Subsidiary to Parent or any Borrower (or any Borrowers Subsidiary) or any capital contribution
made by
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Parent or any Borrower (or any Borrowers Subsidiary) in any Foreign Subsidiary which is
incurred or made after the Closing Date, so long as immediately prior to and immediately after the
incurrence of such Debt or the making of such capital contribution, (i) no Default or Event of
Default shall exist, and (ii) either (A) pro forma Average Availability for the 30-day period
immediately preceding the incurrence of such Debt or the making of such capital contribution and
pro forma Availability after giving effect to the incurrence of such Debt or the making of such
capital contribution is greater than an amount equal to the greater of (I) the lesser of 25% of (x)
the Borrowing Base or (y) the Commitments, or (II) $20,000,000, or (B) (I) pro forma Average
Availability for the 30-day period immediately preceding the incurrence of such Debt or the making
of such capital contribution and pro forma Availability after giving effect to the incurrence of
such Debt or the making of such capital contribution is greater than the greater of (x) the lesser
of 20% of (1) the Borrowing Base or (2) the Commitments, or (y) $17,500,000, and (II) Borrowers
maintain a pro forma Fixed Charge Coverage Ratio, after giving effect to the incurrence of such
Debt or the making of such capital contribution, measured for the twelve-month period ending at the
most recent month end preceding the incurrence of such Debt or the making of such capital
contribution for which financial statements have been delivered by Borrowers to Agent in accordance
with Section 10.1.3 of this Agreement that is greater than 1.00 to 1.00, and (b) Debt of any
Foreign Subsidiary existing on the Closing Date, including any refinancing or refunding thereof
that satisfies the Refinancing Conditions.
Permitted Lien a Lien of a kind specified in Section 10.2.5.
Permitted Mergers/Liquidations any merger or consolidation of (i) a Borrower with
any other Borrower (or any liquidation of a Borrower in which its assets are contributed to another
Borrower), (ii) any Subsidiary of any Borrower with or into any Borrower (or any liquidation of any
such Subsidiary in which its assets are contributed to a Borrower), and (iii) any Subsidiary of any
Borrower with any Subsidiary of such Borrower or any other Borrower (or any liquidation of such
Subsidiary in which its assets are contributed to another Subsidiary of such Borrower or any other
Borrower); provided, that, in any such case described in clauses (i), (ii) and
(iii) above, (a) the surviving Person in any such merger or consolidation shall be a Wholly
Owned Subsidiary of Parent and (b) in no event whatsoever shall any Dormant Subsidiary be a party
to any such merger or consolidation or liquidation.
Permitted Restrictive Agreements as defined in Section 10.2.15.
Permitted Term Loan a term loan, the proceeds of which shall be solely used for the
financing of one or more acquisitions, (i) up to a principal amount that, after giving pro forma
effect thereto, does not result in a pro forma Senior Secured Leverage Ratio greater than 2.50 to
1.00 (and, in all events, is not greater than $200,000,000), (ii) on generally accepted market
terms and conditions (including (x) a maturity date that is on or after the date that is 90 days
after the Commitment Termination Date, and (y) a weighted average life to maturity from the
incurrence of the initial tranche of the Permitted Term Loan that is at least four years), (iii)
secured by any or all of the Property of Obligors that does not constitute Collateral under this
Agreement (such Property is referred to herein as the Other Assets), provided
that in the event such Permitted Term Loan shall be secured by a Lien upon any portion of
the Collateral, Obligors shall grant to Agent, for the benefit of itself and Lenders, a Lien (of
similar priority as the Lien on the Collateral securing the Permitted Term Loan) upon the Other
Assets; and, provided, further, subject to clause (iv) below, in the event the
Obligors agree to grant to Agent, for the benefit of itself and Lenders, a Lien upon the Other
Assets, the Agent and the Lenders agree to permit Obligors to grant, for the benefit of the lenders
of the Permitted Term Loan, a Lien (of similar priority as the Lien on the Other Assets securing
the Obligations) upon the Collateral and (iv) subject to an intercreditor agreement satisfactory to
the Required Lenders in their sole and absolute discretion.
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Person an individual, partnership, corporation, limited liability company, limited
liability partnership, joint stock company, land trust, business trust, or unincorporated
organization, or a Governmental Authority.
PIK Interest interest on account of Debt owing under either the Coltec Subordinated
Note or the Stemco Subordinated Note and that is payable-in-kind and not in cash. For the
avoidance of doubt, (i) to the extent any portion of the foregoing interest is paid in cash, such
interest shall not constitute PIK Interest under this Agreement, and (ii) once any of the
foregoing interest is paid-in-kind, thereafter it shall constitute principal and any subsequent
payment thereof shall constitute a payment of principal and not interest.
Plan an employee pension benefit plan that is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal Revenue Code and that is
either (i) maintained by an Obligor for employees or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer makes
contributions and to which an Obligor is then making or accruing an obligation to make
contributions or has within the preceding 5 years made or accrued such contributions.
Pledge Agreement any Pledge Agreement or similar document executed by Parent, any
Borrower or any of their respective Subsidiaries evidencing the pledge by any such Person to Agent,
for the benefit of Secured Parties, as security for the Obligations, of any Equity Interests owned
by such Person in any of its Subsidiaries and/or the pledge of any Debt owing to such Person.
Prime Rate the rate of interest announced by BofA from time to time as its prime
rate. Such rate is set by BofA on the basis of various factors, including its costs and desired
return, general economic conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above or below such rate. Any change in such rate announced by
BofA shall take effect at the opening of business on the day specified in the public announcement
of such change.
Pro Rata with respect to any Lender on any date, a percentage (expressed as a
decimal, rounded to the ninth decimal place) derived at by dividing the amount of the total
Commitments of such Lender on such date by the aggregate amount of the Commitments of all Lenders
on such date (regardless of whether or not any of such Commitments have been terminated on or
before such date).
Projections (i) on and prior to the Closing Date and thereafter until Agent and
Lenders receive new projections pursuant to Section 10.1.5, the projections of Obligors and their
Subsidiaries financial condition, results of operations and cash flow, prepared on a quarterly
basis for the Fiscal Year ending December 31, 2011, and prepared on an annual basis for the
five-year period ending December 31, 2015; and (ii) thereafter, the projections most recently
received by Agent and Lenders pursuant to and as required by Section 10.1.5, which, at Agents
request, will include consolidating projections.
Properly Contested in the case of any Debt of an Obligor (including any Taxes) that
is not paid as and when due or payable by reason of such Obligors bona fide dispute concerning its
liability to pay same or concerning the amount thereof, (i) such Debt is being properly contested
in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such
Obligor has established appropriate reserves as shall be required in conformity with GAAP; (iii)
the non-payment of such Debt will not have a Material Adverse Effect and will not result in a
forfeiture or sale of any assets of such Obligor with a book value of $500,000 or more; (iv) no
Lien (other than a Permitted Lien) is imposed upon any of such Obligors assets with respect to
such Debt unless such Lien is at all times junior and subordinate in priority to the Liens in favor
of Agent (except only with respect to property taxes that have priority as a matter of Applicable
Law) and enforcement of such Lien is stayed during the period prior to
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the final resolution or disposition of such dispute; (v) if the Debt results from, or is
determined by the entry, rendition or issuance against an Obligor or any of its assets of a
judgment, writ, order or decree, enforcement of such judgment, writ, order or decree is stayed
pending a timely appeal or other judicial review; and (vi) if such contest is abandoned, settled or
determined adversely (in whole or in part) to such Obligor, such Obligor promptly pays such Debt
and all penalties, interest and other amounts due in connection therewith.
Property any interest in any kind of property or asset, whether real, personal or
mixed and whether tangible or intangible, including Equity Interests.
Protective Advances as defined in Section 2.1.4.
RCRA the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).
Real Property with respect to any Person, all of such Persons now or hereafter
owned or leased estates in real property, including, without limitation, all fee, leasehold and
future interests, together with all of such Persons now or hereafter owned or leased interests in
the improvements thereon, the fixtures attached thereto and the easements appurtenant thereto.
Receivable Records all records and documents evidencing or relating to any of the
Receivables, including, without limitation, invoices, purchase orders, delivery receipts, waybills,
payment records, receivable agings and other like documents, whether or not in written or
electronic format or in any other medium.
Receivables (i) all Accounts (and related Supporting Obligations), and (ii) all
other rights to payment arising from services rendered or from the sale, lease, use or other
disposition of Inventory or Documents covering or otherwise related to Inventory, whether such
rights to payment constitute Payment Intangibles, Letter-of-Credit Rights, Supporting Obligations
or any other classification of property, or are evidenced in whole or in part by Instruments,
Chattel Paper or Documents.
Refinancing Conditions the following conditions, each of which must be satisfied
before Refinancing Debt shall be permitted under Section 10.2.3: (i) the Refinancing Debt is in an
aggregate principal amount that does not exceed the aggregate principal amount of the Debt being
extended, renewed or refinanced, (ii) the Refinancing Debt has a later or equal final maturity (or
a maturity after the scheduled last day of the Term) and a longer or equal weighted average life
than the Debt being extended, renewed or refinanced, (iii) the Refinancing Debt does not bear a
rate of interest that exceeds, as of the date of such extension, renewal or refinancing, a market
rate (as determined in good faith by a Senior Officer) for Debt of such type issued by an entity
similar to the Obligor that is liable on the Debt being extended, renewed or refinanced, (iv) if
the Debt being extended, renewed or refinanced is subordinate to the Obligations, the Refinancing
Debt is subordinated to the same extent, (v) the covenants contained in any instrument or agreement
relating to the Refinancing Debt are no less favorable in any material respect, taken as a whole,
to the Obligors than those relating to the Debt being extended, renewed or refinanced, (vi) at the
time of and after giving effect to such extension, renewal or refinancing, no Default or Event of
Default shall exist, (vii) no additional Lien is granted to secure the repayment of the Refinancing
Debt (it being acknowledged that an existing Lien that applies to after acquired Property shall not
constitute a new Lien), and (viii) no additional Obligor (or Subsidiary thereof) is or may become
obligated on the Refinancing Debt.
Refinancing Debt Debt for Money Borrowed that is permitted by Section 10.2.3 and
that is the subject or the result of an extension, renewal or refinancing.
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Regulation D Regulation D of the Board of Governors.
Register the register maintained by Agent in accordance with Section 5.7.2.
Reimbursement Date as defined in Section 2.3.1(iii).
Rent Reserve on any date, the aggregate of (i) all past due rent, fees or other
charges owing on such date by any Borrower to any landlord of any premises where any of the
Collateral is located or to any processor, repairman, mechanic or other person who is in possession
of any Collateral or has asserted any Lien or claim thereto, and (ii) such reserve as Agent may
establish equal to up to 3 months rent or other charges with respect to any Collateral in the
possession of, or at a location owned by, a Person other than a Borrower if such Person has not
duly executed and delivered to Agent a Lien Waiver satisfactory to Agent.
Report as defined in Section 13.1.5.
Reportable Event any of the events set forth in Section 4043(c) of ERISA other than
any such event for which the 30-day notice requirement under ERISA has been waived in regulations
issued by the Pension Benefit Guaranty Corporation or expressly waived by the Pension Benefit
Guaranty Corporation.
Required Lenders subject to Section 4.2, at any date of determination thereof, two
or more Lenders having Commitments representing at least 50.1% of the aggregate Commitments at such
time; provided, however, that (i) if at any time there is only one Lender
hereunder, the term Required Lenders shall mean such Lender, (ii) if any Lender shall be a
Defaulting Lender, then, for so long as such Lender is a Defaulting Lender, the term Required
Lenders shall mean two or more Lenders (excluding each Lender that is a Defaulting Lender) having
Commitments representing at least 50.1% of the aggregate Commitments (excluding the Commitments of
each Defaulting Lender) at such time, and (iii) if all of the Commitments have been terminated, the
term Required Lenders shall mean two or more Lenders (excluding each Lender that is a Defaulting
Lender) holding Loans (including Swingline Loans) representing at least 50.1% of the aggregate
principal amount of Loans (including Swingline Loans) outstanding at such time.
Reserve Percentage the reserve percentage (expressed as a decimal, rounded up to the
nearest 1/16th of 1%) applicable to member banks under regulations issued from time to time by the
Board of Governors for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as Eurocurrency Liabilities).
Restricted Investment any acquisition of Property by an Obligor or any of its
Subsidiaries in exchange for cash or other Property, whether in the form of an acquisition of
Equity Interests or Debt, or the purchase or acquisition by such Obligor or any of its Subsidiaries
of any other Property, or a loan, advance, capital contribution or subscription, except the
following: (i) acquisitions of Fixed Assets or other Property to be used in the Ordinary Course of
Business of such Obligor or any of its Subsidiaries so long as the acquisition costs thereof are
Capital Expenditures permitted hereunder; (ii) acquisitions of goods held for sale or lease or to
be used in the manufacture of goods or the provision of services by such Obligor or any of its
Subsidiaries in the Ordinary Course of Business and licenses and leases of Intellectual Property in
the Ordinary Course of Business; (iii) acquisitions of current assets in the Ordinary Course of
Business of such Obligor or any of its Subsidiaries; (iv) investments in Domestic Subsidiaries of
Parent that are Obligors; (v) acquisitions of Cash Equivalents to the extent they are not subject
to rights of offset (other than Liens permitted pursuant to Section 10.2.5(x)) in favor of any
Person other than Agent, a Lender or any Affiliate thereof; (vi) acquisitions of Approved
Short-Term
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Investments; (vii) loans and other advances of money to the extent not prohibited by Section
10.2.2; (viii) Permitted Foreign Subsidiary Investments; (ix) Hedging Agreements entered into in
the Ordinary Course of Business permitted by this Agreement or with Agents prior written consent;
(x) investments in Subsidiaries that are not wholly-owned Subsidiaries or investments in which any
Obligor or any of its Subsidiaries maintains a minority position, (A) so long as the aggregate
purchase price for all such investments during any Loan Year does not exceed one percent (1%) of
Consolidated Total Assets as set forth in the most recent financial statements delivered pursuant
to Section 10.1.3(i) hereof, or (B) with the prior written consent of Agent; and (xi) Permitted
Acquisitions.
Restrictive Agreement an agreement (other than any of the Loan Documents) that, if
and for so long as an Obligor or any Subsidiary of such Obligor is a party thereto, would prohibit,
condition or restrict such Obligors or Subsidiarys right to incur or repay Debt for Money
Borrowed (including any of the Obligations); grant Liens upon any of such Obligors or Subsidiarys
assets (including Liens granted in favor of Agent pursuant to the Loan Documents); declare or make
Distributions; amend, modify, extend or renew any agreement evidencing Debt for Money Borrowed
(including any of the Loan Documents); or repay any Debt owed to another Obligor.
Revolver Commitment at any date for any Lender, the obligation of such Lender to
make Revolver Loans and to purchase participations in LC Obligations pursuant to the terms and
conditions of this Agreement, which shall not exceed the principal amount set forth opposite such
Lenders name under the heading Revolver Commitment on the signature pages of this Agreement or
the principal amount set forth in the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement (including, without limitation,
Section 2.2) or to give effect to any applicable Assignment and Acceptance; and Revolver
Commitments means the aggregate principal amount of the Revolver Commitments of all Lenders,
the maximum amount of which on any date shall be $125,000,000 as increased from time to time
pursuant to Section 2.2.
Revolver Loan a loan made by Lenders as provided in Section 2.1 (including any
Out-of-Formula Loan) or a Swingline Loan funded solely by BofA.
S&P Standard & Poors Ratings Group, a division of McGraw-Hill, Inc.
Schedule of Accounts as defined in Section 8.2.1.
SEC Securities and Exchange Commission.
Secured Bank Product Obligations Banking Relationship Debt owing to a Secured Bank
Product Provider, up to the maximum amount (in the case of any Secured Bank Product Provider other
than BofA and its Affiliates) specified by such provider in writing to Agent, which amount may be
established or increased (by further written notice to Agent from time to time) as long as no
Default or Event of Default exists and no Out-of-Formula Condition would result from establishment
of a Bank Product Reserve for such amount and all other Secured Bank Product Obligations.
Secured Bank Product Provider (a) BofA or any of its Affiliates; and (b) any other
Lender or Affiliate of a Lender that is providing a Bank Product, provided such provider delivers
written notice to Agent, in form and substance satisfactory to Agent, by 10 days after the Closing
Date for Bank Products in existence on the Closing Date or 10 days following creation of the Bank
Product for Bank Products created after the Closing Date, (i) describing the Bank Product and
setting forth the maximum amount to be secured by the Collateral and the methodology to be used in
calculating such amount, and (ii) agreeing to be bound by Section 13.20.
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Secured Parties Agent, Issuing Bank, Lenders (including BofA as the provider of
Swingline Loans) and Secured Bank Product Providers.
Security Documents each Patent Security Agreement, each Copyright Security
Agreement, each Trademark Security Agreement, each Guaranty, and all other instruments and
agreements now or at any time hereafter securing the whole or any part of the Obligations.
Senior Financial Officer the chief financial officer, treasurer or controller of
Parent.
Senior Officer the chairman of the board of directors, the president, the chief
financial officer, vice president or treasurer of, or in-house legal counsel to, an Obligor.
Senior Secured Debt any Funded Debt that is pari passu with the Obligations in right
of payment and secured by a Lien on Property of any or all of Obligors.
Senior Secured Leverage Ratio means, on any date of determination, the ratio of (a)
the amount of Senior Secured Debt on such date to (b) EBITDA for the twelve-month period ending on
such date.
Settlement Date as defined in Section 4.1.3(i).
Settlement Report a report delivered by Agent to Lenders summarizing the amount of
the outstanding Revolver Loans as of the Settlement Date and the calculation of the Borrowing Base
as of such Settlement Date.
Software shall have the meaning given to the term software in the UCC.
Solvent as to any Person, such Person (i) owns Property whose fair saleable value is
greater than the amount required to pay all of such Persons debts (including identified contingent
liabilities), (ii) owns Property whose present fair salable value (as defined below) is greater
than the probable total liabilities (including identified contingent liabilities), of such Person
as they become absolute and matured, (iii) is able to pay all of its debts as such debts mature,
(iv) has capital that is not unreasonably small for its business and is sufficient to carry on its
business and transactions and all business and transactions in which it is about to engage, (v) is
not insolvent within the meaning of Section 101(32) of the Bankruptcy Code, and (vi) has not
incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or
otherwise) under any of the Loan Documents, or made any conveyance pursuant to or in connection
therewith, with actual intent to hinder, delay or defraud either present or future creditors of
such Person or any of its Subsidiaries. As used herein, the term fair saleable value of a
Persons assets means the amount that may be realized within a reasonable time, either through
collection or sale of such assets at the regular market value, based upon the amount that could be
obtained for such assets within such period by a capable and diligent seller from an interested
buyer who is willing (but is under no compulsion) to purchase under ordinary selling conditions.
Statutory Reserves on any date, the percentage (expressed as a decimal) established
by the Board of Governors which is the then stated maximum rate for all reserves (including all
basic, emergency, supplemental or other marginal reserve requirements and taking into account any
transitional adjustments or other scheduled in reserve requirements) applicable to any member bank
of the Federal Reserve System in respect to Eurocurrency Liabilities (or any successor category of
liabilities under Regulation D). Such reserve percentage shall include those imposed pursuant to
said Regulation D. The Statutory Reserve shall be adjusted automatically on and as of the
effective date of any change in such percentage.
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Stemco Holdings as defined in the preamble to this Agreement.
Stemco LP (DE) Stemco Delaware LP, a former Delaware limited partnership.
Stemco LP (TX) as defined in the preamble to this Agreement.
Stemco Pledge Agreement the Amended and Restated Pledge Agreement dated as of
January 1, 2010, executed by Coltec in favor of Garlock Sealing (as successor by merger to Stemco
LP (DE)), pursuant to which Coltec grants Garlock Sealing a Lien in the equity interests Coltec
owns of both Stemco Holdings and Stemco LP (TX).
Stemco Subordinated Note the amended and restated subordinated promissory note dated
as of January 1, 2010, made by Stemco LP (TX) and payable to the order of Garlock Sealing (as
successor by merger to Stemco LP (DE)) in the original principal amount of $153,865,000.
Stemco Subordination Agreement the Amended and Restated Subordination Agreement
dated as of April 26, 2006, between Stemco LP (DE) and Agent, subordinating the Debt evidenced by
the Stemco Subordinated Note and the Cole/Stemco Subordinated Guaranty to the Obligations and the
Lien granted to Stemco LP (DE) pursuant to the Stemco Pledge Agreement to Agents Liens.
Subordinated Debt any (i) Debt evidenced by the Coltec Subordinated Note that is at
all times subject to the Garlock Sealing Subordination Agreement, (ii) Debt evidenced by the Stemco
Subordinated Note that is at all times subject to the Stemco Subordination Agreement, (iii) Debt
that is at all times subject to the Intercompany Subordination Agreement, and (iv) other Debt
incurred by an Obligor that is expressly subordinated and made junior in right of payment to the
Full Payment of the Obligations and, to the extent that such Debt is incurred on or after the
Closing Date, such Debt is payable on terms and conditions (including terms relating to interest,
fees, repayment and subordination) that are reasonably satisfactory to Agent.
Subordination Agreement the Garlock Sealing Subordination Agreement, Stemco
Subordination Agreement, Intercompany Subordination Agreement, and any other subordination
agreement executed and delivered after the Closing Date on terms and conditions acceptable to
Agent.
Subsidiary Guarantor and Subsidiary Guarantors as defined in the preamble to
this Agreement.
Subsidiary any Person in which more than 50% of its outstanding Voting Securities or
more than 50% of all Equity Interests is owned directly or indirectly by Parent, by one or more
other Subsidiaries of Parent or by Parent and one or more other Subsidiaries. Notwithstanding
anything herein to the contrary, none of Garlock Sealing, Garrison or Anchor, nor any subsidiary of
any of Garlock Sealing, Garrison, or Anchor, shall be deemed to be a Subsidiary.
Supporting Obligation shall have the meaning given to the term supporting
obligation in the UCC.
Swingline Loan as defined in Section 4.1.3(ii).
Tax Matters Agreement that certain Tax Matters Agreement dated as of May 31, 2002 by
and between Goodrich Corporation, a New York corporation, and Parent, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time with the prior written
consent of Agent.
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Taxes any present or future taxes, levies, imposts, duties, fees, assessments,
deductions, withholdings or other charges of whatever nature, including income, receipts, excise,
property, sales, use, transfer, license, intangible, stamp, recording, payroll, withholding, social
security and franchise taxes now or hereafter imposed or levied by the United States or any other
Governmental Authority and all interest, penalties, additions to tax and similar liabilities with
respect thereto.
Term as defined in Section 6.1.
Trademark Security Agreement the Second Amended and Restated Trademark Security
Agreement dated on or about the date of this Agreement, by Borrowers in favor of Agent and by
which Borrowers shall grant or re-grant, as the case may be, to Agent, for the benefit of Secured
Parties, as security for the Obligations, a security interest in all of Borrowers right, title and
interest in and to all of their trademarks.
Transferee as defined in Section 14.3.3.
Type any type of a Loan determined with respect to the interest option applicable
thereto, which shall be either a LIBOR Loan or a Base Rate Loan.
UCC the Uniform Commercial Code (or any successor statute) as adopted and in force
in the State of North Carolina or, when the laws of any other state govern the method or manner of
the perfection or enforcement of any security interest in any of the Collateral, the Uniform
Commercial Code (or any successor statute) of such state.
Undrawn Amount on any date with respect to a particular Letter of Credit, the total
amount then available to be drawn under such Letter of Credit in Dollars.
Upstream Payment a payment or distribution of cash or other Property by a Subsidiary
of a Borrower to such Borrower or to another Subsidiary of such Borrower that controls such initial
Subsidiary, whether in repayment of Debt owed by such Subsidiary to such Borrower or other
Subsidiary, as a dividend or distribution on account of such Borrowers or other Subsidiarys
ownership of Equity Interests or otherwise.
USA PATRIOT Act the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Value with reference to the value of Inventory, value reasonably determined by Agent
in good faith on the basis of the lower of cost or market value of such Eligible Inventory, with
the cost thereof calculated on a first-in, first-out basis in accordance with GAAP.
Voting Securities Equity Interests of any class or classes of a corporation or other
entity the holders of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors or individuals performing similar functions.
Wholly Owned Subsidiary with respect to any Person, any Subsidiary of such Person
all of the Equity Interests of which (except directors qualifying shares) are, directly or
indirectly, owned and controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more of such Subsidiaries.
1.2. Accounting Terms. Unless otherwise specified herein, all terms of an accounting
character used in this Agreement shall be interpreted, all accounting determinations under this
Agreement
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shall be made, and all financial statements required to be delivered under this Agreement
shall be prepared in accordance with GAAP, applied on a basis consistent with the most recent
audited Consolidated financial statements of Borrowers and their Subsidiaries heretofore delivered
to Agent and Lenders and using the same method for inventory valuation as used in such audited
financial statements, except for any change required by GAAP; provided, however,
that for purposes of determining Borrowers compliance with financial covenants contained in
Section 10.3, all accounting terms shall be interpreted and all accounting determinations shall be
made in accordance with GAAP as in effect on the date of this Agreement and applied on a basis
consistent with the application used in the financial statements referred to in Section 9.1.9.
1.3. Other Terms. All other terms contained in this Agreement shall have, when the context
so indicates, the meanings provided for by the UCC to the extent the same are used or defined
therein.
1.4. Certain Matters of Construction. The terms herein, hereof and hereunder and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, the word from
means from and including and the words to and until each means to but excluding. The
section titles, table of contents and list of exhibits appear as a matter of convenience only and
shall not affect the interpretation of this Agreement. All references to statutes shall include
all related rules and implementing regulations and any amendments of same and any successor
statutes, rules and regulations; to any agreement, instrument or other documents (including any of
the Loan Documents) shall include any and all amendments, modifications and supplements thereto and
any and all restatements, extensions or renewals thereof to the extent such amendments,
modifications, supplements, restatements, extensions or renewals of any such documents are
permitted by the terms thereof; to any Person (including Agent, an Obligor, a Lender or BofA) shall
mean and include the successors and permitted assigns of such Person; to including and include
shall be understood to mean including, without limitation (and, for purposes of each Loan
Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit a
general statement, which is followed by or referable to an enumeration of specific matters to
matters similar to the matters specifically mentioned); to the time of day shall mean the time of
day on the day in question in Atlanta, Georgia, unless otherwise expressly provided in this
Agreement; or to the discretion of Agent or a Lender shall mean the sole and absolute discretion
of such Person. A Default or an Event of Default shall be deemed to exist at all times during the
period commencing on the date that such Default or Event of Default occurs to the date on which
such Default or Event of Default is waived in writing by Agent (acting with the consent or at the
direction of the Lenders or the Required Lenders, as applicable) pursuant to this Agreement or, in
the case of a Default, is cured within any period of cure expressly provided in this Agreement;
and an Event of Default shall continue or be continuing until such Event of Default has been
waived in writing by Agent (acting with the consent or at the direction of the Lenders or the
Required Lenders, as applicable). All calculations of Value shall be in Dollars, all Loans shall
be funded in Dollars and all Obligations shall be repaid in Dollars (except as otherwise provided
in the definition of LC Obligations). In the event that any Letter of Credit is issued hereunder
in a foreign currency, for purposes of calculating the amount of the Aggregate Revolver
Outstandings, the LC Obligations and the Undrawn Amount as of any date of determination the foreign
currency amount of such Letter of Credit shall be converted to Dollars by Agent using such exchange
rates as Agent reasonably deems appropriate under the circumstances at such time. Whenever the
phrase to the best of Obligors knowledge or words of similar import relating to the knowledge or
the awareness of an Obligor are used in this Agreement or other Loan Documents, such phrase shall
mean and refer to the actual knowledge of a Senior Officer of Parent.
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SECTION 2. CREDIT FACILITIES
Subject to the terms and conditions of, and in reliance upon the representations and
warranties made in, this Agreement and the other Loan Documents, Lenders severally agree, to the
extent and in the manner hereinafter set forth, to make their respective shares of the Commitments
available to Borrowers as set forth hereinbelow:
2.1. Revolver Commitments.
2.1.1. Revolver Loans. Each Lender agrees, severally to the extent of its Revolver
Commitment and not jointly with the other Lenders, upon the terms and subject to the conditions set
forth herein, to make Revolver Loans to Borrowers on any Business Day during the period from the
Closing Date through the Business Day before the last day of the Term, not to exceed in aggregate
principal amount outstanding at any time such Lenders Revolver Commitment at such time, which
Revolver Loans may be repaid and reborrowed in accordance with the provisions of this Agreement;
provided, however, that Lenders shall have no obligation to Borrowers whatsoever to
honor any request for a Revolver Loan on or after the Commitment Termination Date or any request
for a Revolver Loan that would exceed Availability. Each Borrowing of Revolver Loans shall be
funded by Lenders on a Pro Rata basis in accordance with their respective Revolver Commitments
(except for BofA with respect to Swingline Loans). The Revolver Loans shall bear interest as set
forth in Section 3.1. Each Revolver Loan shall, at the option of Borrowers, be made or continued
as, or converted into, part of one or more Borrowings that, unless specifically provided herein,
shall consist entirely of Base Rate Loans or LIBOR Loans.
2.1.2. Out-of-Formula Loans. If the unpaid balance of Revolver Loans allocated to Borrowers
at any time should exceed Availability at such time (in such case, an Out-of-Formula
Condition), such Revolver Loans shall nevertheless constitute Obligations that are secured by
the Collateral and entitled to all of the benefits of the Loan Documents. In the event that
Lenders are willing in their discretion to make Out-of-Formula Loans or are required to do so by
Section 13.9.5, such Out-of-Formula Loans shall be due and payable as provided in Section
5.2.1(iii) and shall bear interest as provided in Section 3.1.5.
2.1.3. Use of Proceeds. The proceeds of the Revolver Loans shall be used by Borrowers solely
for one or more of the following purposes: (i) to pay the fees and transaction expenses associated
with the closing of the transactions described herein; (ii) to pay any of the Obligations in
accordance with this Agreement; and (iii) to make expenditures for other lawful corporate purposes
of Borrowers (including, without limitation, Permitted Acquisitions) to the extent such
expenditures are not prohibited by this Agreement or Applicable Law. In no event may any Revolver
Loan proceeds be used by any Borrower (x) to purchase or to carry, or to reduce, retire or
refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose that
violates the provisions of Regulations T, U or X of the Board of Governors, or (y) to fund any
operations or finance any investments or activities in, or to make payments to, a Blocked Person.
2.1.4. Protective Advances. Agent shall be authorized, in its discretion, at any time or
times that a Default or Event of Default exists or any of the conditions precedent set forth in
Section 11 have not been satisfied, to make Revolver Loans that are Base Rate Loans in an aggregate
amount outstanding at any time not to exceed $8,000,000, but only to the extent that Agent, in the
exercise of its Credit Judgment, deems the funding of such Loans (herein called Protective
Advances) to be necessary or desirable (i) to preserve or protect the Collateral or any
portion thereof, (ii) to enhance the likelihood, or increase the amount, of repayment of the
Obligations or (iii) to pay any other amount then due and owing by Obligors pursuant to the terms
of this Agreement, including costs, fees and expenses, all of which Protective Advances shall be
deemed part of the Obligations and secured by the Collateral, and
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shall be treated for all purposes of this Agreement (including Sections 5.5.1 and 15.4) as
advances for the repayment to Agent and Lenders of Extraordinary Expenses; provided,
however, that (a) no Protective Advance shall be made under clause (i) or
(ii) above unless requested by Borrower Representative, and (b) the Required Lenders may at
any time revoke Agents authorization to make Protective Advances by written notice to Agent, which
shall become effective prospectively upon and after Agents actual receipt thereof. Absent such
revocation, Agents determination that the making of a Protective Advance is required for any such
purposes shall be conclusive. Each Lender shall participate in each Protective Advance in an
amount equal to its Pro Rata share of the Revolver Commitments. Notwithstanding the foregoing, the
maximum amount of Protective Advances outstanding at any time, when added to the aggregate of
Revolver Loans and LC Obligations outstanding at such time, shall not exceed the total of the
Revolver Commitments. Nothing in this Section 2.1.4 shall be construed to limit in any way the
amount of Extraordinary Expenses that may be incurred by Agent and that Borrowers shall be
obligated to reimburse to Agent as provided in the Loan Documents.
2.2. Increase in Commitments.
2.2.1. Commitment Increases. So long as no Default or Event of Default has occurred and is
continuing, Borrowers may request that the Commitments be increased by up to $50,000,000 and, upon
such request, Borrowers (or upon the request of Borrowers, Agent) may solicit additional financial
institutions to become Lenders for purposes of this Agreement, or to encourage any Lender to
increase its Commitment; provided, that (i) each Lender which is a party to this Agreement
prior to such increase shall have the first option, and may elect to fund its Pro Rata share of the
amount of the increase in the Commitments (or any such greater amount in the event that one or more
Lenders does not elect to fund its respective Pro Rata share of the amount of the increase in the
Commitments), thereby increasing its Commitment hereunder, but no Lender shall have the obligation
to do so, (ii) in the event that it becomes necessary to include a new financial institution to
fund the amount of the increase in the Commitments, each such financial institution shall be an
Eligible Assignee that is reasonably acceptable to Agent and Parent and each such financial
institution shall become a Lender hereunder and agree to become party to, and shall assume and
agree to be bound by, this Agreement, subject to all terms and conditions hereof; (iii) in the
event that it becomes necessary to include a new financial institution to fund the amount of the
increase in the Commitments, upon the request of Borrowers, Agent shall use its commercially
reasonable efforts to solicit such additional financial institution or institutions to become
Lenders; (iv) no Lender shall have an obligation to the Borrowers, Agent or any other Lender to
increase its Commitment or its Pro Rata share of the Commitments; (v) Agent shall have successfully
syndicated any increase in the Commitments effected pursuant to this Section 2.2.1; and (vi) in no
event shall the addition of any Lender or Lenders or the increase in the Revolver Commitment of any
Lender under this Section 2.2.1 increase the Commitments (A) in any single instance by less than
$5,000,000 or (B) to an aggregate amount greater than $175,000,000. Upon the addition of any
Lender, or the increase in the Commitment of any Lender, Commitments set forth on the signature
pages to this Agreement shall be amended by Agent and the Borrowers to reflect such addition or
such increase. Any new financial institution added as a new Lender pursuant to this Section 2.2.1
shall be required to have a Commitment of not less than $10,000,000 (unless otherwise agreed by
Agent and Borrower Representative in their discretion).
2.2.2. Effectiveness of Commitment Increases. If any requested increase in the Commitments
is agreed to in accordance with Section 2.2.1 above, Agent and Borrowers shall determine the
effective date of such increase (the Increase Effective Date). Agent, with the consent
and approval of Borrowers, shall promptly confirm in writing to the Lenders the final allocation of
such increase and the Increase Effective Date, and each new Lender, and each existing Lender that
has increased its Revolver Commitment, shall purchase Revolver Loans and participations in the
Undrawn Amount of outstanding Letters of Credit from each other Lender in an amount such that,
after such purchase or purchases, the amount of outstanding Revolver Loans and participations in
outstanding Letters of Credit
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from each Lender shall equal such Lenders Pro Rata share of the Commitments, as modified to
give effect to such increase, multiplied by the aggregate amount of outstanding Revolver Loans and
Letters of Credit from all Lenders. As a condition precedent to the effectiveness of such
increase, Borrowers shall deliver to Agent a certificate dated as of the Increase Effective Date
(in sufficient copies for each Lender) signed by a Senior Officer of Parent, including a Compliance
Certificate demonstrating compliance with the terms of this Agreement and certification that,
before and after giving effect to such increase, the representations and warranties contained in
Section 9 hereof are true and correct in all material respects on and as of the Increase Effective
Date (except to the extent any such representation or warranty is stated to relate solely to an
earlier date) and no Default or Event of Default has occurred and is continuing. Borrowers shall
prepay any Revolver Loans which are LIBOR Loans and which are outstanding on the Increase Effective
Date (and pay any and all costs and other required payments in connection with such prepayment
pursuant to Sections 3.7 and 3.8 hereof) to the extent necessary to keep the outstanding Revolver
Loans and Letters of Credit ratable with any revised Pro Rata shares of the Commitments arising
from any nonratable increase in the Commitments.
2.3. LC Facility.
2.3.1. Issuance of Letters of Credit. Subject to all of the terms and conditions hereof,
Issuing Bank agrees to establish the LC Facility pursuant to which, during the period from the date
hereof to (but excluding) the 30th day prior to the last day of the Term, Issuing Bank shall issue
one or more Letters of Credit on Borrower Representatives request therefor from time to time,
subject to the following terms and conditions:
(i) Issuing Bank shall have no obligation to issue any Letter of Credit unless (x) at
least 3 Business Days prior to the date of issuance of a Letter of Credit, Issuing Bank
receives an LC Request, LC Application and such other instruments and agreements as Issuing
Bank may customarily require for the issuance of a letter of credit of equivalent type and
amount as the requested Letter of Credit, (y) each of the LC Conditions is satisfied on the
date of Issuing Banks receipt of the LC Request and at the time of the requested issuance
of a Letter of Credit, and (z) if a Defaulting Lender exists, such Lender or Borrowers have
entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any Fronting
Exposure associated with the Defaulting Lender. If Issuing Bank shall have received written
notice from a Lender on or before the Business Day immediately prior to the date of Issuing
Banks issuance of a Letter of Credit that one or more of the conditions set forth in
Section 11 has not been satisfied, Issuing Bank shall have no obligation to issue the
requested Letter of Credit or any other Letter of Credit until such notice is withdrawn in
writing by that Lender or until the Required Lenders shall have effectively waived such
condition in accordance with this Agreement. In no event shall Issuing Bank be deemed to
have notice or knowledge of any existence of any Default or Event of Default or the failure
of any conditions in Section 11 to be satisfied prior to its receipt of such notice from a
Lender.
(ii) Letters of Credit may be requested by a Borrower only if they are to be used (a)
to support obligations of such Borrower or one of its Subsidiaries (including with respect
to discontinued operations), on a standby basis, (b) as documentary Letters of Credit, or
(c) for such other purposes as Agent may approve from time to time in writing.
(iii) Borrowers shall comply with all of the terms and conditions imposed on Borrowers
by Issuing Bank that are contained in any LC Application or in any other agreement executed
by or binding upon any Borrower that is customarily or reasonably required by Issuing Bank
in connection with the issuance of any Letter of Credit. If Issuing Bank shall honor any
request for payment under a Letter of Credit, Borrowers shall be jointly and severally
obligated to
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pay to Issuing Bank, in Dollars on the same day as the date on which payment was made
by Issuing Bank (the Reimbursement Date), an amount equal to the amount paid by
Issuing Bank under such Letter of Credit (or, if payment thereunder was made by Issuing Bank
in a currency other than Dollars, an amount equal to the Dollar equivalent of such currency,
as determined by Issuing Bank, as of the time of Issuing Banks payment under such Letter of
Credit, in each case), together with interest from and after the Reimbursement Date until
Full Payment is made by Borrowers at the Default Rate for Revolver Loans constituting Base
Rate Loans. Until Issuing Bank has received payment from Borrowers in accordance with the
foregoing provisions of this clause (iii), Issuing Bank, in addition to all of its other
rights and remedies under this Agreement and any LC Application, shall be fully subrogated
to the rights and remedies of each beneficiary under such Letter of Credit whose claims
against Borrowers have been discharged with the proceeds of such Letter of Credit. Whether
or not a Borrower submits any Notice of Borrowing to Agent, Borrowers shall be deemed to
have requested from Lenders a Borrowing of Base Rate Loans in an amount necessary to pay to
Issuing Bank all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees
to fund its Pro Rata share of such Borrowing whether or not any Default or Event of Default
has occurred or exists, the Commitments have been terminated, the funding of the Borrowing
would result in (or increase the amount of) any Out-of-Formula Condition, or any of the
conditions set forth in Section 11 are not satisfied.
(iv) As among Borrowers, Lenders, Agent and Issuing Bank, Borrowers assume all risks of
the acts, omissions or misuses of any Letter of Credit by the beneficiary thereof. The
obligation of Borrowers to reimburse Issuing Bank for any payment made by Issuing Bank under
a Letter of Credit shall be absolute, unconditional, irrevocable and joint and several and
shall be paid without regard to any lack of validity or enforceability of any Letter of
Credit or the existence of any claim, setoff, defense or other right which Borrowers may
have at any time against a beneficiary of any Letter of Credit. In connection with the
issuance of any documentary Letter of Credit, none of Agent, Issuing Bank or any Lender
shall be responsible for the existence, character, quality, quantity, condition, packing,
value or delivery of any Goods purported to be represented by any documents; any differences
or variation in the character, quality, quantity, condition, packing, value or delivery of
any goods from that expressed in the documents; the form, validity, sufficiency, accuracy,
genuineness or legal effect of any documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid, insufficient,
fraudulent or forged; the time, place, manner or order in which shipment of Goods is made;
partial or incomplete shipment of, or failure or omission to ship, any or all of the goods
referred to in a documentary Letter of Credit or documents applicable thereto; any deviation
from instructions, delay, default or fraud by the shipper and/or any Person in connection
with any goods or any shipping or delivery thereof; any breach of contract between the
shipper or vendors and a Borrower; errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher, unless such errors, omissions, interruptions or delays are
the result of the gross negligence or willful misconduct of Issuing Bank; errors in
interpretation of technical terms; the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or any consequences
arising from causes beyond the control of Issuing Bank, including any act or omission
(whether rightful or wrongful) of any present or future Governmental Authority. The rights,
remedies, powers and privileges of Issuing Bank under this Agreement with respect to Letters
of Credit shall be in addition to, and cumulative with, all rights, remedies, powers and
privileges of Issuing Bank under any of the LC Documents. Nothing herein shall be deemed to
release Issuing Bank from any liability or obligation that it may have in respect to any
Letter of Credit arising out of and directly resulting from its own gross negligence or
willful misconduct.
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(v) No Letter of Credit shall be extended or amended in any respect that is not solely
ministerial, unless all of the LC Conditions are met as though a new Letter of Credit were
being requested and issued. With respect to any Letter of Credit that contains any
evergreen or automatic renewal provision, each Lender shall be deemed to have consented to
any such extension or renewal, unless any such Lender shall have provided to Agent written
notice that it declines to consent to any such extension or renewal at least 30 days prior
to the date on which Issuing Bank is entitled to decline to extend or renew the Letter of
Credit. If all of the LC Conditions are met and no Default or Event of Default exists, each
Lender shall be deemed to have consented to any such extension or renewal.
(vi) Unless otherwise provided in any of the LC Documents, each LC Application and each
standby Letter of Credit shall be subject to the then current Uniform Customs and Practice
for Documentary Credits and any amendments or revisions thereto.
2.3.2. Participations.
(i) Immediately upon the issuance of any Letter of Credit, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from Issuing Bank, without
recourse or warranty, an undivided interest and participation equal to the Pro Rata share of
such Lender (a Participating Lender) in all LC Obligations arising in connection
with such Letter of Credit, but in no event greater than an amount which, when added to such
Lenders Pro Rata share of all Revolver Loans and LC Obligations then outstanding, exceeds
such Lenders Revolver Commitment.
(ii) If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not
repay or cause to be repaid the amount of such payment on the Reimbursement Date, Issuing
Bank shall promptly notify Agent, which shall promptly notify each Participating Lender, of
such payment and each Participating Lender shall promptly (and in any event within 1
Business Day after its receipt of notice from Agent) and unconditionally pay to Agent, for
the account of Issuing Bank, in immediately available funds, the amount of such
Participating Lenders Pro Rata share of such payment, and Agent shall promptly pay such
amounts to Issuing Bank. If a Participating Lender does not make its Pro Rata share of the
amount of such payment available to Agent on a timely basis as herein provided, such
Participating Lender agrees to pay to Agent for the account of Issuing Bank, forthwith on
demand, such amount together with interest thereon at the Federal Funds Rate until paid.
The failure of any Participating Lender to make available to Agent for the account of
Issuing Bank such Participating Lenders Pro Rata share of the LC Obligations shall not
relieve any other Participating Lender of its obligation hereunder to make available to
Agent its Pro Rata share of the LC Obligations. No Participating Lender shall be
responsible for the failure of any other Participating Lender to make available to Agent its
Pro Rata share of the LC Obligations on the date such payment is to be made.
(iii) Whenever Issuing Bank receives a payment on account of the LC Obligations,
including any interest thereon, as to which Agent has previously received payments from any
Participating Lender for the account of Issuing Bank, Issuing Bank shall promptly pay to
each Participating Lender which has funded its participating interest therein, in
immediately available funds, an amount equal to such Participating Lenders Pro Rata share
thereof.
(iv) The obligation of each Participating Lender to make payments to Agent for the
account of Issuing Bank in connection with Issuing Banks payment under a Letter of Credit
shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff,
qualification or exception whatsoever, and shall be made in accordance with the terms and
conditions of this
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Agreement under all circumstances and irrespective of whether or not Borrowers may
assert or have any claim for any lack of validity or unenforceability of this Agreement or
any of the other Loan Documents; any Borrowers dispute as to its liability for any of the
LC Obligations; the existence of any Default or Event of Default; any draft, certificate or
other document presented under a Letter of Credit having been determined to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; the existence of any setoff or defense any Obligor may have with
respect to any of the Obligations; or the termination of the Commitments.
(v) Neither Issuing Bank nor any of its officers, directors, employees or agents shall
be liable to any Participating Lender for any action taken or omitted to be taken under or
in connection with any of the LC Documents except as a result of actual gross negligence or
willful misconduct on the part of Issuing Bank. Issuing Bank does not assume any
responsibility for any failure or delay in performance or breach by a Borrower or any other
Person of its obligations under any of the LC Documents. Issuing Bank does not make to
Participating Lenders any express or implied warranty, representation or guaranty with
respect to the Collateral, the LC Documents, or any Obligor. Issuing Bank shall not be
responsible to any Participating Lender for any recitals, statements, information,
representations or warranties contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of or any of the LC Documents; the validity, genuineness,
enforceability, collectibility, value or sufficiency of any of the Collateral or the
perfection of any Lien therein; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor or any Account Debtor.
In connection with its administration of and enforcement of rights or remedies under any of
the LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in
acting upon, any certification, notice or other communication in whatever form believed by
Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made
by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and
other experts and to advise it concerning its rights, powers and privileges under the LC
Documents and shall be entitled to act upon, and shall be fully protected in any action
taken in good faith reliance upon, any advice given by such experts. Issuing Bank may
employ agents and attorneys-in-fact in connection with any matter relating to the LC
Documents and shall not be liable for the negligence, default or misconduct of any such
agents or attorneys-in-fact selected by Issuing Bank with reasonable care. Issuing Bank
shall not have any liability to any Participating Lender by reason of Issuing Banks
refraining to take any action under any of the LC Documents without having first received
written instructions from the Required Lenders to take such action.
(vi) Upon the request of any Participating Lender, Issuing Bank shall furnish to such
Participating Lender copies (to the extent then available to Issuing Bank) of each
outstanding Letter of Credit and related LC Documents as may be in the possession of Issuing
Bank and reasonably requested from time to time by such Participating Lender.
2.3.3. Cash Collateral Account. If any LC Obligations, whether or not then due or payable,
shall for any reason be outstanding (i) at any time that an Event of Default exists, (ii) on or at
any time after the Commitment Termination Date, or (iii) on the day that is 30 days prior to the
last day of the Term (except to the extent such LC Obligations relate to one or more Extended Term
Letters of Credit), then Borrowers shall, on Issuing Banks or Agents request, forthwith pay to
Issuing Bank the amount of any LC Obligations that are then due and payable and Cash Collateralize
all outstanding Letters of Credit that are not then due and payable. If notwithstanding the
occurrence of one or more of the events described in clauses (i), (ii) and (iii) in the immediately
preceding sentence Borrowers fail to Cash Collateralize any outstanding Letters of Credit that are
not then due and payable on the first Business Day following Agents or Issuing Banks demand
therefor, Lenders may (and shall upon
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direction of Agent) advance such amount as Revolver Loans (whether or not the Commitment
Termination Date has occurred or an Out-of-Formula Condition is created thereby but not if such
advance would cause a Lenders Pro Rata Share of all Loans and LC Obligations to exceed its
Commitment (as the same was in effect prior to the Commitment Termination Date if such advance is
made after the Commitment Termination Date)), funded to Agent for the account of Borrowers. Such
cash (together with any interest accrued thereon) shall be held by Agent in the Cash Collateral
Account and shall be invested by Agent, within a reasonable amount of time following Borrowers
request, in Cash Equivalents. Each Borrower hereby pledges to Agent and grants to Agent a security
interest in, for the benefit of Agent in such capacity and for the Pro Rata benefit of Lenders, all
Cash Collateral held in the Cash Collateral Account from time to time and all proceeds thereof, as
security for the payment of all Obligations (including LC Obligations), whether or not then due or
payable. From time to time after cash is deposited in the Cash Collateral Account, Agent may apply
Cash Collateral then held in the Cash Collateral Account to the payment of any amounts, in such
order as Agent may elect, as shall be or shall become due and payable by Borrowers to Issuing Bank,
Agent or any Lender with respect to the LC Obligations; provided, that if at any time the LC
Obligations are reduced without the application of Cash Collateral to such LC Obligations, absent
an Event of Default, the portion of Cash Collateral related to such LC Obligations so reduced shall
be promptly paid by Issuing Bank to Borrowers. Neither Borrowers nor any other Person claiming by,
through or under or on behalf of Borrowers shall have any right to withdraw any of the Cash
Collateral held in the Cash Collateral Account, including any accrued interest, provided that upon
termination or expiration of all Letters of Credit and the payment and satisfaction of all of the
LC Obligations, any Cash Collateral remaining in the Cash Collateral Account shall be returned to
Borrowers unless an Event of Default then exists (in which event Agent may apply such Cash
Collateral to the payment of any other Obligations outstanding and, to the extent so applied, such
Cash Collateral shall be applied in accordance with the provisions of Section 5.5, with any surplus
to be turned over to Borrowers). The obligations of Borrowers under this Section 2.3.3 shall
survive Full Payment of the Obligations and termination of the Commitments, including any
obligations with respect to Extended Term Letters of Credit that remain outstanding beyond the
Commitment Termination Date. Notwithstanding the foregoing, Borrowers shall, on demand by Issuing
Bank or Agent from time to time, Cash Collateralize the Fronting Exposure of any Defaulting Lender.
2.3.4. Indemnifications.
(i) In addition to and without limiting any other indemnity which Borrowers may have to
any Indemnitees under any of the Loan Documents, each Borrower hereby agrees to indemnify
and defend each of the Indemnitees and to hold each of the Indemnitees harmless from and
against any and all Claims which any Indemnitee may suffer, incur or be subject to as a
consequence, directly or indirectly, of (a) the issuance of, payment or failure to pay or
any performance or failure to perform under any Letter of Credit, (b) any suit,
investigation or proceeding as to which Agent or any Lender is or may become a party to as a
consequence, directly or indirectly, of the issuance of any Letter of Credit or the payment
or failure to pay thereunder or (c) Issuing Bank following any instructions of a Borrower
with respect to any Letter of Credit or any Document received by Issuing Bank with reference
to any Letter of Credit.
(ii) Each Participating Lender agrees to indemnify and defend each of the Issuing Bank
Indemnitees (to the extent the Issuing Bank Indemnitees are not reimbursed by Borrowers or
any other Obligor, but without limiting the indemnification obligations of Borrowers under
this Agreement), to the extent of such Lenders Pro Rata share of the Revolver Commitments,
from and against any and all Claims which may be imposed on, incurred by or asserted against
any of the Issuing Bank Indemnitees in any way related to or arising out of Issuing Banks
administration or enforcement of rights or remedies under any of the LC Documents or any of
the transactions
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contemplated thereby (including costs and expenses which Borrowers are obligated to pay
under Section 15.2).
2.3.5. Existing Letters of Credit. As of the Closing Date, there exist certain
letters of credit issued by BofA for the account of one or more Borrowers, as more fully described
on Schedule 2.3.5 hereto (collectively, the Existing Letters of Credit). The parties
hereto acknowledge and agree that, concurrently with the making of the initial Loans hereunder,
such Existing Letters of Credit shall constitute Letters of Credit hereunder for all purposes as
fully as if such Existing Letters of Credit had been issued as Letters of Credit hereunder.
2.4. Bank Products. Borrowers may request one or more Lenders to provide, or to arrange
for one or more of such Lenders Affiliates to provide, Bank Products, but no Lender shall have any
obligation whatsoever to provide, or to arrange for the provision of, any Bank Products. If Bank
Products are provided by an Affiliate of any Lender, Borrowers agree to indemnify and hold Agent
and Lenders harmless from and against any and all Claims at any time incurred by Agent or any
Lender that arise from any indemnity given by Agent or such Lender to such Affiliates that relate
to such Bank Products; provided, however, nothing contained herein is intended to
limit Borrowers rights, with respect to Agent, any Lender or any Affiliate thereof, if any, which
arise as a result of the execution of documents by and between Borrowers (or any of them) and
Agent, any Lender or any of their Affiliates which relate to Bank Products. Borrowers acknowledge
that obtaining Bank Products from any Lender or its Affiliates is in the discretion of such Lender
or its Affiliates and is subject to all rules and regulations of such Lender or its Affiliates that
are applicable to such Bank Products.
SECTION 3. INTEREST, FEES AND CHARGES
3.1. Interest.
3.1.1. Rates of Interest. Borrowers agree to pay interest in respect of all unpaid principal
amounts of the Revolver Loans from the respective dates such principal amounts are advanced until
paid (whether at stated maturity, on acceleration or otherwise) at a rate per annum equal to the
applicable rate indicated below:
(i) for Revolver Loans made or outstanding as Base Rate Loans, the Applicable Margin
plus the Base Rate in effect from time to time; or
(ii) for Revolver Loans made or outstanding as LIBOR Loans, the Applicable Margin
plus the relevant Adjusted LIBOR Rate for the applicable Interest Period selected by
Borrowers in conformity with this Agreement.
Upon determining the Adjusted LIBOR Rate for any Interest Period requested by Borrowers, Agent
shall promptly notify Borrowers thereof. Such determination shall, absent manifest error, be
final, conclusive and binding on all parties and for all purposes. The applicable rate of interest
for all Loans (or portions thereof) bearing interest based upon the Base Rate shall be increased or
decreased, as the case may be, by an amount equal to any increase or decrease in the Base Rate,
with such adjustments to be effective as of the opening of business on the day that any such change
in the Base Rate becomes effective. Interest on each Loan shall accrue from and including the date
on which such Loan is made, converted to a Loan of another Type or continued as a LIBOR Loan to
(but excluding) the date of any repayment thereof; provided, however, that, if a
Loan is repaid on the same day made, one days interest shall be paid on such Loan.
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3.1.2. Conversions and Continuations.
(i) Borrowers may on any Business Day, subject to the giving of a proper Notice of
Conversion/Continuation as hereinafter described, elect (A) to continue all or any part of a
LIBOR Loan by selecting a new Interest Period therefor, to commence on the last day of the
immediately preceding Interest Period, or (B) to convert all or any part of a Loan of one
Type into a Loan of another Type; provided, however, during the period that
any Default or Event of Default exists, Agent may (and shall at the direction of the
Required Lenders) declare that no Loan may be made or continued as or converted into a LIBOR
Loan. Any conversion of a LIBOR Loan into a Base Rate Loan shall be made on the last day of
the Interest Period for such LIBOR Loan. Any conversion or continuation made with respect
to less than the entire outstanding balance of the Loans must be allocated among Lenders on
a Pro Rata basis, and the Interest Period for Loans converted into or continued as LIBOR
Loans shall be coterminous for each Lender.
(ii) Whenever Borrowers desire to convert or continue Loans under Section 3.1.2(i),
Borrower Representative shall give Agent notice thereof in form satisfactory to Agent (a
Notice of Conversion/Continuation), at least 1 Business Day before the requested
conversion date, in the case of a conversion into Base Rate Loans, and at least 3 Business
Days before the requested conversion or continuation date, in the case of a conversion into
or continuation of LIBOR Loans. Promptly after receipt of a Notice of
Conversion/Continuation, Agent shall notify each Lender of the proposed conversion or
continuation. Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Loans to be converted or continued, the date
of such conversion or continuation (which shall be a Business Day) and whether the Loans are
being converted into or continued as LIBOR Loans (and, if so, the duration of the Interest
Period to be applicable thereto and, in the absence of any specification by Borrowers of the
Interest Period, an Interest Period of one month will be deemed to be specified) or Base
Rate Loans. If, upon the expiration of any Interest Period in respect of any LIBOR Loans,
Borrowers shall have failed to deliver the Notice of Conversion/Continuation, Borrowers
shall be deemed to have elected to convert such LIBOR Loans to Base Rate Loans.
3.1.3. Interest Periods. In connection with the making or continuation of, or conversion
into, each Borrowing of LIBOR Loans, Borrowers shall select an interest period (each an
Interest Period) to be applicable to such LIBOR Loan, which interest period shall
commence on the date such LIBOR Loan is made and shall end on a numerically corresponding day in
the first, second, third or sixth month thereafter; provided, however, that:
(i) the initial Interest Period for a LIBOR Loan shall commence on the date of such
Borrowing (including the date of any conversion from a Loan of another Type) and each
Interest Period occurring thereafter in respect of such Revolver Loan shall commence on the
date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day, provided that, if any
Interest Period in respect of LIBOR Loans would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period shall expire on
the last Business Day of such calendar month; and
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(iv) no Interest Period shall extend beyond the last day of the Term.
3.1.4. Interest Rate Not Ascertainable. If Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that on any date for
determining the Adjusted LIBOR Rate for any Interest Period, by reason of any changes arising after
the date of this Agreement affecting the London interbank market or any Lenders position in such
market, adequate and fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Adjusted LIBOR Rate, then, and in any such event, Agent
shall forthwith give notice (by telephone promptly confirmed in writing) to Borrowers of such
determination. Until Agent notifies Borrowers that the circumstances giving rise to the suspension
described herein no longer exist, the obligation of Lenders to make LIBOR Loans shall be suspended,
and such affected Loans then outstanding shall, at the end of the then applicable Interest Period
or at such earlier time as may be required by Applicable Law, bear the same interest as Base Rate
Loans.
3.1.5. Default Rate of Interest. Borrowers shall pay interest at a rate per annum equal to
the Default Rate (i) with respect to the principal amount of all of the Obligations (and, to the
extent permitted by Applicable Law, all past due interest) upon the earlier to occur of (x)
Borrower Representatives receipt of notice from Agent of the Required Lenders election to charge
the Default Rate based upon the existence of any Event of Default (which notice Agent shall send at
the direction of the Required Lenders), whether or not acceleration or demand for payment of the
Obligations has been made, or (y) the commencement by or against any Borrower of an Insolvency
Proceeding whether or not Lenders elect to accelerate the maturity or demand payment of any of the
Obligations; and (ii) with respect to the principal amount of any Out-of-Formula Loans upon
Borrower Representatives receipt of notice from Agent of the Required Lenders election to charge
the Default Rate with respect thereto, whether or not demand for payment thereof has been made by
Agent. To the fullest extent permitted by Applicable Law, the Default Rate shall apply and accrue
on any judgment entered with respect to any of the Obligations and to the unpaid principal amount
of the Obligations during any Insolvency Proceeding of a Borrower. Each Borrower acknowledges that
the cost and expense to Agent and each Lender attendant upon the occurrence of an Event of Default
are difficult to ascertain or estimate and that the Default Rate is a fair and reasonable estimate
to compensate Agent and Lenders for such added cost and expense. Interest accrued at the Default
Rate shall be due and payable on demand.
3.2. Fees. In consideration of Lenders establishment of the Commitments in favor of
Borrowers, and Agents agreement to serve as collateral and administrative agent hereunder,
Borrowers jointly and severally agree to pay the following fees:
3.2.1. Closing Fee and Arrangement Fee. Borrowers shall pay to Agent, for the benefit of the
Initial Lenders, a closing fee as set forth in the Fee Letter, which shall be paid concurrently
with the funding of the initial Loans hereunder. In addition, Borrowers shall be jointly and
severally obligated to pay to Agent, for its own account, the arrangement fee described in the Fee
Letter, which shall be paid concurrently with the funding of the initial Loans hereunder.
3.2.2. Unused Line Fee. Borrowers shall be jointly and severally obligated to pay to Agent
for the Pro Rata benefit of Lenders a fee equal to (a) 0.50% per annum of the amount by which the
Average Revolver Loan Balance for any month (or portion thereof that the Commitments are in effect)
is less than the Commitments if such amount is less than an amount equal to 50% of the Commitments,
and (b) 0.375% per annum of the amount by which the Average Revolver Loan Balance for any month (or
portion thereof that the Commitments are in effect) is less than the Commitments if such amount is
greater than or equal to an amount equal to 50% of the Commitments, in each case, such fee to be
paid monthly, in arrears, on the first day of each month; but if the Commitment Termination Date
shall occur
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on a day other than the first day of a month, then any such fee payable for the month in which
termination shall occur shall be paid on the Commitment Termination Date.
3.2.3. LC Facility Fees. Borrowers shall be jointly and severally obligated to pay: (i) to
Agent, for the Pro Rata account of each Lender, for all Letters of Credit, the Applicable Margin in
effect for Revolver Loans that are LIBOR Loans on a per annum basis based on the average amount
available to be drawn under Letters of Credit outstanding and all Letters of Credit that are paid
or expire during the period of measurement, payable monthly, in arrears, on the first calendar day
of the following month; (ii) to Issuing Bank, for its own account, a Letter of Credit fronting fee
of 0.125% per annum based on the average amount available to be drawn under all Letters of Credit
outstanding and all Letters of Credit that are paid or expire during the period of measurement,
payable monthly, in arrears, on the first calendar day of the following month; and (iii) to Issuing
Bank, for its own account, all customary charges associated with the issuance, amending,
negotiating, payment, processing and administration of all Letters of Credit. All Letter of Credit
fees (other than the fronting fee) that are expressed as a percentage shall be increased to a
percentage that is 2% greater than the percentage that would otherwise be applicable to LIBOR Loans
when the Default Rate is in effect.
3.2.4. Audit and Appraisal Fees and Expenses.
(a) Borrowers shall reimburse Agent for all reasonable costs and expenses incurred by Agent
(including standard and actual fees charged by Agents internal appraisal department) in connection
with audits and reviews of any Obligors books and records and such other matters pertaining to any
Obligor or any Collateral as Agent shall deem appropriate, and shall pay to Agent the standard
amount charged by Agent per day ($1,000 per day as of the Closing Date) for each day that an
employee or agent of Agent shall be engaged in an examination or review of any Obligors books and
records, provided, that, unless a Default or Event of Default exists at the time
any audit or review is initiated (in which event there shall be no limit on the number of
examinations and reviews for which Borrowers shall be obligated to reimburse Agent), Borrowers
shall not be obligated to reimburse Agent for the costs, expenses or charges associated with any
audit or review initiated during a Loan Year other than (i) three (3) field examinations during a
Loan Year in which Availability is less than an amount equal to 20% of the Commitments, (ii) two
(2) field examinations during a Loan Year in which Availability is equal to or greater than an
amount equal to 20% of the Commitments but less than an amount equal to 40% of the Commitments and
(iii) one (1) field examination during a Loan Year in which Availability is equal to or greater
than an amount equal to 40% of the Commitments. For the avoidance of doubt, if Availability
decreases below the threshold (e.g., those set forth in subclauses (i), (ii) and (iii) of
this clause (a)) in effect at any time, then a new field examination (for which Borrowers shall be
obligated to reimburse Agent) shall be immediately triggered unless the most recent field
examination then in existence was conducted within the then applicable number of days
(i.e., 120 days for subclause (i) or 180 days for subclause (ii)) since the field
examination preceding the then most current field examination.
(b) Borrowers shall reimburse Agent for all reasonable costs and expenses incurred by Agent
(including standard and actual fees charged by Agents internal appraisal department) in connection
with Orderly Liquidation Value Appraisals, provided, that, unless a Default or
Event of Default exists at the time any Orderly Liquidation Value Appraisals is initiated (in which
event, there shall be no limit on the number of Orderly Liquidation Value Appraisals for which
Borrowers shall be obligated to reimburse Agent), Borrowers shall not be obligated to reimburse
Agent for the costs, expenses or charges associated with any Orderly Liquidation Value Appraisal
initiated during a Loan Year other than (i) two (2) Orderly Liquidation Value Appraisals during a
Loan Year in which Availability is less than an amount equal to 20% of the Commitments, and (ii)
one (1) Orderly Liquidation Value Appraisal during a Loan Year in which Availability is equal to or
greater than an amount equal to 20% of the Commitments. For the avoidance of doubt, if
Availability decreases below
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the threshold (e.g., those set forth in subclauses (i) and (ii) of this clause (b)) in
effect at any time, then an Orderly Liquidation Value Appraisal (for which Borrowers shall be
obligated to reimburse Agent) shall be immediately triggered unless the most recent Orderly
Liquidation Value Appraisals was conducted within the then applicable number of days (i.e.,
180 days for subclause (i) or 365 days for subclause (ii)) since the Orderly Liquidation Value
Appraisal preceding the then most current Orderly Liquidation Value Appraisal.
(c) Nothing contained in this Section 3.2.4 shall be construed to (i) limit or restrict
Agents right to conduct audits as provided in Section 10.1.1 or otherwise obtain appraisals of the
Collateral at the expense of Agent and Lenders, or (ii) impose any obligation or duty upon Agent to
conduct such audits or appraisals.
3.2.5. Agency Fee. In consideration of BofAs syndication of the Commitments and service as
Agent hereunder, Borrowers shall pay to Agent an agency fee as set forth in the Fee Letter, which
fee shall be payable on the Closing Date and on the first day of each Loan Year thereafter (or on
the date of Full Payment of the Obligations upon termination of the Commitments, if on a date other
than an anniversary date).
3.2.6. General Provisions. All fees shall be fully earned by the identified recipient
thereof pursuant to the foregoing provisions of this Agreement on the due date thereof (and, in the
case of Letters of Credit, upon each issuance, renewal or extension of such Letter of Credit) and,
except as otherwise set forth herein or required by Applicable Law, shall not be subject to rebate,
refund or proration. All fees provided for in this Section 3.2 and in the Fee Letter are and shall
be deemed to be compensation for services and are not, and shall not be deemed to be, interest or
any other charge for the use, forbearance or detention of money.
3.3. Computation of Interest and Fees. All fees and other charges provided for in this
Agreement that are calculated as a per annum percentage of any amount and all interest shall be
calculated daily and shall be computed on the actual number of days elapsed over a year of 360
days. For purposes of computing interest and other charges hereunder, each Payment Item and other
form of payment received by Agent shall be deemed applied by Agent and Lenders on account of the
Obligations (subject to final payment of such items) on the first Business Day after the Business
Day on which Agent receives such Payment Item in the applicable Payment Account or, in the case of
Payment Items constituting immediately available funds, on the Business Day on which Agent receives
such Payment Item in the applicable Payment Account. Each determination by Agent of interest and
fees hereunder shall be presumptive evidence of the correctness of such interest and fees.
3.4. Reimbursement Obligations.
3.4.1. Borrowers shall reimburse Agent and Lenders for any Extraordinary Expenses incurred by
Agent or any Lender, on the sooner to occur of Agents demand therefor or Agents receipt of any
proceeds of Collateral in connection with any Enforcement Action (subject to the provisions of
Section 5.5 with respect to the application of any proceeds of Collateral). Borrowers shall also
reimburse Agent for all reasonable out-of-pocket legal, accounting, appraisal, consulting and
other fees and expenses suffered or incurred by Agent in connection with: (i) the negotiation and
preparation of any of the Loan Documents, or any amendment or modification thereto; (ii) the
administration of the Loan Documents and the transactions contemplated thereby; (iii) action taken
to perfect or maintain the perfection or priority of any of Agents Liens with respect to any of
the Collateral; (iv) any inspection of or audits conducted by Agent with respect to any Obligors
books and records or any of the Collateral (subject to the limits set forth in Section 3.2.4); (v)
any effort by Agent to verify or appraise any of the Collateral (subject to the limits set forth
in Section 3.2.4). All amounts chargeable to or reimbursable by
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Borrowers under this Section 3.4 and under Section 3.2.4 shall constitute Obligations that
are secured by all of the Collateral and shall be payable on demand to Agent. Borrowers shall
also reimburse Agent for reasonable out-of-pocket expenses incurred by Agent in its administration
of any of the Collateral to the extent and in the manner provided in Section 8 or in any of the
other Loan Documents. If, for any reason (including inaccurate reporting on any Borrowing Base
Certificate or Compliance Certificate), it is determined that a higher Applicable Margin should
have applied to a period than was actually applied, then the proper margin shall be applied
retroactively and Borrowers shall immediately pay to Agent, for the Pro Rata benefit of Lenders,
an amount equal to the difference between the amount of interest and fees that would have accrued
using the proper margin and the amount actually paid. The foregoing shall be in addition to, and
shall not be construed to limit, any other provision of any of the Loan Documents regarding the
indemnification or reimbursement by Borrowers of Claims suffered or incurred by Agent or any
Lender.
3.4.2. If at any time Agent or (with the prior consent of Agent) any Lender, in each case
with the written consent of an Obligor (such consent to be deemed given if an Obligor is a party
to or acknowledges in writing any agreement giving rise to the Obligation of Agent of such Lender)
shall agree to indemnify any Person against losses or damages that such Person may suffer or incur
in its dealings or transactions with any Obligor, or shall guarantee or otherwise assure payment
of any liability or obligation of any Obligor to such Person, or otherwise shall provide
assurances of any Obligors payment or performance under any agreement with such Person, including
indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender
with respect to Banking Relationship Debt, then the Contingent Obligation of Agent or any Lender
providing any such indemnity, guaranty or other assurance of payment or performance, together with
any payment made or liability incurred by Agent or any Lender in connection therewith, shall
constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand,
any amount so paid or any liability incurred by Agent or any Lender in connection with any such
indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon Agent or any
Lender any obligation to provide any such indemnity, guaranty or assurance. The foregoing
agreement of Borrowers shall survive termination of the Commitments and Full Payment of the
Obligations and any other provisions of the Loan Documents regarding reimbursement or
indemnification by Borrowers of Claims suffered or incurred by Agent or any Lender.
3.5. Bank Charges. Borrowers shall pay to Agent, on demand, any and all fees, costs or
expenses which Agent pays to a bank or other similar institution (including any fees paid by Agent
or any Lender to any Participant) arising out of or in connection with (i) the forwarding to a
Borrower or any other Person on behalf of Borrower by Agent of proceeds of Loans made by Lenders to
a Borrower pursuant to this Agreement and (ii) the depositing for collection by Agent of any
Payment Item received or delivered to Agent on account of the Obligations. Each Borrower
acknowledges and agrees that Agent may charge such costs, fees and expenses to Borrowers based upon
Agents good faith estimate of such costs, fees and expenses as they are incurred by Agent.
3.6. Illegality. Notwithstanding anything to the contrary contained elsewhere in this
Agreement, if (i) any Change in Law shall make it unlawful for a Lender to make or maintain a LIBOR
Loan or to give effect to its obligations as contemplated hereby with respect to a LIBOR Loan, or
(ii) at any time such Lender determines that the making or continuance of any LIBOR Loan has become
impracticable as a result of a contingency occurring after the date hereof which adversely affects
the London interbank market or the position of such Lender in such market, then such Lender shall
give after such determination Agent and Borrowers notice thereof and may thereafter (1) declare
that LIBOR Loans will not thereafter be made by such Lender, whereupon any request by a Borrower
for a LIBOR Loan from such Lender shall be deemed a request for a Base Rate Loan unless such
Lenders declaration shall be subsequently withdrawn (which declaration shall be withdrawn promptly
after the cessation of the
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circumstances described in clause (i) or (ii) above); and (2) require that all
outstanding LIBOR Loans made by such Lender be converted to Base Rate Loans, under the
circumstances of clause (i) or (ii) of this Section 3.6 insofar as such Lender
determines the continuance of LIBOR Loans to be impracticable, in which event each of such Lenders
outstanding LIBOR Loans shall be converted to Base Rate Loans automatically on the expiration date
of the respective Interest Period applicable thereto (or, to the extent any such LIBOR Loan may not
be lawfully maintained as a LIBOR Loan until such expiration date, immediately upon such notice).
3.7. Increased Costs. If, by reason of any Change in Law:
(i) any Lender shall be subject after the date hereof to any Tax, duty or other charge
with respect to any LIBOR Loan or Letter of Credit or its obligation to make LIBOR Loans or
to issue Letters of Credit or participate in the LC Obligations arising from the issuance of
Letters of Credit, or a change shall result in the basis of taxation of payment to any
Lender of the principal of or interest on its LIBOR Loans or its obligation to make LIBOR
Loans, issue Letters of Credit or participate in the LC Obligations arising from the
issuance of Letters of Credit (except for Excluded Taxes); or
(ii) any reserve (including any imposed by the Board of Governors), special deposits or
similar requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender shall be imposed or deemed applicable or any other condition
affecting its LIBOR Loans or Letters of Credit or its obligation to make LIBOR Loans or to
issue Letters of Credit or participate in the LC Obligations arising from the issuance of
Letters of Credit shall be imposed on such Lender or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender of agreeing to make
or making, funding or maintaining LIBOR Loans or issuing Letters of Credit (except to the extent
already included in the determination of the applicable Adjusted LIBOR Rate for LIBOR Loans), or
there shall be a reduction in the amount received or receivable by such Lender, then such Lender
shall, promptly after determining the existence or amount of any such increased costs for which
such Lender seeks payment hereunder, give Borrower Representative notice thereof and Borrowers
shall from time to time, upon written notice from and demand by such Lender (with a copy of such
notice and demand to Agent), pay to Agent for the account of such Lender, within 5 Business Days
after the date specified in such notice and demand, an additional amount sufficient to indemnify
such Lender against such increased costs. A certificate as to the amount of such increased costs,
submitted to Borrowers by such Lender, shall be final, conclusive and binding for all purposes,
absent manifest error; provided, however, that Borrowers shall not be obligated to indemnify any
Lender for such increased costs for any period 90 days or more prior to the date such Lender
provides such notice.
If any Lender shall advise Agent at any time that, because of the circumstances described
hereinabove in this Section 3.7 or any other circumstances arising after the date of this Agreement
generally affecting the London interbank market, the Adjusted LIBOR Rate, as determined by Agent,
will not adequately and fairly reflect the cost to such Lender of funding LIBOR Loans or issuing
Letters of Credit, then, and in any such event:
(i) Agent shall forthwith give notice (by telephone confirmed promptly in writing) to
Borrowers and Lenders of such event;
(ii) Borrowers right to request and such Lenders obligation to make LIBOR Loans or to
issue Letters of Credit or participate in the LC Obligations arising from the issuance of
Letters of Credit shall be immediately suspended and Borrowers right to continue a LIBOR
Loan
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as such beyond the then applicable Interest Period or to request a Letter of Credit
shall also be suspended, until each condition giving rise to such suspension no longer
exists; and
(iii) such Lender shall make a Base Rate Loan as part of the requested Borrowing of
LIBOR Loans, which Base Rate Loan shall, for all purposes, be considered part of such
Borrowing.
For purposes of this Section 3.7, all references to a Lender shall be deemed to include any
bank holding company or bank parent of such Lender. If any Lender provides notice that, due to the
circumstances described in this Section 3.7, the Adjusted LIBOR Rate will not adequately and fairly
reflect the cost to such Lender of funding LIBOR Loans or participating in LC Obligations arising
from the issuance of Letters of Credit, then such Lender may be replaced pursuant to the provisions
of Section 13.17.
3.8. Capital Adequacy. If any Lender determines that any Change in Law affects or would affect
the amount of capital required or expected to be maintained by such Lender or any Person
controlling such Lender and (taking into consideration such Lenders or such corporations or other
entitys policies with respect to capital adequacy and such Lenders desired return on capital)
determines that the amount of such capital is increased as a consequence of its Commitments, loans,
credits or obligations under this Agreement, then: (a) Agent shall promptly, after its receipt of
a certificate from such Lender setting forth such Lenders determination of such occurrence, give
notice thereof to Borrowers and Lenders; and (b) Borrowers shall pay to Agent, for the account of
such Lender, as an additional fee from time to time, on demand, such amount as such Lender
certifies to be the amount reasonably calculated to compensate such Lender for such reduction;
provided, however, that Borrowers shall not be obligated to pay any Lender for such
amounts for any period 90 days or more prior to the date such Lender provides such notice. A
certificate of such Lender claiming entitlement to compensation as set forth above will be
conclusive in the absence of manifest error. Such certificate will set forth the nature of the
occurrence giving rise to such compensation, the additional amount or amounts to be paid to such
Lender (including the basis for such Lenders determination of such amount), and the method by
which such amounts were determined. In determining such amount, such Lender may use any reasonable
averaging and attribution method. For purposes of this Section 3.8 all references to a Lender
shall be deemed to include any bank holding company or bank parent of such Lender.
3.9. Mitigation. Each Lender agrees that, with reasonable promptness after such Lender
becomes aware that such Lender is entitled to receive payments under Sections 3.6, 3.7 or 3.8, or
is or has become subject to U.S. withholding taxes payable by any Borrower in respect of its Loans,
it will, to the extent not inconsistent with any internal policy of such Lender or any applicable
legal or regulatory restriction, (i) use all reasonable efforts to make, fund or maintain the
Commitment of such Lender or the Loans of such Lender through another lending office of such Lender
or (ii) take such other reasonable measures, if, as a result thereof, the circumstances which would
relieve Borrowers from their obligations to pay such additional amounts (or reduce the amount of
such payments), or such withholding taxes would be reduced, and if the making, funding or
maintaining of such Commitment or Loans through such other lending office or in accordance with
such other measures, as the case may be, would not otherwise adversely affect such Commitment or
Loans or the interests of such Lender.
3.10. Funding Losses. If for any reason (other than due to a default by a Lender, as a result of
a Lenders refusal to honor a LIBOR Loan request due to circumstances described in this Agreement
or as a result of the application of Section 3.7) a Borrowing of, or conversion to or continuation
of, LIBOR Loans does not occur on the date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not withdrawn), or if any repayment (including any conversions
pursuant to Section 3.1.2) of any of its LIBOR Loans occurs on a date that is not the last day of
an
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Interest Period applicable thereto, or if for any reason Borrowers default in their obligation to
repay LIBOR Loans when required by the terms of this Agreement, then Borrowers shall be jointly and
severally obligated to pay to each Lender an amount equal to all losses and expenses which such
Lender may sustain or incur as a consequence thereof, including any such loss or expense arising
from the liquidation or redeployment of funds obtained by it to maintain its LIBOR Loans or from
fees payable to terminate the deposits from which such funds were obtained. Borrowers shall pay
all such amounts due to any Lender upon presentation by such Lender of a statement setting forth
the amount and such Lenders calculation thereof, which statement shall be deemed true and correct
absent manifest error. For purposes of this Section 3.10, all references to a Lender shall be
deemed to include any bank holding company or bank parent of such Lender.
3.11. Maximum Interest. Regardless of any provision contained in any of the Loan Documents,
in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for,
charged or received by Agent and Lenders pursuant to the terms of this Agreement or any of the
other Loan Documents and that are deemed interest under Applicable Law exceed the highest rate
permissible under any Applicable Law (including, to the extent applicable, 18 U.S.C. § 85). No
agreements, conditions, provisions or stipulations contained in this Agreement or any of the other
Loan Documents or the exercise by Agent of the right to accelerate the payment or the maturity of
all or any portion of the Obligations, or the exercise of any option whatsoever contained in any of
the Loan Documents, or the prepayment by Borrowers of any of the Obligations, or the occurrence of
any contingency whatsoever, shall entitle Agent or any Lender to charge or receive in any event,
interest or any charges, amounts, premiums or fees deemed interest by Applicable Law (such
interest, charges, amounts, premiums and fees referred to herein collectively as
Interest) in excess of the Maximum Rate and in no event shall Borrowers be obligated to
pay Interest exceeding such Maximum Rate, and all agreements, conditions or stipulations, if any,
which may in any event or contingency whatsoever operate to bind, obligate or compel Borrowers to
pay Interest exceeding the Maximum Rate shall be without binding force or effect, at law or in
equity, to the extent only of the excess of Interest over such Maximum Rate. If any Interest is
charged or received with respect to the Obligations in excess of the Maximum Rate
(Excess), Borrowers stipulate that any such charge or receipt shall be the result of an
accident and bona fide error, and such Excess, to the extent received, shall be applied first to
reduce the principal of such Obligations and the balance, if any, returned to Borrowers, it being
the intent of the parties hereto not to enter into a usurious or otherwise illegal relationship.
Each Borrower recognizes that, with fluctuations in the rates of interest set forth in Section
3.1.1, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies
paid to Agent or any Lender hereunder or under any of the other Loan Documents, whether at maturity
or by prepayment, shall be subject to any rebate of unearned Interest as and to the extent required
by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit
or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii)
such Borrower shall not seek or pursue any other remedy, legal or equitable, against Agent or any
Lender, based in whole or in part upon contracting for, charging or receiving any Interest in
excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by Agent or any Lender, all Interest at any time contracted
for, charged or received from Borrowers in connection with any of the Loan Documents shall, to the
extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Obligations. Borrowers, Agent and Lenders shall, to the maximum
extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense,
fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects
thereof. The provisions of this Section 3.11 shall be deemed to be incorporated into every Loan
Document (whether or not any provision of this Section is referred to therein). All such Loan
Documents and communications relating to any Interest owed by Borrowers and all figures set forth
therein shall, for the sole purpose of computing the extent of Obligations, be automatically
recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments
or credits required by this Section 3.11.
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SECTION 4. LOAN ADMINISTRATION
4.1. Manner of Borrowing and Funding Revolver Loans. Borrowings under the Commitments
established pursuant to Section 2.1 shall be made and funded as follows:
4.1.1. Notice of Borrowing.
(i) Whenever Borrowers desire to make a Borrowing under Section 2.1 (other than a
Borrowing resulting from a conversion or continuation pursuant to Section 3.1.2), Borrowers
shall give Agent notice of such Borrowing request in form satisfactory to Agent (a
Notice of Borrowing). Such Notice of Borrowing shall be given by Borrower
Representative at the office designated by Agent from time to time (a) no later than 12:00
noon on the Business Day of the requested funding date of such Borrowing, in the case of
Base Rate Loans, and (b) no later than 1:00 p.m. at least 3 Business Days prior to the
requested funding date of such Borrowing, in the case of LIBOR Loans. Notices received
after such times shall be deemed received on the next Business Day. The Revolver Loans made
by each Lender on the Closing Date, if any, shall be in excess of $250,000 and shall be made
as Base Rate Loans and thereafter may be made or continued as or converted into Base Rate
Loans or LIBOR Loans. Each Notice of Borrowing (or telephonic notice thereof) shall be
irrevocable and shall specify (I) the principal amount of the Borrowing, (II) the date of
Borrowing (which shall be a Business Day), (III) whether the Borrowing is to consist of Base
Rate Loans or LIBOR Loans, (IV) in the case of LIBOR Loans, the duration of the Interest
Period to be applicable thereto, (V) the applicable Borrower(s) on behalf of which such
request is made, and (VI) the account of the applicable Borrower to which the proceeds of
such Borrowing are to be disbursed.
(ii) Unless payment is otherwise timely made by Borrowers, the becoming due of any
amount required to be paid with respect to any of the Obligations (whether as principal,
accrued interest, fees or other charges, including Extraordinary Expenses and LC
Obligations, and Secured Bank Product Obligations) shall be deemed irrevocably to be a
request (without any requirement for the submission of a Notice of Borrowing) for Revolver
Loans on the due date of, and in an aggregate amount required to pay, such Obligations, and
the proceeds of such Revolver Loans may be disbursed by way of direct payment of the
relevant Obligation and shall bear interest as Base Rate Loans unless and until such Loans
are converted to LIBOR Loans in accordance with the terms of this Agreement.
(iii) If Borrowers elect to establish a Controlled Disbursement Account with BofA or
any Affiliate of BofA, then, at Agents election, the presentation for payment by BofA (or
its Affiliate) of any check or other item of payment drawn on the Controlled Disbursement
Account at a time when there are insufficient funds in such account to cover such check
shall be deemed irrevocably to be a request (without any requirement for the submission of a
Notice of Borrowing) for Revolver Loans on the date of such presentation and in an amount
equal to the aggregate amount of the items presented for payment, and the proceeds of such
Revolver Loans may be disbursed to the Controlled Disbursement Account and shall bear
interest as Base Rate Loans.
(iv) Neither Agent nor any Lender shall have any obligation to honor any deemed request
for a Revolver Loan on or after the Commitment Termination Date or when an Out-of-Formula
Condition exists (except as may be otherwise required by Agent in accordance with this
Agreement) or would result therefrom or when any condition precedent in Section 11 is not
satisfied.
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4.1.2. Fundings by Lenders. Subject to its receipt of notice from Agent of a Notice of
Borrowing as provided in Section 4.1.1(i) (except in the case of a deemed request by Borrower
Representative for a Revolver Loan as provided in Sections 2.3, 4.1.1(ii) or (iii), in which event
no Notice of Borrowing need be submitted), each Lender shall timely honor its Revolver Commitment
by funding its Pro Rata share of each Borrowing of Revolver Loans that is properly requested and
that Borrowers are entitled to receive under this Agreement. Agent shall endeavor to notify
Lenders of each Notice of Borrowing (or deemed request for a Borrowing pursuant to Sections 2.3,
4.1.1(ii) or (iii)), by 1:00 p.m. on the proposed funding date (in the case of Base Rate Loans) or
by 3:00 p.m. at least 2 Business Days before the proposed funding date (in the case of LIBOR
Loans). Each Lender shall deposit with Agent an amount equal to its Pro Rata share of the
Borrowing requested or deemed requested by Borrowers at Agents designated bank in immediately
available funds not later than 2:00 p.m. on the date of funding of such Borrowing, unless Agents
notice to Lenders is received after 1:00 p.m. on the proposed funding date of a Base Rate Loan, in
which event Lenders shall deposit with Agent their respective Pro Rata shares of the requested
Borrowing on or before 11:00 a.m. of the next Business Day. Subject to its receipt of such amounts
from Lenders, Agent shall make the proceeds of the Revolver Loans received by it available to
Borrowers by disbursing such proceeds in accordance with Borrower Representatives disbursement
instructions set forth in the applicable Notice of Borrowing. Neither Agent nor any Lender shall
have any liability on account of any delay by any bank or other depository institution in treating
the proceeds of any Revolver Loan as collected funds or any delay in receipt, or any loss, of funds
that constitute a Revolver Loan, the wire transfer of which was initiated by Agent in accordance
with wiring instructions provided to Agent. Unless Agent shall have been notified in writing by a
Lender prior to the proposed time of funding that such Lender does not intend to deposit with Agent
an amount equal such Lenders Pro Rata share of the requested Borrowing (or deemed request for a
Borrowing pursuant to Section 2.3 or clauses (ii) or (iii) of Section 4.1.1), Agent may assume that
such Lender has deposited or promptly will deposit its share with Agent and Agent may in its
discretion disburse a corresponding amount to Borrowers on the applicable funding date. If a
Lenders Pro Rata share of such Borrowing is not in fact deposited with Agent, then, if Agent has
disbursed to Borrowers an amount corresponding to such share, then such Lender agrees to pay, and
in addition Borrowers agree to repay, to Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such amount is disbursed by Agent to or
for the benefit of Borrowers until the date such amount is paid or repaid to Agent, (a) in the case
of Borrowers, at the interest rate applicable to such Borrowing and (b) in the case of such Lender,
at the Federal Funds Rate. If such Lender repays to Agent such corresponding amount, such amount
so repaid shall constitute a Revolver Loan, and if both such Lender and Borrowers shall have repaid
such corresponding amount, Agent shall promptly return to Borrowers such corresponding amount in
same day funds. A notice from Agent submitted to any Lender with respect to amounts owing under
this Section 4.1.2 shall be conclusive, absent manifest error.
4.1.3. Settlement and Swingline Loans.
(i) In order to facilitate the administration of the Revolver Loans under this
Agreement, Lenders and Agent agree (which agreement shall be solely between Lenders and
Agent and shall not be for the benefit of or enforceable by any Borrower) that settlement
among them with respect to the Revolver Loans may take place on a periodic basis on dates
determined from time to time by Agent (each a Settlement Date), which may occur
before or after the occurrence or during the continuance of a Default or Event of Default
and whether or not all of the conditions set forth in Section 11 have been met. On each
Settlement Date, payment shall be made by or to each Lender in the manner provided herein
and in accordance with the Settlement Report delivered by Agent to Lenders with respect to
such Settlement Date so that, as of each Settlement Date and after giving effect to the
transaction to take place on such Settlement Date, each Lender shall hold its Pro Rata share
of all Revolver Loans and participations in LC
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Obligations. Agent shall request settlement with the Lenders on a basis not less
frequently than once every 5 Business Days.
(ii) Between Settlement Dates, Agent may request BofA to advance, and BofA may, but
shall in no event be obligated to, advance to Borrowers out of BofAs own funds the entire
principal amount of any Borrowing of Revolver Loans that are Base Rate Loans requested or
deemed requested pursuant to this Agreement (any such Revolver Loan funded exclusively by
BofA being referred to as a Swingline Loan); provided, that if BofA fails to
advance all such funds, the Lenders shall not be relieved of their obligation to fund
Revolver Loans in accordance with the terms of this Agreement. Each Swingline Loan shall
constitute a Revolver Loan hereunder and shall be subject to all of the terms, conditions
and security applicable to other Revolver Loans, except that all payments thereon shall be
payable to BofA solely for its own account. The obligation of Borrowers to repay such
Swingline Loans to BofA shall be evidenced by the records of BofA and need not be evidenced
by any promissory note. Unless a funding is required by all Lenders pursuant to Sections
2.1.4 or 13.9.5, Agent shall not request BofA to make any Swingline Loan if (A) Agent shall
have received written notice from any Lender that one or more of the applicable conditions
precedent set forth in Section 11 will not be satisfied on the requested funding date for
the applicable Borrowing and Agent has made a determination (without any liability to any
Person) that such condition precedent will not be satisfied, or (B) the requested Borrowing
would exceed the amount of Availability on the funding date. BofA shall not be required to
determine whether the applicable conditions precedent set forth in Section 11 have been
satisfied or the requested Borrowing would exceed the amount of Availability on the funding
date applicable thereto prior to making, in its discretion, any Swingline Loan. Agent shall
notify the Lenders of the outstanding balance of Swingline Loans prior to 11:00 a.m. on each
Settlement Date and each Lender (other than BofA) shall deposit with Agent an amount equal
to its Pro Rata share of the outstanding amount of Swingline Loans in immediately available
funds not later than 2:00 p.m. on such Settlement Date. Each Lenders obligation to make
such deposit with Agent shall be absolute and unconditional, without defense, offset,
counterclaim or other defense, and without regard to whether any of the conditions precedent
set forth in Section 11 are satisfied, any Out-of-Formula Condition exists or the Commitment
Termination Date has occurred. If, as the result of the commencement by or against
Borrowers of any Insolvency Proceeding or otherwise, any Swingline Loan may not be settled
among Lenders hereunder, then each Lender (other than BofA) shall be deemed to have
purchased a participating interest in any unpaid Swingline Loan in an amount equal to such
Lenders Pro Rata share of such Swingline Loan and shall transfer to BofA, in immediately
available funds not later than the second Business Day after BofAs request therefor, the
amount of such Lenders participation. The proceeds of Swingline Loans may be used solely
for purposes for which Revolver Loans generally may be used in accordance with Section
2.1.3. If any amounts received by BofA in respect of any Swingline Loans are later required
to be returned or repaid by BofA to Borrowers or any other Obligor or their respective
representatives or successors-in-interest, whether by court order, settlement or otherwise,
the other Lenders shall, on demand by BofA with notice to Agent, pay to Agent for the
account of BofA, an amount equal to each other Lenders Pro Rata share of all such amounts
required to be returned or repaid.
4.1.4. Disbursement Authorization. Each Borrower hereby irrevocably authorizes Agent to disburse
the proceeds of each Revolver Loan requested by any Borrower, or deemed to be requested pursuant to
Section 4.1.1 or Section 4.1.3(ii), as follows: (i) the proceeds of each Revolver Loan requested
under Section 4.1.1(i) shall be disbursed by Agent in accordance with the terms of the written
disbursement letter from Borrowers in the case of the initial Borrowing, and, in the case of each
subsequent Borrowing, by wire transfer to such bank account of Borrowers as may be agreed upon by
Borrowers and Agent from time to time or elsewhere if pursuant to a written direction from any
Borrower
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that is approved by Agent; and (ii) the proceeds of each Revolver Loan requested under Section
4.1.1(ii) or Section 4.1.3(ii) shall be disbursed by Agent by way of direct payment of the relevant
interest or other Obligation. Any Loan proceeds received by any Borrower or in payment of any of
the Obligations shall be deemed to have been received by all Borrowers for purposes of the joint
and several liability of Borrowers hereunder, but shall be accounted for in accordance with GAAP to
reflect the liability on the financial record of the actual Borrower.
4.1.5. Notices. Each Borrower authorizes Agent and Lenders to extend, convert or continue
Loans, effect selections of Types of Loans and transfer funds to or on behalf of Borrowers based on
telephonic or electronic instructions from any individual whom Agent or any Lender in good faith
believes to be acting on behalf of any Borrower. Borrowers shall confirm each such telephonic
request for a Borrowing or conversion or continuation of Loans by prompt delivery to Agent of the
required Notice of Borrowing or Notice of Conversion/Continuation, as applicable. If the written
confirmation differs in any material respect from the action taken by Agent or Lenders, the records
of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any
loss suffered by any Borrower as a result of Agents or any Lenders acting upon its understanding
of telephonic or electronic instructions or requests from a person believed in good faith by Agent
or any Lender to be a person authorized by a Borrower to give such instructions or to make such
requests on Borrowers behalf.
4.2. Defaulting Lender.
4.2.1. Reallocation of Pro Rata Share; Amendments. For purposes of determining Lenders
obligations to fund or participate in Loans or Letters of Credit, Agent may exclude the Commitments
and Loans of any Defaulting Lender(s) from the calculation of Pro Rata shares. In no event shall
any such reallocation cause the aggregate of outstanding Loans and LC Obligations of any Lender to
exceed such Lenders Commitment. A Defaulting Lender shall have no right to vote on any amendment,
waiver or other modification of a Loan Document, except as provided in Section 13.9.1(c).
4.2.2. Payments; Fees. Agent may, in its discretion, receive and retain any amounts payable
to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have
assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and
other Secured Parties have been paid in full. Agent may apply such amounts to the Defaulting
Lenders defaulted obligations, use the funds to Cash Collateralize such Lenders Fronting
Exposure, or readvance the amounts to Borrowers hereunder. A Lender shall not be entitled to
receive any fees accruing hereunder during the period in which it is a Defaulting Lender, and the
unfunded portion of its Commitment shall be disregarded for purposes of calculating the unused line
fee under Section 3.2.2. If any LC Obligations owing to a Defaulted Lender are reallocated to
other Lenders, fees attributable to such LC Obligations under Section 3.2.3 shall be paid to such
Lenders. Agent shall be paid all fees attributable to LC Obligations that are not reallocated.
4.2.3. Cure. Borrowers, Agent and Issuing Bank may agree in writing that a Lender is no longer a
Defaulting Lender. At such time, Pro Rata shares shall be reallocated without exclusion of such
Lenders Commitments and Loans, and all outstanding Revolver Loans, LC Obligations and other
exposures under the Revolver Commitments shall be reallocated among Lenders and settled by Agent
(with appropriate payments by the reinstated Lender) in accordance with the readjusted Pro Rata
shares. Unless expressly agreed by Borrowers, Agent and Issuing Bank, no reinstatement of a Defaulting Lender shall
constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a
Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations
hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible
for default by another Lender.
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4.3. Special Provisions Governing LIBOR Loans.
4.3.1. Number of LIBOR Loans. In no event may the number of LIBOR Loans outstanding at any
time to any Lender exceed 10.
4.3.2. Minimum Amounts. Each Borrowing of LIBOR Loans pursuant to Section 4.1.1(i), and each
continuation of or conversion to LIBOR Loans pursuant to Section 3.1.2, shall be in a minimum
amount of $1,000,000 and integral multiples of $100,000 in excess of that amount.
4.3.3. LIBOR Lending Office. Each Lender shall have the right at any time and from time to
time to designate a different office of itself or of any Affiliate as such Lenders LIBOR Lending
Office, and to transfer any outstanding LIBOR Loans to such LIBOR Lending Office. No such
designation or transfer shall result in any liability on the part of Borrowers for increased costs
or expenses resulting solely from such designation or transfer. Increased costs for expenses
resulting from a change in Applicable Law occurring subsequent to any such designation or transfer
shall be deemed not to result solely from such designation or transfer.
4.3.4. Funding of LIBOR Loans. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert LIBOR Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such Lender) to make or maintain such
LIBOR Loans; provided, however, that such LIBOR Loans shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of Borrowers to repay such LIBOR Loans shall
nevertheless be to such Lender for the account of such foreign branch, Affiliate or international
banking facility. The calculation of all amounts payable to any Lender under Sections 3.7 and 3.10
shall be made as if each Lender had actually funded or committed to fund its LIBOR Loan through the
purchase of an underlying deposit in an amount equal to the amount of such LIBOR Loan and having a
maturity comparable to the relevant Interest Period for such LIBOR Loans; provided, however, each
Lender may fund its LIBOR Loans in any manner it deems fit and the foregoing presumption shall be
utilized only for the calculation of amounts payable under Sections 3.7 and 3.10.
4.4. Borrower Representative. Each Borrower hereby irrevocably appoints Coltec, and Coltec
agrees to act under this Agreement, as the agent and representative of itself and each other
Borrower for all purposes under this Agreement (in such capacity, Borrower
Representative), including requesting Borrowings, submitting LC Requests, selecting whether
any Loan or portion thereof is to bear interest as a Base Rate Loan or a LIBOR Loan, and receiving
account statements and other notices and communications to Borrowers (or any of them) from Agent.
Agent may rely, and shall be fully protected in relying, on any Notice of Borrowing, Notice of
Conversion/Continuation, LC Request, disbursement instructions, reports, information, Borrowing
Base Certificate or any other notice or communication made or given by Borrower Representative,
whether in its own name, on behalf of any Borrower or on behalf of the Borrowers, and Agent shall
have no obligation to make any inquiry or request any confirmation from or on behalf of any other
Borrower as to the binding effect on such Borrower of any such Notice of Borrowing, Notice of
Conversion Continuation, LC Request, instruction, report, information, Borrowing Base Certificate
or other notice or communication, nor shall the joint and several character of Borrowers liability
for the Obligations be affected, provided that the provisions of this Section 4.4 shall not be
construed so as to preclude any Borrower from directly requesting Borrowings or taking other
actions permitted to be taken by a Borrower hereunder. Agent may maintain a single Loan Account
in the name of Coltec or EnPro hereunder, and each Borrower expressly agrees to such arrangement
and confirms that such arrangement shall have no effect on the joint and several character of such
Borrowers liability for the Obligations.
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4.5. All Loans to Constitute One Obligation. The Loans and LC Obligations shall constitute
one general obligation of Borrowers and (unless otherwise expressly provided in any Security
Document) shall be secured by Agents Lien upon all of the Collateral; provided,
however, that Agent and each Lender shall be deemed to be a creditor of each Borrower and
the holder of a separate claim against each Borrower to the extent of any Obligations jointly and
severally owed by Borrowers to Agent or such Lender.
SECTION 5. PAYMENTS
5.1. General Payment Provisions. All payments (including all prepayments) of principal of
and interest on the Loans, LC Obligations and other Obligations that are payable to Agent or any
Lender shall be made to Agent in Dollars without any offset or counterclaim and free and clear of
(and without deduction for) any Taxes (other than Excluded Taxes), and, with respect to payments
made other than by application of balances in the applicable Payment Account, in immediately
available funds not later than 1:00 p.m. on the due date (and payment made after such time on the
due date to be deemed to have been made on the next succeeding Business Day). Borrowers shall, at
the time Borrowers make any payment under this Agreement, specify to Agent the Obligations to which
such payment is to be applied and, if Borrowers fail so to specify or if the application specified
by Borrowers would be inconsistent with the terms of this Agreement or if an Event of Default
exists, Agent shall distribute such payment to Lenders for application to the Obligations in such
manner as Agent, subject to the provisions of this Agreement, may determine to be appropriate. All
payments received by Agent shall be subject to the rights of offset that Agent may have as to
amounts otherwise to be remitted to a particular Lender by reason of amounts due Agent from such
Lender under any of the Loan Documents. At any time and from time to time, to the extent Loans are
not repaid by application of balances in the applicable Payment Account (if required hereunder),
Borrowers shall have the right to prepay the Loans, in whole or in part, without premium or penalty
(except as provided in the proviso below), upon written notice given to Agent not later than 1:00
p.m., three (3) Business Days prior to each intended prepayment of LIBOR Loans and one (1) Business
Day prior to each intended prepayment of Base Rate Loans; provided that unless made
together with all amounts required under Section 3.10 to be paid as a consequence of such
prepayment, a prepayment of a LIBOR Loan may be made only on the last day of the Interest Period
applicable thereto. Each such notice shall specify the proposed date of such prepayment, the
aggregate principal amount of the Loans to be prepaid, whether such Loans are Base Rate Loans or
LIBOR Loans (and, in the case of LIBOR Loans, the Interest Period of the Borrowing pursuant to
which made), shall be irrevocable and shall bind Borrowers to make such prepayment on the terms
specified therein (except to the extent that the amount of the Loans to be repaid is reduced by the
application of balances in the applicable Payment Account prior to the time of repayment). Loans
prepaid pursuant to this Section 5.1 may be reborrowed, subject to the terms and conditions of this
Agreement.
5.2. Repayment of Revolver Loans.
5.2.1. Payment of Principal. The outstanding principal amounts with respect to the Revolver
Loans shall be repaid as follows:
(i) Any portion of the Revolver Loans consisting of the principal amount of Base Rate
Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders (or, in the
case of Swingline Loans, for the sole benefit of BofA), unless timely converted to a LIBOR
Loan in accordance with this Agreement, immediately upon (a) each receipt by Agent, any
Lender or Borrowers of any proceeds of any of the Accounts or Inventory, to the extent of such
proceeds, and (b) the Commitment Termination Date.
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(ii) Any portion of the Revolver Loans consisting of the principal amount of LIBOR
Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders, unless
continued as a LIBOR Loan in accordance with the terms of this Agreement, immediately upon
(a) the last day of the Interest Period applicable thereto and (b) the Commitment
Termination Date. In no event shall Borrowers be authorized to make a voluntary prepayment
with respect to any Revolver Loan outstanding as a LIBOR Loan prior to the last day of the
Interest Period applicable thereto unless Borrowers pay to Agent, for the Pro Rata benefit
of Lenders, concurrently with any prepayment of a LIBOR Loan, any amount due Agent and
Lenders under Section 3.10 as a consequence of such prepayment. Notwithstanding anything to
the contrary contained in this Agreement, unless so directed by Borrower Representative or
unless an Event of Default has occurred and is continuing, neither Agent nor any Lender
shall apply any payments which it receives (or any proceeds of Accounts or Inventory) to any
LIBOR Loan, except on the expiration date of the Interest Period applicable to any such
LIBOR Loan; provided, that Borrowers shall be required to pay breakage losses in accordance
with Section 3.10 of this Agreement if required thereunder. In the event that Agent
receives, on any date when LIBOR Loans are outstanding but no Base Rate Loans are
outstanding, proceeds of any of the Accounts or Inventory that are required to be used to
prepay the principal amount of LIBOR Loans, Agent may hold such proceeds as cash security
for the Obligations represented by such LIBOR Loans and apply such proceeds to such LIBOR
Loans on the expiration date of the Interest Period applicable thereto.
(iii) Notwithstanding anything to the contrary contained elsewhere in this Agreement,
if an Out-of-Formula Condition shall exist, Borrowers shall, on the sooner to occur of the
first Business Day after any Borrower has obtained knowledge thereof or Agents demand,
repay the outstanding Revolver Loans that are Base Rate Loans in an amount sufficient to
reduce the aggregate unpaid principal amount of all Revolver Loans by an amount equal to
such excess; and, if such payment of Base Rate Loans is not sufficient to eliminate the
Out-of-Formula Condition, then Borrowers shall immediately deposit with Agent, for the Pro
Rata benefit of Lenders, for application to any outstanding Revolver Loans bearing interest
as LIBOR Loans as the same become due and payable (whether at the end of the applicable
Interest Periods or on the Commitment Termination Date) cash in an amount sufficient to
eliminate such Out-of-Formula Condition, and Agent may (a) hold such deposit as cash
security pending disbursement of same to Lenders for application to the outstanding Revolver
Loans bearing interest as LIBOR Loans as the same become due and payable, or (b) if a
Default or Event of Default exists, immediately apply such proceeds to the payment of the
Obligations, including the Revolver Loans outstanding as LIBOR Loans (in which event
Borrowers shall also pay to Agent for the Pro Rata benefit of Lenders any amounts required
by Section 3.10 to be paid by reason of the prepayment of a LIBOR Loan prior to the last day
of the Interest Period applicable thereto).
5.2.2. Payment of Interest. Interest accrued on the Revolver Loans shall be due and payable
on (i) the first day of each month (for the immediately preceding month), computed through the last
day of the preceding month, with respect to any Revolver Loan (whether a Base Rate Loan or LIBOR
Loan) and (ii) the last day of the applicable Interest Period in the case of a LIBOR Loan. Accrued
interest shall also be paid by Borrowers on the Commitment Termination Date. With respect to any
Base Rate Loan converted into a LIBOR Loan pursuant to Section 3.1.2 on a day when interest would
not otherwise have been payable with respect to such Base Rate Loan, accrued interest to the date
of such conversion on the amount of such Base Rate Loan so converted shall be paid on the
conversion date.
5.3. Payment of Other Obligations. The balance of the Obligations requiring the payment of
money, including LC Obligations and Extraordinary Expenses incurred by Agent or any Lender, shall
be repaid by Borrowers to Agent for allocation among Agent and Lenders as provided in the Loan
Documents, or, if no date of payment is otherwise specified in the Loan Documents, on demand.
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5.4. Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of Borrowers or any other Obligor or against or in
payment of any or all of the Obligations. To the extent that Borrowers make a payment to Agent or
Lenders or Agent or any Lender receives payment from the proceeds of any Collateral or exercises
its right of setoff, and such payment or the proceeds of such Collateral or setoff (or any part
thereof) are subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, receiver or any other Person, then to the extent of any loss by
Agent or Lenders, the Obligations or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if
such payment or proceeds had not been made or received and any such enforcement or setoff had not
occurred. The provisions of the immediately preceding sentence of this Section 5.4 shall survive
any termination of the Commitments and Full Payment of the Obligations.
5.5. Post-Default Allocation of Payments.
5.5.1. Allocation. At any time that an Event of Default exists or Agent receives a payment
or Collateral proceeds in an amount that is insufficient to pay all amounts then due and payable to
Agent and Lenders, all monies to be applied to the Obligations, whether such monies represent
voluntary or mandatory payments or prepayments by one or more Obligors or are received pursuant to
demand for payment or realized from any disposition of Collateral and irrespective of any
designation by Borrowers of the Obligations that are intended to be satisfied, shall be allocated
among Agent and such of the Lenders as are entitled thereto (and, with respect to monies allocated
to Lenders, on a Pro Rata basis unless otherwise provided herein): (i) first, to Agent to
pay the amount of Extraordinary Expenses that have not been reimbursed to Agent by Borrowers or
Lenders, together with interest accrued thereon at the rate applicable to Revolver Loans that are
Base Rate Loans; (ii) second, to Agent to pay principal and accrued interest on any portion
of the Revolver Loans (including Protective Advances) which Agent may have advanced on behalf of
any Lender and for which Agent has not been reimbursed by such Lender or Borrowers; (iii)
third, to BofA to pay the principal and accrued interest on any portion of the Swingline
Loans outstanding, to be shared with Lenders that have acquired and paid for a participating
interest in such Swingline Loans; (iv) fourth, to the extent that Issuing Bank has not
received from any Participating Lender a payment as required by Section 2.3.2, to Issuing Bank to
pay all such required payments from each Participating Lender; (v) fifth, to Agent to pay
any Claims that have not been paid pursuant to any indemnity of Agent Indemnitees by any Obligor,
or to pay amounts owing by Lenders to Agent Indemnitees pursuant to Section 13.6, in each case
together with interest accrued thereon at the rate applicable to Revolver Loans that are Base Rate
Loans; (vi) sixth, to Agent to pay any fees due and payable to Agent; (vii)
seventh, to each Lender, ratably, for any Claims that such Lender has paid to Agent
Indemnitees pursuant to its indemnity of Agent Indemnitees and any Extraordinary Expenses that such
Lender has reimbursed to Agent or such Lender has incurred, to the extent that such Lender has not
been reimbursed by Obligors therefor; (viii) eighth, to Issuing Bank to pay principal and
interest with respect to LC Obligations (or to the extent any of the LC Obligations are contingent
and an Event of Default then exists, deposited in the Cash Collateral Account to Cash Collateralize
the LC Obligations), which payment shall be shared with the Participating Lenders in accordance
with Section 2.3.2(iii); (ix) ninth, to (a) Lenders in payment of the unpaid principal and
accrued interest in respect of the Loans then outstanding, in such order of application as shall be
designated by Agent (acting at the direction or with the consent of the Required Lenders) and (b)
Secured Bank Product Providers in payment of Secured Bank Product Obligations arising in connection
with any Noticed Hedge as to which a Bank Product Reserve has been created for such Noticed Hedge;
(x) tenth, to Lenders or Secured Bank Product
Providers in payment of all other Obligations (other than Secured Bank Product Obligations to
be paid pursuant to clause (xi) below); and (xi) eleventh, to Secured Bank Product
Providers in payment of Secured Bank Product Obligations arising in connection with (x) any Noticed
Hedge as to which a Bank Product Reserve has not been created or (y) that portion of any Noticed
Hedge in excess of the Bank Product Reserve created therefor, in each case that are not paid
pursuant to clause (ix)(b) above).
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Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof
and then to the next category. If amounts are insufficient to satisfy a category, where applicable
they shall be applied on a Pro Rata basis among the Obligations in the category. Amounts
distributed with respect to any Secured Bank Product Obligations shall be the lesser of the maximum
Secured Bank Product Obligations last reported to Agent or the actual Secured Bank Product
Obligations as calculated by the methodology reported to Agent for determining the amount due.
Agent shall have no obligation to calculate the amount to be distributed with respect to any
Secured Bank Product Obligations, and may request a reasonably detailed calculation of such amount
from the applicable Secured Party. If a Secured Party fails to deliver such calculation within
five days following request by Agent, Agent may assume the amount to be distributed is zero. The
allocations set forth in this Section are solely to determine the rights and priorities of Agent
and Secured Parties as among themselves, and may be changed by agreement among them without the
consent of any Obligor. This Section is not for the benefit of or enforceable by any Borrower.
Any amounts remaining after the foregoing allocations shall be distributed to Borrower
Representative, for the benefit of Borrowers, or as otherwise required by Applicable Law.
5.5.2. Erroneous Allocation. Agent shall not be liable for any application of amounts made by it
in good faith and, if any such application is subsequently determined to have been made in error,
the sole recourse of any Lender or other Person to which such amount should have been made shall be
to recover the amount from the Person that actually received it (and, if such amount was received
by any Lender, such Lender hereby agrees to return it).
5.6. Application of Payments and Collateral Proceeds. Each Borrower irrevocably waives the
right to direct the application of any and all payments and Collateral proceeds at any time or
times hereafter received by Agent or any Lender from or on behalf of Borrowers, and each Borrower
does hereby irrevocably agree that Agent shall have the continuing exclusive right to apply and
reapply any and all such payments and Collateral proceeds received at any time or times hereafter
by Agent or its agent against the Obligations, in such manner as Agent may deem advisable,
notwithstanding any entry by Agent upon any of its books and records; provided,
however, that any payments or proceeds of Collateral received by Agent on any date that an
Event of Default does not exist shall be applied in accordance with any provisions of this
Agreement that govern the application of such payment or proceeds (including Section 5.2.1). If,
as the result of Agents collection of proceeds of Accounts and other Collateral as authorized by
Section 8.2.6 a credit balance exists, such credit balance shall not accrue interest in favor of
Borrowers, but shall be available to Borrowers at any time or times for so long as no Default or
Event of Default exists. Agent may apply such credit balance against any of the Obligations upon
and after the occurrence of an Event of Default and, to the extent so applied, such credit balance
shall be applied in the manner specified in Section 5.5.1.
5.7. Loan Accounts; the Register; Account Stated.
5.7.1. Loan Accounts. Each Lender shall maintain in accordance with its usual and customary
practices an account or accounts (a Loan Account) evidencing the Debt of Borrowers to
such Lender resulting from each Loan owing to such Lender from time to time, including the amount
of principal and interest payable to such Lender from time to time hereunder. Any failure of a
Lender to record in the Loan Account, or any error in doing so, shall not limit or otherwise affect
the obligation of Borrowers hereunder to pay any amount owing hereunder to such Lender.
5.7.2. The Register. Agent shall maintain a register (the Register), which shall
include a master account and a subsidiary account for each Lender and in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of
each Loan comprising such Borrowing and any Interest Period applicable thereto, (ii) the effective
date and amount
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of each Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to become due and payable
from Borrowers to each Lender hereunder, and (iv) the amount of any sum received by Agent from
Borrowers or any other Obligor and each Lenders Pro Rata share thereof. The Register shall be
available for inspection by Borrowers or any Lender at the offices of Agent at any reasonable time
and from time to time upon reasonable prior notice. Any failure of Agent to record in the
Register, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers
hereunder to pay any amount owing with respect to the Loans or provide the basis for any claim
against Agent.
5.7.3. Entries Binding. The entries made in the Register and each Loan Account shall
constitute rebuttably presumptive evidence of the information contained therein; provided, however,
that if a copy of information contained in the Register or any Loan Account is provided to any
Person, or any Person inspects the Register or any Loan Account, at any time or from time to time,
then the information contained in the Register or the Loan Account, as applicable, shall be
conclusive and binding on such Person for all purposes absent manifest error, unless such Person
notifies Agent in writing within 30 days after such Persons receipt of such copy or such Persons
inspection of the Register or Loan Account of its intention to dispute the information contained
therein.
5.8. Taxes.
5.8.1. Payments Free of Taxes. All payments by Obligors of Obligations shall be free and
clear of and without reduction for any Taxes. If Applicable Law requires any Obligor or Agent to
withhold or deduct any Tax (including backup withholding or withholding Tax), the withholding or
deduction shall be based on information provided pursuant to Section 5.9 and Agent shall pay the
amount withheld or deducted to the relevant Governmental Authority. If the withholding or
deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by Borrowers
shall be increased so that Agent, Lender or Issuing Bank, as applicable, receives an amount equal
to the sum it would have received if no such withholding or deduction (including deductions
applicable to additional sums payable under this Section) had been made. Without limiting the
foregoing, Borrowers shall timely pay all Other Taxes to the relevant Governmental Authorities. If
Agent or any Lender determines, in its reasonable discretion, that it has received a refund,
credit, or other reduction of taxes in respect of any Taxes paid by Borrowers pursuant to this
Section 5.8, such Person shall, within 30 days from the date of actual receipt of such refund or
the filing of the tax return in which such credit or other reduction results in a lower tax
payment, pay over such refund or the amount of such tax reduction to Borrowers (but only to the
extent of Taxes paid by Borrowers pursuant to this Section 5.8), net of all out-of-pocket expenses
of such Person, and without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund).
5.8.2. Payment. Subject to Lenders and Issuing Banks indemnification obligations set forth
in Section 5.9.3, Borrowers shall indemnify, hold harmless and reimburse (within 10 days after
demand therefor) Agent, Lenders and Issuing Bank for any Indemnified Taxes or Other Taxes
(including those attributable to amounts payable under this Section) withheld or deducted by any
Obligor or Agent, or paid by Agent, any Lender or Issuing Bank, with respect to any Obligations,
Letters of Credit or Loan Documents, whether or not such Taxes were properly asserted by the
relevant Governmental Authority, and including all
penalties, interest and reasonable expenses relating thereto, as well as any amount that a
Lender or Issuing Bank fails to pay indefeasibly to Agent under Section 5.9. A certificate as to
the amount of any such payment or liability delivered to Borrower Agent by Agent, or by a Lender or
Issuing Bank (with a copy to Agent), shall be conclusive, absent manifest error. As soon as
practicable after any payment of Taxes by a Borrower, Borrower Agent shall deliver to Agent a
receipt from the Governmental Authority or other evidence of payment satisfactory to Agent.
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5.9. Lender Tax Information.
5.9.1. Status of Lenders. Each Lender shall deliver documentation and information to Agent
and Borrower Agent, at the times and in form required by Applicable Law or reasonably requested by
Agent or Borrower Agent, sufficient to permit Agent or Borrowers to determine (a) whether or not
payments made with respect to Obligations are subject to Taxes, (b) if applicable, the required
rate of withholding or deduction, and (c) such Lenders entitlement to any available exemption
from, or reduction of, applicable Taxes for such payments or otherwise to establish such Lenders
status for withholding tax purposes in the applicable jurisdiction.
5.9.2. Documentation. If a Borrower is resident for tax purposes in the United States, any
Lender that is a United States person within the meaning of section 7701(a)(30) of the Code shall
deliver to Agent and Borrower Agent IRS Form W-9 or such other documentation or information
prescribed by Applicable Law or reasonably requested by Agent or Borrower Agent to determine
whether such Lender is subject to backup withholding or information reporting requirements. If any
Foreign Lender is entitled to any exemption from or reduction of withholding tax for payments with
respect to the Obligations, it shall deliver to Agent and Borrower Agent, on or prior to the date
on which it becomes a Lender hereunder (and from time to time thereafter upon request by Agent or
Borrower Agent, but only if such Foreign Lender is legally entitled to do so), (a) IRS Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(b) IRS Form W-8ECI; (c) IRS Form W-8IMY and all required supporting documentation; (d) in the case
of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section
881(c) of the Code, IRS Form W-8BEN and a certificate showing such Foreign Lender is not (i) a
bank within the meaning of section 881(c)(3)(A) of the Code, (ii) a 10 percent shareholder of
any Obligor within the meaning of section 881(c)(3)(B) of the Code, or (iii) a controlled foreign
corporation described in section 881(c)(3)(C) of the Code; or (e) any other form prescribed by
Applicable Law as a basis for claiming exemption from or a reduction in withholding tax, together
with such supplementary documentation necessary to allow Agent and Borrowers to determine the
withholding or deduction required to be made.
5.9.3. Lender Obligations. Each Lender and Issuing Bank shall promptly notify Borrowers and
Agent of any change in circumstances that would change any claimed Tax exemption or reduction.
Each Lender and Issuing Bank shall indemnify, hold harmless and reimburse (within 10 days after
demand therefor) Borrowers and Agent for any Taxes, losses, claims, liabilities, penalties,
interest and expenses (including reasonable attorneys fees) incurred by or asserted against a
Borrower or Agent by any Governmental Authority due to such Lenders or Issuing Banks failure to
deliver, or inaccuracy or deficiency in, any documentation required to be delivered by it pursuant
to this Section. Each Lender and Issuing Bank authorizes Agent to set off any amounts due to Agent
under this Section against any amounts payable to such Lender or Issuing Bank under any Loan
Document.
5.10. Nature and Extent of Each Borrowers Liability.
5.10.1. Joint and Several Liability. Each Borrower shall be liable for, on a joint and
several basis, and hereby guarantees the timely payment by all other Borrowers, Obligors and Bank
Product Obligors of, all of the Loans and other Obligations, regardless of which Borrower, Obligor
or Bank Product Obligor actually may have received the proceeds of any Loans or other extensions of
credit hereunder (or the direct benefit of any Bank Products) or the amount of such Loans received
or the manner in which Agent or any Lender accounts for such Loans or other extensions of credit or
Bank Products on its books and records, it being acknowledged and agreed that Loans to any Borrower
and any other extensions of credit hereunder and Bank Products inure to the mutual benefit of all
Borrowers and that Agent and Lenders are relying on the joint and several liability of Borrowers in
extending the Loans and other financial accommodations hereunder and in making Bank Products
available to Bank Products
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Obligors. Each Borrower hereby unconditionally and irrevocably agrees
that upon default in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal of, or interest owed on, any of the Loans or other Obligations, such
Borrower shall forthwith pay the same, without notice or demand.
5.10.2. Unconditional Nature of Liability. Each Borrowers joint and several liability
hereunder with respect to, and guaranty of, the Loans and other Obligations shall, to the fullest
extent permitted by Applicable Law, be unconditional irrespective of (i) the validity,
enforceability, avoidance or subordination of any of the Obligations or of any promissory note or
other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to
collect any of the Obligations from any other Obligor (or Bank Products Obligor) or any Collateral,
or the absence of any other action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by Agent or any Lender with respect to any provision of
any instrument evidencing or securing the payment of any of the Obligations, or any other agreement
now or hereafter executed by any other Obligor (or Bank Products Obligor) and delivered to Agent or
any Lender, (iv) the failure by Agent to take any steps to perfect or maintain the perfected status
of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or
other security for the payment or performance of any of the Obligations or Agents release of any
Collateral or of its Liens upon any Collateral, (v) Agents or Lenders election, in any proceeding
instituted under the Bankruptcy Code, for the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by any other Obligor (or Bank Products
Obligor), as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the release or
compromise, in whole or in part, of the liability of any Obligor (or Bank Products Obligor) for the
payment of any of the Obligations, (viii) any amendment or modification of any of the Loan
Documents or any waiver of a Default or Event of Default, (ix) any increase in the amount of the
Obligations beyond any limits imposed herein or in the amount of any interest, fees or other
charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all
or any portion of Agents or any Lenders claims against any other Obligor (or Bank Products
Obligor) for the repayment of any of the Obligations under Section 502 of the Bankruptcy Code, (xi)
any change in the corporate existence or structure of any other Obligor; (xii) any law or
regulation of any jurisdiction or any event affecting any term of any Obligation; or (xiii) any
other circumstance that might constitute a legal or equitable discharge or defense of any Obligor
(or Bank Products Obligor); provided, however, nothing contained in the foregoing shall limit any
Obligors right to institute an action for any alleged breach by Agent or any Lender of any
obligations hereunder. Under no circumstances shall Borrowers be construed to have waived defenses
based upon Full Payment with respect to any Obligation, willful misconduct or gross negligence.
After the occurrence and during the continuance of any Event of Default, Agent may proceed directly
and at once, without notice to any Obligor, against any or all of Obligors (or Bank Products
Obligor) to collect and recover all or any part of the Obligations, without first proceeding
against any other Obligor (or Bank Products Obligor) or against any Collateral or other security
for the payment or performance of any of the Obligations, and each Borrower waives any provision
under Applicable Law that might otherwise require Agent to pursue or
exhaust its remedies against any Collateral or Obligor (or Bank Products Obligor) before
pursuing another Obligor (or Bank Products Obligor). Each Borrower consents and agrees that Agent
shall be under no obligation to marshal any assets in favor of any Obligor (or Bank Products
Obligor) or against or in payment of any or all of the Obligations.
5.10.3. No Reduction in Liability for Obligations. No payment or payments made by an Obligor
(or Bank Products Obligor) or received or collected by Agent from a Borrower or any other Person by
virtue of any action or proceeding or any setoff or appropriation or application at any time or
from time to time in reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any Borrower under this Agreement (except to
the extent so reduced or paid), each of whom shall remain jointly and severally liable for the
payment and performance of all Loans and other Obligations until Full Payment of the Obligations.
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5.10.4. Contribution. Each Borrower is unconditionally obligated to repay the
Obligations as a joint and several obligor under this Agreement. If, as of any date, the aggregate
amount of payments made by a Borrower on account of the Obligations and proceeds of such Borrowers
Collateral that are applied to the Obligations exceeds the aggregate amount of Loan proceeds
actually used by such Borrower in its business (such excess amount being referred to as an
Accommodation Payment), then each of the other Borrowers (each such Borrower being
referred to as a Contributing Borrower) shall be obligated to make contribution to such
Borrower (the Paying Borrower) in an amount equal to (A) the product derived by
multiplying the sum of each Accommodation Payment of each Borrower by the Allocable Percentage of
the Borrower from whom contribution is sought less (B) the amount, if any, of the then
outstanding Accommodation Payment of such Contributing Borrower (such last mentioned amount which
is to be subtracted from the aforesaid product to be increased by any amounts theretofore paid by
such Contributing Borrower by way of contribution hereunder, and to be decreased by any amounts
theretofore received by such Contributing Borrower by way of contribution hereunder);
provided, however, that a Paying Borrowers recovery of contribution hereunder from
the other Borrowers shall be limited to that amount paid by the Paying Borrower in excess of its
Allocable Percentage of all Accommodation Payments then outstanding of all Borrowers. As used
herein, the term Allocable Percentage shall mean, on any date of determination thereof, a
fraction the denominator of which shall be equal to the number of Borrowers who are parties to this
Agreement on such date and the numerator of which shall be 1; provided, however,
that such percentages shall be modified in the event that contribution from a Borrower is not
possible by reason of insolvency, bankruptcy or otherwise by reducing such Borrowers Allocable
Percentage equitably and by adjusting the Allocable Percentage of the other Borrowers
proportionately so that the Allocable Percentages of all Borrowers at all times equals 100%.
5.10.5. Subordination. Each Borrower hereby subordinates any claims, including any right of
payment, subrogation, contribution and indemnity, that it may have from or against any other
Obligor (or Bank Products Obligor), and any successor or assign of any other Obligor (or Bank
Products Obligor), including any trustee, receiver or debtor-in-possession, howsoever arising, due
or owing or whether heretofore, now or hereafter existing, to the Full Payment of all of the
Obligations.
SECTION 6. TERM AND TERMINATION OF COMMITMENTS
6.1. Term of Commitments. Subject to each Lenders right in accordance with the terms of
this Agreement to cease making Loans and other extensions of credit to Borrowers when any Default
or Event of Default exists or upon termination of the Commitments as provided in Section 6.2, the
Commitments shall be in effect for a period (the Term) commencing on the date hereof and
continuing until the close of business on March 30, 2016, unless sooner terminated as provided in
Section 6.2.
6.2. Termination.
6.2.1. Termination by Agent or Required Lenders. Agent may (and upon the direction of the
Required Lenders, shall) terminate the Commitments without notice at any time that an Event of
Default exists; provided, however, that the Commitments shall automatically
terminate as provided in Section 12.2.
6.2.2. Termination by Borrowers. At any time and from time to time after the date hereof,
upon not less than ten (10) Business Days prior written notice to Agent from Borrower
Representative, the Borrowers may terminate in whole or reduce in part the aggregate Commitments;
provided that (i) no such termination by Borrowers shall be effective until Full Payment of the
Obligations, (ii) any such partial reduction shall be in an aggregate amount of not less than
$5,000,000 or, if greater, an integral multiple of $500,000 in excess thereof, and (iii) no such
partial reduction shall
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reduce the aggregate Commitments to less than $50,000,000. The amount of any termination or
reduction made under this Section 6.2.2 may not thereafter be reinstated, and any notice of
termination given by Borrowers shall be irrevocable unless Agent receives notice of the revocation
thereof at least 3 Business Days prior to the proposed termination date. Each reduction of the
Commitments pursuant to this Section 6.2.2 shall be applied ratably among the Lenders according to
their respective Revolver Commitments. If on the effective date of any reduction in the
Commitments, and after giving effect thereto, an Out-of-Formula Condition exists, the provisions of
Section 5.2.1(iii) hereof shall apply, except that such repayment shall be due immediately upon
such effective date without further notice to or demand upon Borrowers.
6.2.3. Effect of Termination. On the effective date of termination of all of the Commitments by
Agent or by Borrowers, all of the Obligations shall be immediately due and payable, Lenders shall
have no obligation to make any Loans, Issuing Bank shall have no obligation to issue any Letters of
Credit, and each Lender and its Affiliates may terminate any Bank Products (including any services
or products under Cash Management Agreements). All undertakings, agreements, covenants, warranties
and representations of Borrowers contained in the Loan Documents shall survive any such termination
and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the
Loan Documents notwithstanding such termination, in each case, until Full Payment of the
Obligations. Notwithstanding the Full Payment of the Obligations, Agent shall not be required to
terminate its Liens in any of the Collateral unless, with respect to any loss or damage Agent may
incur as a result of the dishonor or return of any Payment Items applied to the Obligations, Agent
shall have received either (i) a written agreement, executed by Borrowers and any Person deemed
financially responsible by Agent whose loans or other advances to Borrowers are used in whole or in
part to satisfy the Obligations, indemnifying Agent and Lenders from any such loss or damage; or
(ii) such monetary reserves and Liens on the Collateral for such period of time as Agent, in its
reasonable discretion, may deem necessary to protect Agent from any such loss or damage. The
provisions of Sections 3.4, 3.7, 3.8, 3.10, 5.4 and 5.8 and this Section 6.2.3 and all obligations
of Borrowers to indemnify Agent or any Lender pursuant to this Agreement or any of the other Loan
Documents, shall in all events survive any termination of the Commitments and Full Payment of the
Obligations.
SECTION 7. COLLATERAL
7.1. Grant of Security Interest. To secure the prompt payment and performance of all of
the Obligations, each Obligor hereby (a) confirms the mortgage, pledge and assignment to Agent, for
the benefit of the Secured Parties of the Collateral under (and as defined in) the Existing Loan
Agreement and the other Existing Loan Documents, and the creation in favor of Agent, for the
benefit of the Secured Parties, under the Existing Loan Agreement and such other Existing Loan
Documents of a continuing Lien in such Collateral, all as security for the Obligations, in each
case solely to the extent such Collateral is subject to the grant set forth in paragraph (b) below
and thus continues to constitute Collateral as defined in this Agreement, and (b) grants to Agent,
for the benefit of Secured Parties, a continuing security interest in and Lien upon the following
Property and interests in Property of such Obligor, whether now owned or existing or hereafter
created, acquired or arising and wheresoever located:
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(ii) |
|
all contracts, documents of title and other Documents that evidence the
ownership of or right to receive or possess, or that otherwise directly relate to, any
Inventory, including contracts and documents that relate to the acquisition or sale or
other disposition of any Inventory; |
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(iii) |
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all rights of an unpaid vendor with respect to Inventory; |
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(iv) |
|
all Accounts and other Receivables (other than Receivables arising from the
sale or other disposition of Real Property, fixtures, Equipment, documents of title or
other receipts covering or evidencing or representing Equipment) and other than
receivables related to any asbestos insurance policies of any Obligor; |
|
(v) |
|
all contracts out of which any Receivable included in the Collateral has arisen
and all rights under each such contract; |
|
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(vi) |
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all Deposit Accounts Collateral; |
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(vii) |
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all Intercompany Loans, however evidenced and whenever made; |
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(viii) |
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all General Intangibles (including Intellectual Property affixed to any Inventory or
used in connection with the sale or marketing thereof), Instruments, Chattel Paper
(including Electronic Chattel Paper), Documents, Letter-of-Credit Rights and Supporting
Obligations, in each case to the extent arising out of, relating to, given in exchange
or settlement for, governing or involving any of the Collateral; |
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(ix) |
|
all cash and Cash Equivalents of any kind, including cash and Cash Equivalents
of any kind (a) at any time deposited with or held by Agent or any other agent under
this Agreement or any other Secured Party, or (b) acquired at any time by an Obligor
with proceeds of any Collateral or proceeds of Loans or other extensions of credit
under this Agreement; |
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(x) |
|
all Commercial Tort Claims; |
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(xi) |
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all rights in or under any business interruption insurance policy, including
all rights to payment thereunder; |
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(xii) |
|
all substitutions for and replacements, products and cash and non-cash
Proceeds of any of the foregoing items of Collateral, including Proceeds of any
insurance policies, claims against third parties, and condemnation or requisition
payments with respect to all or any of the foregoing items of the Collateral; and |
|
(xiii) |
|
all books and records (including all Receivable Records, records relating to
Inventory, and all other books, records, account ledgers, data processing records and
data stored electronically) to the extent evidencing, relating to or referring to any
of the foregoing items of Collateral. |
Agent and each Lender hereby (x) release all Collateral under (and as defined in) the Existing Loan
Agreement and the other Existing Loan Documents not subject to the grant set forth in this Section
7.1 of this Agreement and agree to cooperate with the Obligors in evidencing such release, (y)
waive any failure of any Obligor to pledge any intercompany promissory notes under the Existing
Loan Documents, and (z) acknowledge and agree that the grant set forth in this Section 7.1 of this
Agreement excludes (1) rights under (but not proceeds of) any contract that contains an enforceable
restriction on an Obligors right to grant a security interest to Agent, unless and until such
Obligor shall have obtained consent from the relevant party or parties thereto to the grant of the
security interest, and (2) all Investment Property (including all Equity Interests of any Obligor
or any Subsidiary of any Obligor) and Fixed Assets and all Software and Intellectual Property
embedded in Fixed Assets.
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7.2. Lien on Deposit Accounts. As additional security for the payment and
performance of the Obligations, each Obligor hereby grants to Agent, for the benefit of Secured
Parties, a continuing security interest in and Lien upon all of such Obligors right, title and
interest in and to each Deposit Account of such Obligor and in and to any deposits or other sums at
any time credited to each such Deposit Account, including any sums in any blocked account or any
special lockbox account and in the accounts in which sums are deposited, but excluding (i) Deposit
Accounts solely holding cash collateral permitted as a Lien under Section 10.2.5(viii), (ii)
Deposit Accounts exclusively used for workers compensation programs, payroll, payroll taxes and
other employee wage and benefit payments to or for the benefit of such Obligors employees, and
(iii) Excluded Deposit Accounts. In connection with the foregoing, each Obligor hereby authorizes
and directs each such bank or other depository to pay or deliver to Agent upon its written demand
therefor made at any time during a Cash Dominion Period and without further notice to such Obligor
(such notice being hereby expressly waived), all balances in each Deposit Account maintained by
such Obligor with such depository for application to the Obligations then outstanding, and the
rights given Agent in this Section shall be cumulative with and in addition to Agents other rights
and remedies in regard to the foregoing Property as proceeds of Collateral. Each Obligor hereby
irrevocably appoints Agent as such Obligors attorney-in-fact at any time that an Event of Default
exists to collect any and all such balances to the extent any such payment is not made to Agent by
such bank or other depository after demand thereon is made by Agent pursuant hereto.
7.3. Other Collateral.
7.3.1. Cash Collateral. In addition to the items of Property referred to in Section 7.1
above, the Obligations shall also be secured by the Cash Collateral to the extent provided herein
and all of the other items of Property from time to time described in any of the Security Documents
as security for any of the Obligations.
7.3.2. Commercial Tort Claims. Obligors shall promptly notify Agent in writing upon any
Obligors obtaining a Commercial Tort Claim (other than, for so long as no Default or Event of
Default exists, a Commercial Tort Claim that is less than $1,000,000) after the Closing Date
against any Person and, upon Agents written request, promptly execute such instruments or
agreements and do such other acts or things reasonably deemed appropriate by Agent to confer upon
Agent (for the benefit of Secured Parties) a security interest in each such Commercial Tort Claim.
7.3.3. Certain After-Acquired Collateral. Obligors shall promptly notify Agent in writing
upon any Obligors obtaining any Collateral after the Closing Date consisting of Deposit Accounts
(but excluding (i) Deposit Accounts solely holding cash collateral permitted as a Lien under
Section 10.2.5(viii), (ii) Deposit Accounts exclusively used for workers compensation programs,
payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such
Obligors employees, and (iii) Excluded Deposit Accounts), Letter-of-Credit Rights or Chattel Paper
and, upon Agents request, shall promptly execute such documents and do such other acts or things
(including using use commercially reasonable efforts to cause other Persons to do such other acts
or things) deemed appropriate by Agent to confer upon Agent a duly perfected first priority Lien
upon and (to the extent applicable for the perfection of a Lien) control with respect to such
Collateral; promptly notify Agent in writing upon any Obligors obtaining any Collateral after the
Closing Date consisting of Documents or Instruments and, upon Agents request, shall promptly
execute such documents and do such other acts or things deemed appropriate by Agent to deliver to
it possession of such Documents as are negotiable and such Instruments, and, with respect to
non-negotiable Documents, to have such non-negotiable Documents issued in the name of Agent; and
with respect to Collateral in the possession of a third party, other than certificated securities
and Goods covered by a Document, such Obligor, upon the request of Agent, shall use commercially
reasonable efforts to obtain an acknowledgment from the third party that is in possession of such
Collateral that such third party holds the Collateral for the benefit of Agent.
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7.4. No Assumption of Liability. The security interest granted pursuant to this Agreement
is granted as security only and shall not subject Agent or any Lender to, or in any way alter or
modify, any obligation or liability of Obligors with respect to or arising out of the Collateral.
7.5. Lien Perfection; Further Assurances. Promptly after Agents request therefor,
Obligors shall execute or cause to be executed and deliver to Agent such instruments, assignments,
title certificates or other documents as are necessary under the UCC or other Applicable Law to
perfect (or continue the perfection of) Agents Lien upon the Collateral and shall take such other
action as reasonably may be requested by Agent to give effect to or carry out the intent and
purposes of this Agreement. Unless prohibited by Applicable Law, each Obligor hereby irrevocably
authorizes Agent to execute and file in any jurisdiction any financing statement or amendment
thereto on such Obligors behalf, including financing statements that indicate the Collateral with
equal or lesser detail than as set forth in this Section 7. Each Obligor also hereby ratifies its
authorization for Agent to have filed in any jurisdiction any like financing statement or amendment
thereto if filed prior to the date hereof. The parties agree that a carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any
appropriate office in lieu thereof.
SECTION 8. COLLATERAL ADMINISTRATION
8.1. General Provisions.
8.1.1. Location of Collateral. All tangible items of Collateral, other than Inventory in
transit, shall at all times be kept by Obligors at one or more of the business locations of
Obligors set forth in Schedule 8.1.1 hereto and shall not be moved therefrom, without the prior
written approval of Agent, except that in the absence of an Event of Default and acceleration of
the maturity of the Obligations in consequence thereof, Obligors may (i) make sales or other
dispositions of any Collateral to the extent not prohibited by Section 10.2.9 and (ii) move
Inventory or any record relating to any Collateral to a location in the United States other than
those shown on Schedule 8.1.1 hereto so long as Obligors give Agent notice of such new location in
the next Compliance Certificate required to be delivered to Agent pursuant to Section 10.1.3;
provided, that Obligors shall not be required to provide such notice to Agent with respect to any
new location so long as the Value of Inventory at such location does not at any time exceed
$500,000 and the aggregate Value of Inventory at all such locations does not at any time exceed
$1,000,000. Following the movement of any Inventory to such new location, Obligors shall cooperate
with Agent in connection with the filing of any UCC-1 financing statements and the delivery any
other appropriate documentation (excluding Lien Waivers to the extent not required by the following
sentence) necessary to perfect or continue the perfection of Agents first priority Liens with
respect to such Inventory. Notwithstanding anything to the contrary contained in this Agreement,
Obligors shall not be permitted to keep, store or otherwise maintain any Inventory at any location
(including any location described in Schedule 8.1.1), unless (i) an Obligor is the owner of such
location, (ii) an Obligor leases such location and either the landlord has executed in favor of
Agent a Lien Waiver or, if required by Agent, a Rent Reserve has been established with respect to
such location, (iii) the Collateral consists of Inventory placed with a warehouseman, bailee or
processor, and either (A) Agent has received from such warehouseman, bailee or processor an
acceptable Lien Waiver and an appropriate UCC-1 financing statement has been filed with the
appropriate Governmental Authority in the jurisdiction where such warehouseman, bailee or processor
is located in order to perfect, or to maintain the uninterrupted perfection of, Agents security
interest in such Inventory or (B) if Agent requires, a Rent Reserve has been established with
respect to such location, or (iv) in the case of any location that does not satisfy the
requirements of any of the foregoing clauses (i), (ii) or (iii), the Value
of Inventory at such location does not at any time exceed $500,000 and the aggregate Value of
Inventory at all such locations under this clause (iv) does not at any time exceed
$1,000,000. Notwithstanding anything in this Agreement to the contrary, Agent acknowledges and
agrees that it will not establish a Rent Reserve with respect to any
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location described in Schedule 8.1.1 during the 90-day period beginning on the Closing Date
and ending on June 30, 2011.
8.1.2. Insurance of Collateral; Condemnation Proceeds.
(i) Each Obligor shall pay for and maintain, with financially sound and reputable
insurers having a rating of at least B+ VII or better by Bests Ratings, a publication of
A.M. Best Company (or, in the case of aircraft liability insurance, with its current
insurers or with other insurers reasonably acceptable to Agent), insurance upon all
Collateral, wherever located, covering casualty, hazard, public liability, theft, malicious
mischief, and such other risks and in such amounts as are reasonably satisfactory to Agent.
Schedule 8.1.2 describes all insurance of Obligors in effect on the date hereof and Agent
confirms that the level of insurance set forth on Schedule 8.1.2 is reasonably satisfactory
to it based on the circumstances as of the date hereof. All proceeds payable under each
such policy, to the extent relating to tangible Collateral or business interruption
insurance, shall be payable to Agent for application to the Obligations. Obligors shall
deliver insurance certificates (and, following Agents request, certified copies of
policies) for such policies relating to tangible Collateral or business interruption
insurance to Agent with lenders loss payable endorsements reasonably satisfactory to Agent
naming Agent as sole loss payee, assignee or additional insured, as appropriate. Each
policy of insurance or insurance certificate or endorsement relating to tangible Collateral
or business interruption insurance shall contain a clause requiring the insurer to give not
less than 10 (provided Borrowers shall use their best efforts to procure a clause requiring
the insurer to give not less than 30) days prior written notice to Agent in the event of
cancellation of the policy for any reason whatsoever and a clause specifying that the
interest of Agent shall not be impaired or invalidated by any act or neglect of any Obligor
or the owner of the Property or by the occupation of the premises for purposes more
hazardous than are permitted by said policy. If any Obligor fails to provide and pay for
such insurance, Agent may, at its option, but shall not be required to, procure the same and
charge Obligors therefor. Each Obligor agrees to deliver to Agent, upon written request,
true copies of all reports made in any reporting forms to property insurance companies. For
so long as no Event of Default exists, each Obligor shall have the right to settle, adjust
and compromise any claim with respect to any insurance maintained by such Obligor with
respect to the Collateral provided that all proceeds thereof are applied in the manner
specified in this Agreement. At any time that an Event of Default exists, Agent alone shall
be authorized to settle, adjust and compromise such property insurance claims, and Agent
shall have all rights and remedies with respect to such policies of property insurance as
are provided for in this Agreement and the other Loan Documents.
(ii) Any proceeds of insurance referred to in this Section 8.1.2 (other than proceeds
from any workers compensation or D&O insurance), to the extent relating to Collateral, and
any condemnation awards that are paid to Agent in connection with a condemnation of any of
the Collateral shall be paid to Agent and applied first to the payment of the Revolver Loans
and then to any other Obligations outstanding; provided, however, that if an
Event of Default exists on the date of Agents receipt thereof, Agent shall apply such
proceeds to the Obligations in the order of application provided in Section 5.5.1. Proceeds
from any policy of business interruption insurance may be used by Obligors in the Ordinary
Course of Business, provided that at the time of such use no Default or Event of Default
exists and the insured loss has not resulted in (and would not reasonably be expected to
result in) any Material Adverse Effect, but otherwise may be applied by Agent to the payment
of the Obligations in such order of application as Agent may elect in its discretion
(subject to the provisions of Section 5.5.1).
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(iii) Any proceeds of insurance and condemnation proceeds related to Fixed Assets may
be used by Borrowers for such purposes as Borrowers shall determine and are permitted under
this Agreement, and such insurance proceeds may be pledged by Borrowers as part of any Fixed
Asset Lien permitted hereunder.
8.1.3. Protection of Collateral. All expenses of protecting, storing, warehousing, insuring,
handling, maintaining and shipping any Collateral, all Taxes imposed under any Applicable Law on
any of the Collateral or in respect of the sale thereof, and all other payments required to be made
by Agent to any Person to realize upon any Collateral shall be borne and paid by Obligors. Agent
shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for
any loss or damage thereto or for any diminution in the value thereof (except for reasonable care
in the custody thereof while any Collateral is in Agents actual possession), or for any act or
default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same
shall be at Obligors sole risk.
8.1.4. Defense of Title to Collateral. Each Obligor shall at all times defend such Obligors
title to the Collateral and Agents Liens therein against all Persons and all claims and demands
whatsoever other than Permitted Liens.
8.2. Administration of Accounts.
8.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate and complete
records of its Accounts and all payments and collections thereon and shall submit to Agent on such
periodic basis as Agent shall reasonably request a sales and collections report for the preceding
period, in form reasonably satisfactory to Agent. Each Borrower shall also provide to Agent on or
before the 20th day following each fiscal month end, a detailed aged trial balance of all Accounts
existing as of the last day of the preceding fiscal month, specifying the names, face value and
aging classification of each Account (Schedule of Accounts), and, upon Agents request
therefor, each Account Debtors address and the invoice and due dates for each Account, copies of
proof of delivery and a copy of all documents, including repayment histories and present status
reports relating to the Accounts so scheduled and such other matters and information relating to
the status of then existing Accounts as Agent shall reasonably request. In addition, if Accounts
in an aggregate face amount in excess of $1,000,000 cease to be Eligible Accounts in whole or in
part at any time while there are any Aggregate Revolver Outstandings hereunder, Borrowers shall
notify Agent of such occurrence promptly (and in any event within 2 Business Days) after any Senior
Financial Officer having obtained knowledge of such occurrence and the applicable Borrowing Base
shall thereupon be adjusted to reflect such occurrence. Each Borrower shall, upon Agents request,
deliver to Agent copies of invoices or invoice registers related to all of its Accounts.
8.2.2. Discounts, Disputes and Returns. If any Borrower grants any discounts (other than
discounts for prompt payment in the Ordinary Course of Business), allowances or credits that are
not shown on the face of the invoice for the Account involved, such Borrower shall report such
discounts (other than discounts for prompt payment in the Ordinary Course of Business), allowances
or credits, as the case may be, to Agent as part of the next required Schedule of Accounts. If any
amounts due and owing in excess of $1,000,000 are in dispute between any Borrower and any Account
Debtor, or if any returns are made in excess of $1,000,000 with respect to any Accounts owing from
an Account Debtor, in each case at any time while there are any Aggregate Revolver Outstandings
hereunder, such Borrower shall provide Agent with written notice thereof at the time of submission
of the next Schedule of Accounts, explaining in reasonable detail the reason for the dispute or
return, all claims related thereto and the amount in controversy.
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8.2.3. Taxes. If an Account of any Borrower includes a charge for any Taxes payable to any
Governmental Authority, Agent is authorized, in its discretion, to pay the amount thereof to the
proper taxing authority for the account of such Borrower and to charge Borrowers therefor;
provided, however, that neither Agent nor Lenders shall be liable for any Taxes that may be due by
Borrowers.
8.2.4. Account Verification. Whether or not a Default or an Event of Default exists, Agent
shall have the right at any time, in the name of Agent, any designee of Agent or any Borrower to
verify the validity, amount or any other matter relating to any Accounts of such Borrower by mail,
telephone, telegraph or otherwise. So long as no Default or Event of Default exists, verifications
of Accounts shall be conducted at the sole cost and expense of Agent and the Lenders. Borrowers
shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such
verification process.
8.2.5. Maintenance of Dominion Account. Each Borrower shall establish and maintain a
Dominion Account pursuant to a lockbox or other arrangement reasonably acceptable to Agent with
BofA or such other bank as may be selected by Borrowers and be reasonably acceptable to Agent.
Each Borrower shall issue to each such lockbox bank an irrevocable letter of instruction directing
such bank to deposit all payments or other remittances received in the lockbox to the applicable
Dominion Account. Each Borrower shall enter into agreements, in form satisfactory to Agent, with
each bank at which a Dominion Account is maintained by which such bank shall, at all times during a
Cash Dominion Period, transfer to the applicable Payment Account all Payment Items and monies
deposited to such Dominion Account not later than the next Business Day following the Business Day
on which each such deposit is made. All balances in each Dominion Account shall be subject to
Agents Lien. Each Borrower shall obtain the agreement (in favor of and in form and content
reasonably satisfactory to Agent) by each bank at which a Dominion Account is maintained to waive
any offset rights against the funds deposited into such Dominion Account, except offset rights in
respect of charges incurred in the administration of such Dominion Account. Neither Agent nor
Lenders assume any responsibility to Borrowers for such lockbox arrangement or Dominion Account by
virtue of this Agreement, including any claim of accord and satisfaction or release with respect to
deposits accepted by any bank thereunder.
8.2.6. Collection of Accounts and Proceeds of Collateral. To expedite collection of
Accounts, each Borrower shall endeavor to make collection of such Borrowers Accounts for Agent and
Lenders and, in connection therewith, shall use commercially reasonable efforts to keep in full
force and effect any Supporting Obligation or collateral security relating to each such Account.
Each Borrower shall (i) request in writing and otherwise take such reasonable steps to ensure that
all Account Debtors forward payment directly to the applicable Dominion Account (or lockboxes
related to such Dominion Account), and (ii) deposit promptly, and in any event no later than the
first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar
items of payment relating to or constituting payments made in respect of any and all Collateral
(whether or not otherwise delivered to a lockbox) into such Dominion Account; provided
that, (A) with respect to the proceeds of Collateral resulting from the sale or other
disposition of (x) Property permitted pursuant to clause (xi) of the definition of Permitted Asset
Disposition, or (y) an Obligors business unit or line of business permitted pursuant to the terms
of this Agreement, in either case, Borrowers shall only be required to remit such proceeds to a
Dominion Account (or lockbox account related to such Dominion Account) to the extent there are
Aggregate Revolver Outstandings (but excluding standby Letters of Credit issued by Issuing Bank),
and (B) Borrowers shall not be required to remit proceeds of Collateral to a Dominion Account (or
other lockbox account related to such Dominion Account), if (i) the Deposit Account into which such
proceeds are deposited maintains at all times a balance equal to or less than $500,000 (each such
Deposit Account is referred to herein as an Excluded Deposit Account), (ii) the aggregate
balance maintained in all Excluded Deposit Accounts is not greater than $2,500,000, and (iii) no
Default or Event of Default exists. All Payment Items received by any Borrower in respect of its
Accounts, together with the proceeds of any other Collateral, shall be held by such Borrower as
trustee of an express trust for Agents and Lenders
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benefit; subject to the preceding sentence, each Borrower shall immediately deposit same in
kind in the applicable Dominion Account; and Agent may remit such proceeds to Lenders for
application to the Obligations in the manner authorized by this Agreement. Agent retains the right
at all times that a Default or an Event of Default exists to notify Account Debtors of any Borrower
that Accounts have been assigned to Agent, to collect Accounts directly in its own name (and, in
connection therewith, to charge to Borrowers the collection costs and expenses incurred by Agent,
including reasonable out-of-pocket attorneys fees). At any time an Event of Default exists, Agent
shall have the right to settle or adjust all disputes and claims directly with the Account Debtor
and to compromise the amount or extend the time for payment of any Accounts upon such terms and
conditions as Agent may deem advisable, and to charge the deficiencies, costs and expenses thereof,
including reasonable out-of-pocket attorneys fees, to Borrowers.
8.3. Administration of Inventory.
8.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate and complete
records of its Inventory (including records showing the cost thereof and daily withdrawals
therefrom and additions thereto) and shall furnish Agent inventory reports respecting such
Inventory in form and detail reasonably satisfactory to Agent at such times as Agent may request,
but so long as no Default or Event of Default exists, no more frequently than once each month.
Each Borrower shall, at its own expense, conduct a physical inventory no less frequently than
annually (and on a more frequent basis if requested by Agent when an Event of Default exists) and
periodic cycle counts consistent with such Borrowers historical practices and shall provide to
Agent, upon request, a report based on each such physical inventory and cycle count promptly after
completion thereof, together with such supporting information as Agent shall reasonably request.
Agent may participate in and observe each physical count of inventory, which participation shall be
at Borrowers expense at any time that an Event of Default exists.
8.3.2. Returns of Inventory. No Borrower shall return any of its Inventory to a supplier or
vendor thereof, or any other Person, whether for cash, credit against future purchases or then
existing payables, or otherwise, unless (i) such return is in the Ordinary Course of Business of
such Borrower; (ii) no Default or Event of Default exists or would result therefrom; (iii) the
return of such Inventory will not result in an Out-of-Formula Condition; (iv) if there are any
Aggregate Revolver Outstandings hereunder at such time, such Borrower promptly notifies Agent
thereof if the aggregate Value of all Inventory returned in any month exceeds $1,000,000; and (v)
any payments received by such Borrower in connection with any such return are promptly turned over
to Agent for application to the Obligations in accordance with the terms of this Agreement.
8.3.3. Acquisitions and Sale of Inventory. No Borrower shall acquire or accept any Inventory
on consignment or approval unless such Inventory is segregated from such Borrowers other owned
Inventory and is marked in a manner designating the true owner thereof. Each Borrower will use its
best efforts to insure that all Inventory that is produced in the United States will be produced in
accordance with the FLSA. No Borrower shall sell any Eligible Inventory on a consignment, sale and
return, sale on approval or other similar basis.
8.3.4. Maintenance of Inventory. Borrowers shall produce, use, store and maintain all
Inventory with all reasonable care and caution in accordance, in all material respects, with
applicable standards of any insurance and in conformity, in all material respects, with Applicable
Law and will maintain current rent payments (within applicable grace periods provided for in
leases) at all locations at which any Inventory with a book value in excess of $500,000 is
maintained or stored.
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8.4. Administration of Deposit Accounts.
Each Obligor represents that, as of the Closing Date, Schedule 8.4 (as the same may be amended
or supplemented from time to time) sets forth all of the Deposit Accounts maintained by each
Obligor, including Deposit Accounts into which all Payment Items relating to any Collateral will be
deposited; each Obligor is the sole account holder of each such Deposit Account and is not aware of
any Person (other than Agent) having either dominion or control (within the meaning of Section
9-104 of the UCC) over any such Deposit Account or any property deposited therein (other than any
such control that has been released or terminated on or before the Closing Date and control arising
by operation of law in favor of the depository bank in which such Deposit Account is maintained);
and each Obligor has taken all actions required to establish Agents control (within the meaning
of Section 9-104 of the UCC) over all Deposit Accounts (other than (i) Deposit Accounts solely
holding cash collateral permitted as a Lien under Section 10.2.5(viii), (ii) Deposit Accounts
exclusively used for workers compensation programs, payroll, payroll taxes and other employee wage
and benefit payments to or for the benefit of such Obligors employees, and (iii) Excluded Deposit
Accounts). Each Obligor shall promptly notify Agent of any additional Deposit Account opened and
any Deposit Account that is closed.
8.5. Borrowing Base Certificates. Borrowers shall deliver to Agent and each Lender a
Borrowing Base Certificate (a) on or before the fifteenth (15th) day following each fiscal month
end, prepared as of the close of business on the last day of the previous fiscal month, at any time
that Average Availability for the previous fiscal month is equal to or greater than an amount equal
to the greater of (i) the lesser of 20% of (A) the Borrowing Base or (B) the Commitments, or (ii)
$20,000,000, and (b) on a more frequent basis and on such days as requested by Agent, at any time
during a Borrowing Base Certificate Trigger Period. All calculations of Availability in connection
with any Borrowing Base Certificate shall originally be made by Borrowers and certified by a Senior
Officer to Agent, provided that Agent shall have the right to review and adjust, in
the exercise of its Credit Judgment, any such calculation (i) to reflect its reasonable estimate of
declines in value of any of the Collateral described therein and (ii) to the extent that such
calculation is not in accordance with this Agreement or does not accurately reflect the amount of
the Availability Reserve. In no event shall the Borrowing Base or Availability on any date be
deemed to exceed the amount of the Borrowing Base or Availability shown on the Borrowing Base
Certificate last received by Agent prior to such date, as the calculation in such Borrowing Base
Certificate may be adjusted from time to time by Agent as herein authorized.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1. General Representations and Warranties. To induce Agent and Lenders to enter into
this Agreement and to make available the Commitments, each Obligor warrants and represents to Agent
and Lenders that:
9.1.1. Organization and Qualification. Each Obligor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization. Each Obligor
is duly qualified and is authorized to do business as a foreign corporation in each state or
jurisdiction listed on Schedule 9.1.1 hereto and is in good standing in all states and
jurisdictions in which the failure of such Obligor to be so qualified would reasonably be expected
to have a Material Adverse Effect.
9.1.2. Power and Authority. Each Obligor is duly authorized and empowered to enter into,
execute, deliver and perform this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and performance of this Agreement and each of the other Loan
Documents have been duly authorized by all necessary corporate, limited liability company or
partnership action and do not and will not (i) require any consent or approval of any of the
holders of the Equity Interests of any Obligor or any of its Subsidiaries other than those obtained
on or prior to the date hereof; (ii) contravene
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the Organic Documents of any Obligor or any of its Subsidiaries; (iii) violate, or cause any
Obligor or any of its Subsidiaries to be in default under, any provision of any Applicable Law,
order, writ, judgment, injunction, decree, determination or award in effect having applicability to
any Obligor or any of its Subsidiaries; (iv) result in a breach of or constitute a default under
any indenture or loan or credit agreement or any other material agreement, lease or instrument to
which any Obligor or any of its Subsidiaries is a party or by which it or its Properties may be
bound or affected; or (v) result in, or require, the creation or imposition of any Lien (other than
Permitted Liens) upon or with respect to any of the Properties now owned or hereafter acquired by
any Obligor or any of its Subsidiaries.
9.1.3. Legally Enforceable Agreement. This Agreement is, and each of the other Loan
Documents when delivered under this Agreement will be, a legal, valid and binding obligation of
each Obligor signatory thereto enforceable against each of them in accordance with the respective
terms of such Loan Documents, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general application affecting the
enforcement of creditors rights generally or by general equitable principles.
9.1.4. Capital Structure. As of the date hereof, Schedule 9.1.4 hereto states (i) the
correct name of each Obligor, its jurisdiction of incorporation and, except with respect to Parent,
the percentage of its Equity Interests having voting powers owned by each Person, (ii) the name of
each Obligors corporate Affiliates and the nature of the affiliation and (iii) the number of
authorized and issued Equity Interests (and treasury shares) of each Obligor and its Subsidiaries.
Each Obligor has good title to all of the shares it purports to own of the Equity Interests of each
of its Subsidiaries, free and clear in each case of any Lien other than Permitted Liens. All such
Equity Interests have been duly issued and are fully paid and non-assessable. Since the date of
the financial statements of Obligors referred to in Section 9.1.9 through the date hereof, Obligors
have not made, or obligated themselves to make, any Distribution, other than Upstream Payments or
Distributions in connection with the operation of the Obligors cash management system in the
Ordinary Course of Business. There are no outstanding options to purchase, or any rights or
warrants to subscribe for, or any commitments or agreements to issue or sell, or any Equity
Interests or obligations convertible into, or any powers of attorney relating to, shares of the
capital stock of any Obligor (other than Parent) or any of its Subsidiaries. Except as set forth
on Schedule 9.1.4 hereto and other than as set forth in the applicable Obligors Organic Documents,
there are no outstanding agreements or instruments binding upon the holders of any Obligors Equity
Interests relating to the ownership of its Equity Interests; provided that, no
representation or warranty is made in this sentence by any Obligor with respect to any outstanding
agreements or instruments binding upon the holders of the Equity Interests in Parent.
9.1.5. Corporate Names. During the 5-year period preceding the date of this Agreement, no
Obligor has been known as or used any corporate, fictitious or trade names except those listed on
Schedule 9.1.5 hereto. Except as set forth on Schedule 9.1.5, during the 5-year period preceding
the date of this Agreement no Obligor has been the surviving corporation of a merger or
consolidation or acquired all or substantially all of the assets of any Person.
9.1.6. Business Locations; Agent for Process. As of the date hereof, the chief executive
office and other places of business of each Obligor are as listed on Schedule 8.1.1 hereto. During
the 5-year period preceding the date of this Agreement, no Obligor has had an office or place of
business other than as listed on Schedule 8.1.1, other than sales offices and other similar
locations to the extent that the Value of Inventory at any such location did not at any time exceed
$100,000 and the aggregate Value of Inventory at all such locations did not at any time exceed
$500,000. Except as shown on Schedule 8.1.1 on the date hereof, no Inventory of any Obligor is
stored with a bailee, warehouseman, processor or similar Person or consigned to any Person, other
than any such location not shown on Schedule 8.1.1 to the extent that the Value of Inventory at
such location does not exceed $100,000 on the
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date hereof and the aggregate Value of Inventory at all such locations not shown on Schedule 8.1.1
does not exceed $500,000 on the date hereof.
9.1.7. Title to Properties; Priority of Liens. Each Obligor and each of its Subsidiaries has
good and marketable title to and fee simple ownership of, or valid and subsisting leasehold
interests in, all of its material real Property, and good title to all of its material personal
Property, including all Property reflected in the financial statements referred to in Section 9.1.9
or delivered pursuant to Section 10.1.3 (except as disposed of since the date thereof as permitted
by the terms of this Agreement (or the Existing Loan Agreement for periods prior to the date
hereof)), in each case free and clear of all Liens except Permitted Liens. Each Obligor has paid
or discharged, and has caused each of its Subsidiaries to pay and discharge, all lawful claims
which, if unpaid, would reasonably be expected to become a Lien against any Properties of such
Obligor or any such Subsidiary that is not a Permitted Lien. The Liens granted to Agent pursuant
to this Agreement and the other Security Documents are duly perfected, first priority Liens,
subject only to those Permitted Liens that are expressly permitted by the terms of this Agreement
to have priority over the Liens of Agent; provided, that, no representation or warranty is made by
any Obligor as to the perfection of Agents Lien in any Pledged Collateral (as defined in any
Pledge Agreement) under foreign law.
9.1.8. Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all
statements and representations made by Borrowers with respect to any Account. Unless otherwise
indicated in writing to Agent or specifically excluded by Borrowers in their calculation of a
Borrowing Base in any Borrowing Base Certificate, Borrowers make each of the following warranties
to the knowledge of the Senior Financial Officers (subject to the limitation in the last paragraph
of this Section 9.1.8) with respect to each Account:
(i) It is genuine and in all respects what it purports to be, and it is not evidenced
by a judgment;
(ii) It arises out of a completed, bona fide sale and delivery of goods or rendition of
services by a Borrower in the Ordinary Course of Business and substantially in accordance
with the terms and conditions of all purchase orders, contracts or other documents relating
thereto and forming a part of the contract between a Borrower and the Account Debtor;
(iii) It is for a sum certain maturing as stated in the invoice covering such sale or
rendition of services, a copy of which has been furnished or is available to Agent on
request;
(iv) Such Account, and Agents security interest therein, is not subject to any offset
(except claims for offsets netted out in the computation of Eligible Accounts included in
any Borrowing Base Certificate), Lien (other than Permitted Liens), deduction, defense,
dispute or counterclaim except for conditions in the Ordinary Course of Business or claims
where the amount in controversy is immaterial, and each such Account is absolutely owing to
a Borrower and is not contingent in any respect or for any reason;
(v) The contract under which such Account arose does not condition or restrict a
Borrowers right to assign to Agent the right to payment thereunder unless such Borrower has
obtained the Account Debtors consent to such collateral assignment or complied with any
conditions to such assignment (regardless of whether under the UCC or other Applicable Law
any such restrictions are ineffective to prevent the grant of a Lien upon such Account in
favor of Agent);
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(vi) Such Borrower has not made any agreement with any Account Debtor thereunder for
any extension, compromise, settlement or modification of any such Account or any deduction
therefrom, except discounts, allowances, credits or rebates which are granted by a Borrower
for prompt payment or otherwise in the Ordinary Course of Business and, except with respect
to discounts for prompt payment, which are reflected in the calculation of the net amount of
each respective invoice related thereto and are reflected in the Schedules of Accounts
submitted to Agent pursuant to Section 8.2.1 (or accounted for in the computation of
Eligible Accounts included in the Borrowing Base); and
(vii) There are no facts, events or occurrences which are reasonably likely to (A)
impair the validity or enforceability of such Account or to (B) reduce the amount payable
thereunder (other than discounts for prompt payment in the Ordinary Course of Business) from
the face amount of the invoice and statements delivered to Agent with respect thereto.
For purposes of determining whether an Account is an Eligible Account, the foregoing warranties are
made regardless of the knowledge of any Senior Financial Officer with respect to an event or
condition that would constitute a breach of any of the foregoing warranties. For all other
purposes of this Agreement (including the purpose of determining whether an Event of Default exists
hereunder), the foregoing warranties (a) are only made to the extent of the knowledge of the Senior
Financial Officers and (b) are not made to the extent there are no Aggregate Revolver Outstandings
at any time any such Account is included in the Borrowing Base or the aggregate face amount of the
applicable Accounts in breach of this representation does not exceed $1,000,000.
9.1.9. Financial Statements; Fiscal Year. The Consolidated and consolidating balance sheets
of Obligors and such other Persons described therein (including the accounts of all Subsidiaries of
Obligors for the respective periods during which a Subsidiary relationship existed) as of December
31, 2010, and the related statements of income, changes in stockholders equity, and changes in
financial position for the periods ended on such dates, have been prepared in accordance with GAAP,
and present fairly, in all material respects, the financial positions of Obligors and such Persons
at such dates and the results of Obligors operations for such periods. Since December 31, 2010,
there has been no material adverse change in the condition, financial or otherwise, of Obligors and
such other Persons, taken as a whole, as shown on the Consolidated balance sheet as of such date.
9.1.10. Full Disclosure. None of the representations, warranties or statements made by Parent
or any Obligor in the Loan Documents as of the date such representations, warranties and statements
are made or deemed made, taken as a whole, and none of the statements contained in any exhibit,
report, statement or certificate furnished by or on behalf of Parent or any Obligor in connection
with the Loan Documents (including any offering and disclosure materials delivered by or on behalf
of Parent or any Borrower to Lenders prior to the Closing Date), in each case, as of the date made
and taken as a whole, contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made or delivered.
9.1.11. Solvent Financial Condition. Each Obligor is now Solvent and, after giving effect to
the Loans to be made hereunder, the LC Obligations to be incurred in connection herewith and the
consummation of the other transactions described in the Loan Documents, will be Solvent.
9.1.12. Surety Obligations. Except as set forth on Schedule 9.1.12 on the date hereof, no
Obligor is obligated as surety or indemnitor under any surety or similar bond issued or entered
into to assure payment, performance or completion of performance of any undertaking or obligation
of any Person.
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9.1.13. Taxes. The FEIN of each of each Obligor as of the date hereof is as shown on Schedule
9.1.13. Each Obligor and each of its Subsidiaries has filed all federal and other material state
and local tax returns and other reports it is required by law to file and has paid, or made
provision for the payment of, all federal and other material Taxes upon it, its income and
Properties as and when such Taxes are due and payable, except to the extent being Properly
Contested. The provision for Taxes on the books of each Obligor and each of its Subsidiaries are
adequate, in all material respects, for all years not closed by applicable statutes, and for its
current Fiscal Year.
9.1.14. Brokers. There are no claims against any Obligor for brokerage commissions, finders
fees or investment banking fees in connection with the transactions contemplated by this Agreement
or any of the other Loan Documents.
9.1.15. Intellectual Property. Each Obligor and each of its Subsidiaries owns or has the
lawful right to use all Intellectual Property necessary for the present and planned future conduct
of its business without any conflict with the rights of others, except as would not reasonably be
expected to have a Material Adverse Effect, and there is no objection to, or pending (or, to such
Obligors knowledge, threatened) Intellectual Property Claim with respect to, any Obligors or any
of its Subsidiaries right to use any such Intellectual Property and such Obligor is not aware of
any grounds for challenge or objection thereto, except in any such case as would not reasonably be
expected to have a Material Adverse Effect; and, except as may be disclosed on Schedule 9.1.15, as
of the date hereof no Obligor pays any royalty or other compensation to any Person for the right to
use any Intellectual Property in connection with the manufacturing, marketing, sale or distribution
of Inventory. As of the date hereof, all registered United States patents, trademarks, service
marks, trade names and copyrights (and any licenses related thereto) of each Obligor are listed on
Schedule 9.1.15.
9.1.16. Governmental Approvals. Each Obligor and each of its Subsidiaries has, and is in good
standing with respect to, all Governmental Approvals necessary to continue to conduct its business
as heretofore or proposed to be conducted by it and to own or lease and operate its Properties as
now owned or leased by it, except as would not reasonably be expected to have a Material Adverse
Effect.
9.1.17. Compliance with Laws. Except as set forth on Schedule 9.1.17, each Obligor and each
of its Subsidiaries has duly complied with, and its Properties, business operations and leaseholds
are in compliance in all material respects with, the provisions of all Applicable Law, except to
the extent that any such noncompliance would not reasonably be expected to have a Material Adverse
Effect. No Inventory has been produced in violation of the FLSA in any material respect.
9.1.18. Burdensome Contracts. No Obligor nor any of its Subsidiaries is a party or subject to
any contract, agreement, or charter or other corporate restriction, which has or could be
reasonably expected to have a Material Adverse Effect. No Obligor nor any of its Subsidiaries is a
party or subject to any Restrictive Agreements, except for Permitted Restrictive Agreements and as
set forth on Schedule 9.1.18, none of which prohibit the execution or delivery of any of the Loan
Documents by any Obligor or the performance by any Obligor of its obligations under any of the Loan
Documents to which it is a party, in accordance with the terms of such Loan Documents.
9.1.19. Litigation. Except as set forth on Schedule 9.1.19, there are no actions, suits,
proceedings or investigations pending or, to the knowledge of any Obligor, threatened on the date
hereof against or affecting any Obligor or any of its Subsidiaries, or the business, operations,
Properties, profits or condition of any Obligor or any of its Subsidiaries, (i) which relate to any
of the Loan Documents or any of the transactions contemplated thereby or (ii) which, if determined
adversely to any Obligor or any of its Subsidiaries, would reasonably be expected to have a
Material Adverse Effect. No Obligor nor any
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of its Domestic Subsidiaries is in default on the date hereof with respect to any order, writ,
injunction, judgment, decree or rule of any court, Governmental Authority or arbitration board or
tribunal specifically applicable thereto.
9.1.20. No Defaults. No event has occurred and no condition exists which would, upon or
immediately after the execution and delivery of this Agreement or any Obligors performance
hereunder, constitute a Default or an Event of Default. No Obligor nor any of its Subsidiaries is
in default, and no event has occurred and no condition exists which constitutes or which with the
passage of time or the giving of notice or both would constitute a default, under any Material
Contract or in the payment of any Debt of an Obligor or a Subsidiary to any Person for Money
Borrowed, in each case which would reasonably be expected to have a Material Adverse Effect.
9.1.21. Leases. Schedule 9.1.21 is a complete listing of each capitalized and operating lease
of each Obligor on the date hereof that constitutes a Material Contract. Each Obligor and each of
its Subsidiaries is in substantial compliance with all of the terms of each of its respective
capitalized and operating leases, except as would not reasonably be expected to have a Material
Adverse Effect, and there is no basis upon which the lessors under any such leases could terminate
same or declare such Obligor or any of its Subsidiaries in default thereunder, except as would not
reasonably be expected to have a Material Adverse Effect.
9.1.22. ERISA. Each Obligor and each of its Subsidiaries is in full compliance with the
requirements of ERISA and the regulations promulgated thereunder with respect to each Plan, except
as would not reasonably be expected to have a Material Adverse Effect. No Obligor nor any of its
Subsidiaries has any withdrawal liability in connection with a Multiemployer Plan.
9.1.23. Trade Relations. As of the date hereof, to Obligors knowledge, there exists no
actual or threatened termination, cancellation or limitation of, or any materially adverse
modification or change in, the business relationship between any Obligor and any customer or any
group of customers whose purchases individually or in the aggregate are material to the business of
such Obligor, or with any material supplier or group of suppliers, and, as of the date hereof, to
Obligors knowledge, there exists no condition or state of facts or circumstances which is
reasonably likely to have a Material Adverse Effect or prevent any Obligor from conducting such
business after the consummation of the transactions contemplated by this Agreement in substantially
the same manner in which it has heretofore been conducted.
9.1.24. Labor Relations. Except as described on Schedule 9.1.24, no Obligor is on the date
hereof a party to or bound by any collective bargaining agreement. On the date hereof, there are
no material grievances, disputes or controversies with any union or any other organization of any
Obligors employees, or, to any Obligors knowledge, any threats of strikes, work stoppages or any
asserted pending demands for collective bargaining by any union or organization affecting any
Obligor.
9.1.25. Not a Regulated Entity. No Obligor is (i) an investment company or a person
directly or indirectly controlled by or acting on behalf of an investment company within the
meaning of the Investment Company Act of 1940; or (ii) subject to regulation under the Federal
Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law
regarding its authority to incur Debt.
9.1.26. Margin Stock. No Obligor nor any of its Subsidiaries is engaged, principally or as
one of its important activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.
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9.1.27. Anti-Terrorism Laws.
(i) General. No Obligor nor any of its Affiliates is in violation in any material
respect of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
(ii) Executive Order No. 13224.
(a) No Obligor nor any of its Affiliates is a Blocked Person;
(b) No Obligor nor any of its Affiliates (1) conducts any business or
engages in making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person, (2) has any of its assets in a
Blocked Person, (3) deals in, or otherwise engages in any transaction
relating to, any Property or interests in Property blocked pursuant to
Executive Order No. 13224, or (4) derives any of its operating income from
investments in or transactions with a Blocked Person.
9.1.28. Payable Practices. No Obligor nor any of its Domestic Subsidiaries has made any
material change in its historical accounts payable practices from those in effect immediately prior
to the Closing Date.
9.1.29. Not the Holder of Plan Assets. No Obligor is an entity deemed to hold plan assets
within the meaning of 29 C.F.R. §2510.3-101 of an employee benefit plan (as defined in Section
3(3) of ERISA) that is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Internal Revenue Code), and neither the execution of this Agreement nor the funding of
any Loans gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code.
9.1.30. Tax Matters. The representations and warranties of Parent in support of the
Tax Opinion (as defined in the Tax Matters Agreement) are true and correct in all material
respects as of the Closing Date.
9.2. Reaffirmation of Representations and Warranties. Each representation and warranty
contained in this Agreement and the other Loan Documents shall be deemed to be made on the Closing
Date and reaffirmed, in all material respects, by each Obligor on each day that Borrowers request
or are deemed to have requested any Loan, Letter of Credit or other extension of credit hereunder,
except for changes in the nature of an Obligors or, if applicable, any Subsidiarys business or
operations that may occur after the date hereof in the Ordinary Course of Business so long as Agent
has consented to such changes or such changes are not violative of any provision of this Agreement.
Notwithstanding the foregoing, representations and warranties which by their terms are applicable
only as of a specific date shall be deemed made only at and as of such date.
9.3. Survival of Representations and Warranties. All representations and warranties of
Obligors contained in this Agreement or any of the other Loan Documents shall survive the
execution, delivery and acceptance thereof by Agent, Lenders and the parties thereto and the
closing of the transactions described therein or related thereto.
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SECTION 10. COVENANTS AND CONTINUING AGREEMENTS
10.1. Affirmative Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, each Obligor covenants that it shall and shall
cause each Subsidiary to:
10.1.1. Visits and Inspections. Permit representatives of Agent from time to time, as often
as may be reasonably requested, but only during normal business hours and (except when a Default or
Event of Default exists) upon reasonable prior notice to an Obligor, to visit and inspect the
Properties of any such Obligor and each of its Subsidiaries, inspect, audit and make extracts from
such Obligors and each Subsidiarys books and records, and discuss with its officers, employees,
agents, advisors and independent accountants such Obligors and each Subsidiarys business,
financial condition, assets, prospects and results of operations. Lenders may participate in any
such visit or inspection, at their own expense (unless a Default or Event of Default exists, in
which event Obligors shall promptly reimburse all such expenses). Agent shall have the right to
(but not the obligation to request or obtain) an Orderly Liquidation Value Appraisal if the
Aggregate Revolver Outstandings at any time exceed an amount equal to 50% of the Borrowing Base.
Neither Agent nor any Lender shall have any duty to any Borrower to make any inspection, nor to
share any results of any inspection, appraisal or report with any Borrower, and shall not incur any
liability by reason of its failure to conduct or delay in conducting such inspections. Borrowers
acknowledge that all inspections, appraisals and reports are prepared by Agent and Lenders for
their purposes, and Borrowers shall not be entitled to rely upon them.
10.1.2. Notices. Notify Agent in writing, promptly after an Obligors obtaining knowledge
thereof, of (i) the commencement of any litigation affecting any Obligor, whether or not the claims
asserted in such litigation are considered by Obligors to be covered by insurance, and of the
institution of any administrative proceeding, in each case to the extent that such litigation or
proceeding would reasonably be expected to have a Material Adverse Effect; (ii) any labor dispute
to which any Obligor may become a party, any pending or threatened strikes or walkouts relating to
any of its plants or other facilities, and the expiration of any labor contract to which it is a
party or by which it is bound, in each case which would reasonably be expected to have a Material
Adverse Effect; (iii) any material default by any Obligor under, or termination of, any Material
Contract or any note, indenture, loan agreement, mortgage, lease, deed, guaranty or other similar
agreement relating to any Debt of such Obligor exceeding $7,500,000; (iv) the existence of any
Default or Event of Default; (v) any judgment against any Obligor in an amount exceeding
$7,500,000; (vi) the assertion by any Person of any Intellectual Property Claim against an Obligor
or any of its Subsidiaries, the adverse resolution of which would reasonably be expected to have a
Material Adverse Effect; (vii) any violation or asserted violation by any Obligor of any Applicable
Law (including ERISA, OSHA, FLSA, or any Environmental Laws), the adverse resolution of which would
reasonably be expected to have a Material Adverse Effect; (viii) any Environmental Release by an
Obligor or on any Property owned or occupied by an Obligor which is reasonably likely to give rise
to liability in excess of $7,500,000; (ix) the discharge of Obligors independent accountants or
any withdrawal of resignation by such independent accountants from their acting in such capacity;
and (x) any investigation of any Obligor by the SEC or the U.S. Department of Justice or, to the
extent any such investigation would reasonably be expected to have a Material Adverse Effect, by
any other Governmental Authority. Furthermore, Obligors shall provide Agent with thirty (30) days
prior written notice of an Obligors intent to (A) change its name, (B) conduct business under any
new fictitious name, except in connection with Permitted Mergers/Liquidations, or (C) change its
FEIN, organizational identification number or state of organization, except in connection with
Permitted Mergers/Liquidations. Furthermore, Obligors shall notify Agent promptly upon any Obligor
other than Parent (i) being required to file reports under Section 15(b) of the Securities Exchange
Act of 1934, (ii) registering securities under Section 12 of the Securities Exchange Act of 1934 or
(iii) filing a registration statement under the Securities Act of 1933.
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10.1.3. Financial and Other Information. Keep adequate records and books of account with
respect to its business activities in which proper entries are made in accordance with GAAP
reflecting all its financial transactions; and cause to be prepared and furnished to Agent and
Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis,
unless Obligors certified public accountants concur in any change therein, such change is
disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the
financial covenants set forth in Section 10.3 are amended in a manner requested by the Required
Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each
Fiscal Year (a) audited balance sheets of Parent and its consolidated Subsidiaries as of the
end of such Fiscal Year and the related statements of income, shareholders equity and cash
flow, on a Consolidated basis, certified without an Impermissible Qualification by a firm of
independent certified public accountants of recognized national standing selected by
Obligors but reasonably acceptable to Agent and setting forth in each case in comparative
form the corresponding Consolidated figures for the preceding Fiscal Year, and (b) unaudited
balance sheets of Parent and its consolidated Subsidiaries as of the end of such Fiscal Year
and the related statements of income, shareholders equity and cash flow, on a consolidating
(by business unit) basis, and setting forth in each case in comparative form the
corresponding consolidating (by business unit) figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 45 days after the end of each fiscal
month hereafter, including the last fiscal month of each Fiscal Year, unaudited balance
sheets of Parent and its consolidated Subsidiaries as of the end of such fiscal month,
certified by the principal financial officer of Obligors as prepared in accordance with GAAP
and fairly presenting, in all material respects, the Consolidated and consolidating (by
business unit) financial position and results of operations of Obligors and their
Subsidiaries for such month and period subject only to changes from audit and year-end
adjustments and except that such balance sheets need not contain notes;
(iii) not later than 15 days after the end of each fiscal month during which Average
Availability was less than $20,000,000, a listing of all of each Obligors trade payables as
of the last Business Day of such fiscal month, specifying the name of and balance due each
trade creditor, and, at Agents request, monthly detailed trade payable agings in form
acceptable to Agent;
(iv) except to the extent publicly available, promptly after the sending or filing
thereof, as the case may be, copies of any proxy statements, financial statements or reports
which any Obligor has made generally available to Parents shareholders; copies of any
regular, periodic and special reports or registration statements or prospectuses which any
Obligor files with the SEC or any Governmental Authority which may be substituted therefor,
or any national securities exchange; and copies of any press releases or other statements
made available by an Obligor to the public concerning material changes to or developments in
the business of such Obligor;
(v) promptly following Agents request, copies of any annual report to be filed in
accordance with ERISA in connection with each Plan; and
(vi) such other data and information (financial or otherwise) as Agent, from time to
time, may reasonably request, bearing upon or related to the Collateral or any Obligors or
Subsidiarys financial condition or results of operations.
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Concurrently with the delivery of the financial statements described in clause (i) of
this Section 10.1.3, Obligors shall deliver to Agent a copy of any accountants letter to Obligors
management that is prepared in connection with such financial statements and also shall cause to be
prepared and shall deliver to Agent a certificate of the aforesaid certified public accountants
stating to Agent and Lenders that, based upon such accountants audit of the Consolidated financial
statements of Obligors and their Subsidiaries performed in connection with their examination of
said financial statements, nothing came to their attention that caused them to believe that
Obligors were not in compliance with Section 10.3, or, if they are aware of such noncompliance,
specifying the nature thereof. Concurrently with the delivery of the financial statements
described in clauses (i) and (ii) of this Section 10.1.3, or more frequently if
requested by Agent during any period that a Default or Event of Default exists, Obligors shall
cause to be prepared and furnished to Agent a Compliance Certificate executed by the chief
financial officer of Parent.
10.1.4. Landlord and Storage Agreements. Promptly following Agents request, provide Agent
with copies of all existing and future agreements between any Obligor and any landlord,
warehouseman or bailee which owns any premises at which any Collateral may, from time to time, be
kept.
10.1.5. Projections. No later than 60 days after the beginning of each Fiscal Year of
Obligors, beginning with the Fiscal Year commencing on January 1, 2012, deliver to Agent the
Projections of Obligors for such Fiscal Year, as prepared on a quarter-by-quarter basis.
10.1.6. Taxes. Pay and discharge all federal and other material Taxes prior to the date on
which such Taxes become delinquent or penalties attach thereto, except and to the extent only that
such Taxes are being Properly Contested.
10.1.7. Compliance with Laws. Comply with all Applicable Law, including ERISA, all
Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws and all laws, statutes, regulations and
ordinances regarding the collection, payment and deposit of Taxes, and obtain and keep in force any
and all Governmental Approvals necessary to the ownership of its Properties or to the conduct of
its business, in each case to the extent that any such failure to comply, obtain or keep in force
could be reasonably expected to have a Material Adverse Effect.
10.1.8. Insurance. In addition to the insurance required herein with respect to the
Collateral, maintain with its current insurers or with other financially sound and reputable
insurers having a rating of at least B+ VII or better by Bests Ratings, a publication of A.M. Best
Company (or, in the case of aircraft liability insurance, with its current insurers or with other
insurers reasonably acceptable to Agent), (i) insurance with respect to its Properties and business
against such casualties and contingencies of such type (including product liability, workers
compensation, larceny, embezzlement, or other criminal misappropriation insurance) and in such
amounts and with such coverages, limits and deductibles as is customary in the business of such
Obligor or such Subsidiary and (ii) business interruption insurance in an amount reasonably
acceptable to Agent. Agent confirms that the level of business interruption insurance disclosed to
it on or prior to the date hereof is reasonably satisfactory to it based on the circumstances as of
the date hereof.
10.1.9. Intellectual Property. Within 45 days after the end of any Fiscal Quarter, notify
Agent of any application for or acquisition of registered United States Intellectual Property of an
Obligor or Domestic Subsidiary during such Fiscal Quarter and, upon request of Agent, deliver to
Agent, in form and substance acceptable to Agent and in recordable form, all documents necessary
for Agent to obtain and perfect a first priority Lien on such Intellectual Property.
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10.1.10. Tax Matters Agreement. Parent shall comply in all material respects
with all of its respective covenants and obligations under the Tax Matters Agreement, including
without limitation, its obligations pursuant to Section 3.02(b) thereof not to take any action
inconsistent with the representation letter delivered by Parent in connection with the Tax
Opinion as defined therein (unless the requirements of such Section 3.02(b) have been satisfied).
10.2. Negative Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, each Obligor covenants that it shall not and
shall not permit any Subsidiary to:
10.2.1. Fundamental Changes. Merge, reorganize, consolidate or amalgamate with any Person, or
liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or
in a series of related transactions, except for Permitted Mergers/Liquidations and mergers and
consolidations contemplated by the definitions of Permitted Acquisition and Permitted Asset
Disposition.
10.2.2. Loans. Make any loans or other advances of money to any Person other than (i) to an
officer or employee of an Obligor or a Subsidiary for salary, travel advances, advances against
commissions and other similar advances in the Ordinary Course of Business, (ii) loans and advances
that constitute Permitted Foreign Subsidiary Investments, and (iii) loans and advances that are
permitted under Section 10.2.3(ii), (iv), (vii) or (viii), and (iv) advances to suppliers in the
Ordinary Course of Business, which advances shall not at any time exceed $1,000,000 in the
aggregate outstanding.
10.2.3. Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except:
(i) the Obligations;
(ii) Subordinated Debt that is subject at all times to subordination pursuant to the
provisions of a Subordination Agreement;
(iii) Permitted Fixed Asset Debt;
(iv) Debt for Money Borrowed set forth on Schedule 10.2.3;
(v) Permitted Contingent Obligations;
(vi) unsecured Debt (including earn-out and non-compete payments) to sellers under
Permitted Acquisitions;
(vii) Debt from any Obligor to any other Obligor in connection with the ordinary course
operation of the Obligors cash management system;
(viii) Debt from any Borrower to any other Borrower (provided that such Debt is
subordinated to the Obligations pursuant to the terms of the Intercompany Subordination
Agreement);
(ix) Debt under the Convertible Debentures in a maximum principal amount of up to
$172,500,000;
(x) unsecured Debt that is not included in any of the preceding paragraphs of this
Section 10.2.3;
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(xi) Debt owing solely by Foreign Subsidiaries, including Permitted Foreign Subsidiary
Investments;
(xii) Refinancing Debt so long as each of the Refinancing Conditions is met with
respect thereto; and
(xiii) Banking Relationship Debt.
None of the provisions of this Section 10.2.3 that authorize any Obligor to incur any Debt shall be
deemed to override, modify or waive any of the provisions of Section 10.3, which shall constitute
an independent and separate covenant and obligation of each Obligor.
10.2.4. Affiliate Transactions. Enter into, or be a party to, any transaction with any
Affiliate, except: (i) the transactions contemplated by the Loan Documents; (ii) payment of
reasonable compensation to officers and employees for services actually rendered to such Obligor or
its Subsidiaries; (iii) payment of customary directors fees and indemnities; (iv) transactions
expressly permitted by the terms of Sections 10.2.1, 10.2.2, 10.2.3, 10.2.5, 10.2.6, 10.2.7,
10.2.8, 10.2.9, 10.2.11 and 10.2.15; (v) transactions with Affiliates that were consummated prior
to the date hereof and have been disclosed to Agent prior to the Closing Date; (vi) transactions
contemplated by the Intercompany Services Agreements; (vii) transactions with Affiliates in the
Ordinary Course of Business and pursuant to the reasonable requirements of such Obligors or such
Subsidiarys business and upon fair and reasonable terms that are no less favorable to such Obligor
or such Subsidiary than such Obligor or such Subsidiary would obtain in a comparable arms length
transaction with a Person not an Affiliate or stockholder of such Obligor or such Subsidiary; and
(viii) the transactions described on Schedule 10.2.4.
10.2.5. Limitation on Liens. Create or suffer to exist any Lien upon any of its Property,
income or profits, whether now owned or hereafter acquired, except the following (collectively,
Permitted Liens):
(i) Liens at any time granted in favor of Agent;
(ii) Liens for Taxes (excluding any Lien imposed pursuant to any of the provisions of
ERISA) not yet due or being Properly Contested;
(iii) statutory Liens (excluding any Lien for Taxes, including any Lien imposed
pursuant to any of the provisions of ERISA) arising in the Ordinary Course of Business of an
Obligor or a Subsidiary, including statutory Liens in favor of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons, but only if and for so long as (a)
payment in respect of any such Lien is not at the time required or the Debt secured by any
such Liens is being Properly Contested and (b) such Liens do not materially detract from the
value of the Property of such Obligor or such Subsidiary and do not materially impair the
use thereof in the operation of such Obligors or such Subsidiarys business;
(iv) (a) Fixed Asset Liens securing Permitted Fixed Asset Debt pursuant to clause (i)
of the definition thereof, (b) Liens on Other Assets (including the Investment Property of
Foreign Subsidiaries) but only to the extent such Liens secure the Debt arising under the
Permitted Term Loan, and (c) Liens on the Collateral securing the Permitted Term Loan but
only to the extent contemplated by the definition of Permitted Term Loan set forth in this
Agreement;
(v) Liens securing Debt of a Subsidiary of an Obligor to another Obligor or to another
such Subsidiary;
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(vi) Liens arising by virtue of the rendition, entry or issuance against such Obligor
or any of its Subsidiaries, or any Property of such Obligor or any of its Subsidiaries, of
any judgment, writ, order, or decree for so long as each such Lien (a) is in existence for
less than 30 consecutive days after it first arises or is being Properly Contested and (b)
is at all times junior in priority to any Liens in favor of Agent;
(vii) Liens incurred or deposits made in the Ordinary Course of Business to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of Money
Borrowed), statutory obligations (including workers compensation, unemployment insurance,
social security and similar laws) and other similar obligations, or arising as a result of
progress payments under government contracts, or to secure indemnity, performance or other
similar bonds for the performance of tenders, bids, leases, contracts (other than for the
repayment of Money Borrowed) or to secure statutory obligations, provided that, to the
extent any such Liens attach to any of the Collateral (other than any Accounts or Inventory
arising out of or relating to any tender, bid or contract secured by any such bond and any
cash or Cash Equivalents serving as collateral or a deposit for any of the foregoing
obligations), such Liens are at all times subordinate and junior to the Liens upon the
Collateral in favor of Agent;
(viii) Liens consisting of cash collateral posted in favor of any surety or bonding
company in connection with any appeal bonds issued by such surety or bonding company, so
long as (A) pro forma Average Availability, after giving effect to such posting, for the
30-day period immediately preceding such posting, is greater than an amount equal to the
greater of (I) the lesser of 25% of (x) the Borrowing Base or (y) the Commitments, or (II)
$20,000,000, or (B) (I) pro forma Average Availability, after giving effect to such
posting, for the 30-day period immediately preceding such posting, is greater than an amount
equal to the greater of (x) the lesser of 20% of (1) the Borrowing Base or (2) the
Commitments, or (y) $17,500,000, and (II) Borrowers maintain a pro forma Fixed Charge
Coverage Ratio, after giving effect to such posting, measured for the twelve-month period
ending at the most recent month end for which financial statements have been delivered by
Borrowers to Agent in accordance with Section 10.1.3 of this Agreement, that is greater than
1.00 to 1.00 (it being understood that Agent shall be authorized to release its Lien in any
cash collateral posted in accordance with this clause (viii));
(ix) easements, encroachments, reservations, servitudes, rights-of-way, restrictions,
covenants or other agreements of record, leases and other similar charges or encumbrances
and title exceptions on real Property of such Obligor or any of its Subsidiaries that do not
secure any monetary obligation and do not materially interfere with the ordinary conduct of
the business of such Obligor or such Subsidiary;
(x) normal and customary rights of setoff upon deposits of (a) cash in favor of banks
and other depository institutions and Liens of a collecting bank arising under the UCC on
checks and other items of payment in the course of collection, and (b) Cash Equivalents or
Approved Short-Term Investments for normal and customary fees associated with any account in
which the same is maintained;
(xi) Liens in favor of (a) Garlock Sealing in the Membership Interests pursuant to the
CIP/GGB Pledge Agreement, provided that such Liens shall at all times be
subordinate to Agents Liens therein in accordance with the terms of the Garlock Sealing
Subordination Agreement, and (b) Garlock Sealing (as successor by merger to Stemco LP (DE))
in the general partnership interests in Stemco LP (TX) and in the stock of Stemco Holdings
pursuant to the Stemco Pledge Agreement, provided that such Liens shall at
all times be subordinate to Agents Liens therein in accordance with the terms of the Stemco
Subordination Agreement;
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(xii) such other Liens as appear on Schedule 10.2.5, to the extent provided therein;
(xiii) Liens encumbering the Property of Foreign Subsidiaries, other than the
Investment Property in or of Foreign Subsidiaries unless such Liens are securing the
Permitted Term Loan; and
(xiv) such other Liens as Agent and the Required Lenders in their discretion may
hereafter approve in writing.
The foregoing negative pledge shall not apply to any Margin Stock to the extent that the
application of such negative pledge to such Margin Stock would require filings or other actions by
any Lender under Regulation U or other regulations of the Board of Governors, or otherwise result
in a violation of any such regulations.
10.2.6. Restrictions on Payment of Certain Debt. Make any payments or repurchases with
respect to any:
(i) Subordinated Debt other than (a) payment of regularly scheduled installments of
principal and interest and fees and other charges when required to be paid by any instrument
or agreement evidencing such Subordinated Debt, or (b) payments in accordance with the
ordinary course operation of Obligors and their Subsidiaries cash management system
consistent with historical practices, but in each case only to the extent that payment
thereof is not violative of any subordination agreement relating to such Subordinated Debt;
or
(ii) Funded Debt (other than the Obligations) prior to the date on which any such
payment is required to be made pursuant to any instrument or agreement evidencing such
Funded Debt, including any voluntary prepayment, redemption, defeasance or other acquisition
for value of any such Funded Debt, except to the extent that, (a) at the time of any such
prepayment or repurchase no Default or Event of Default shall have occurred and be
continuing, and (b) either (i) pro forma Average Availability for the 30-day period
immediately preceding such prepayment or repurchase and pro forma Availability after giving
effect to such prepayment or repurchase is greater than an amount equal to the greater of
(A) the lesser of 25% of (I) the Borrowing Base or (II) the Commitments, or (B) $20,000,000,
or (ii) (A) pro forma Average Availability for the 30-day period immediately preceding such
prepayment or repurchase and pro forma Availability after giving effect to such prepayment
or repurchase is greater than the greater of (I) the lesser of 20% of (x) the Borrowing Base
or (y) the Commitments, or (II) $17,500,000, and (B) Borrowers maintain a pro forma Fixed
Charge Coverage Ratio, after giving effect to such prepayment or repurchase, measured for
the twelve-month period ending at the most recent month end preceding such prepayment or
repurchase for which financial statements have been delivered by Borrowers to Agent in
accordance with Section 10.1.3 of this Agreement, that is greater than 1.00 to 1.00.
10.2.7. Distributions. Declare or make any Distributions, except for Upstream Payments and
Permitted Distributions.
10.2.8. Upstream Payments. Create or suffer to exist any encumbrance or restriction on the
ability of a Subsidiary to make any Upstream Payment, except for encumbrances or restrictions (i)
pursuant to the Loan Documents, (ii) existing under Applicable Law and (iii) identified and fully
disclosed in Schedule 10.2.8.
10.2.9. Disposition of Assets. Make any Asset Disposition other than a Permitted Asset
Disposition; provided that, the disposition to a Foreign Subsidiary of assets
constituting all or part
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of a capital contribution made by Parent, a Borrower or its Subsidiary to such Foreign
Subsidiary pursuant to a Permitted Foreign Subsidiary Investment shall not be deemed to violate
this Section 10.2.9.
10.2.10. Subsidiaries. Form or acquire any Subsidiary after the Closing Date or permit any
existing Subsidiary to issue any additional Equity Interests except directors qualifying shares;
provided that, (a) the formation or acquisition of a Subsidiary in connection with
a Permitted Acquisition shall be permitted so long any such new Subsidiary that is a Domestic
Subsidiary shall, prior to or concurrently with such acquisition, execute all such agreements,
documents and instruments as Agent may request to either guaranty the Obligations or, with Agents
consent, become a Borrower under this Agreement, and pledge all of its Collateral as security
therefor, (b) the formation of any other Subsidiary shall be permitted so long as any such new
Subsidiary that is a Domestic Subsidiary shall, promptly after formation, execute all such
agreements, documents and instruments as Agent may request to either guaranty the Obligations or,
with Agents consent, become a Borrower under this Agreement, and pledge all of its Collateral as
security therefor, and (c) the issuance by a Foreign Subsidiary to a Borrower or its Subsidiary of
additional Equity Interests in exchange for a capital contribution made by such Borrower or
Subsidiary to such Foreign Subsidiary pursuant to a Permitted Foreign Subsidiary Investment shall
not be deemed to violate this Section 10.2.10.
10.2.11. Restricted Investments. Make or have any Restricted Investment.
10.2.12. Tax Consolidation. File or consent to the filing of any consolidated income tax
return with any Person other than a Subsidiary, Garlock Sealing, Garrison or Anchor.
10.2.13. Fiscal Year. Establish a fiscal year different from the Fiscal Year.
10.2.14. Organic Documents. Amend, modify or otherwise change any of the terms or provisions
in any of its Organic Documents as in effect on the date hereof, except for changes that do not
affect in any way (i) such Obligors or any of its Subsidiaries right and authority to enter into
and perform the Loan Documents to which it is a party, (ii) the perfection of Agents Liens in any
Collateral, or (iii) the authority or obligation of an Obligor to pay or perform any of the
Obligations.
10.2.15. Restrictive Agreements. Enter into or become a party to any Restrictive Agreement,
provided that the foregoing shall not apply to (i) Restrictive Agreements existing on the date
hereof and identified on Schedule 9.1.18 (and amendments, modifications and replacements thereof,
so long as such amendments, modifications or replacements are not more restrictive, taken as a
whole, than the scheduled agreements) so long as such agreements do not prohibit any of the
transactions or Liens contemplated by the Loan Documents, (ii) restrictions or conditions imposed
by any Restrictive Agreement evidencing or governing secured Debt that is permitted by this
Agreement if such restrictions or conditions apply only to the Properties securing such Debt and do
not prohibit any of the transactions or Liens contemplated by the Loan Documents, (iii) customary
provisions in leases, licenses and other contracts restricting the assignment thereof or rights
thereunder, (iv) agreements acquired in any Permitted Acquisitions so long as such Agreements were
not entered into in anticipation of such Permitted Acquisition, the restriction is not applicable
to any Person other than the Person or the assets of the Person so acquired, and such agreements do
not prohibit any of the transactions or Liens contemplated by the Loan Documents, (v) agreements in
connection with Debt of Foreign Subsidiaries permitted hereunder that prohibit such Foreign
Subsidiary from creating, assigning or incurring any Lien upon its assets or incurring Debt, so
long as such agreements do not prohibit any of the transactions or Liens contemplated by the Loan
Documents, and (vi) any agreement governing Debt permitted to be incurred hereunder so long as the
terms and conditions of any such restrictions and encumbrances, taken as a whole, are not more
restrictive than those contained in this Agreement and do not prohibit any of the
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transactions or Liens contemplated by the Loan Documents (collectively Permitted
Restrictive Agreements).
10.2.16. Hedging Agreements. Enter into any Hedging Agreement, other than Hedging Agreements
entered into in the Ordinary Course of Business to hedge or mitigate risks to which any Obligor or
any Subsidiary is exposed in the conduct of its business or the management of its liabilities and
not for any speculative purpose.
10.2.17. Compromise of Claims. Discount, forgive, waive or otherwise compromise any claim or
debt owing to it, except for reasonable consideration negotiated on an arms-length basis and in the
Ordinary Course of Business or, so long as no Event of Default exists, as would not reasonably be
expected to have a Material Adverse Effect.
10.2.18. Anti-Terrorism Laws. Conduct any business or engage in any transaction or dealing with any Blocked Person in
violation in any material respect of any Anti-Terrorism Law, including the making or receiving any
contribution of funds, goods or services to or for the benefit of any Blocked Person; deal in, or
otherwise engage in any transaction relating to, any property or interests in property blocked
pursuant to Executive Order No. 13224; or engage in or conspire to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in Executive Order No. 13224 or the USA Patriot Act. Obligors shall deliver
to Agent and Lenders any certification or other evidence reasonably requested from time to time by
Agent or any Lender confirming each Obligors compliance with this Section 10.2.18.
10.2.19. Conduct of Business. Engage in any business other than (a) the business engaged in by
it on the Closing Date, (b) any business or activities which are substantially similar, related or
incidental thereto, and (c) any similar business that manufactures products and provides related
services for sale to industrial customers.
10.2.20. Multiemployer Plans. Become, or permit any Subsidiary to become a party to a
Multiemployer Plan.
10.2.21. Dormant Subsidiaries. From and after the date of this Agreement, no Dormant
Subsidiary shall (i) conduct or engage in any business, (ii) incur or become liable with respect to
any Debt, (iii) acquire any assets, or (iv) enter into any transaction with any of Parent, any
Borrower, any of their respective Subsidiaries or any other Person.
10.3. Financial Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, Obligors covenant that:
10.3.1. Minimum Fixed Charge Coverage Ratio. If Availability at any time is less than an
amount equal to the greater of (a) the lesser of 15% of (i) the Borrowing Base or (ii) the amount
of the Commitments, or (b) $15,000,000 (which amount, in the event of any increase in the
Commitments in accordance with Section 2.2, shall be increased by an amount equal to 12% of the
amount of such increase) (such event being a Covenant Trigger), Obligors shall be
required to maintain a Fixed Charge Coverage Ratio of at least 1.00 to 1.00 as of the immediately
preceding fiscal month-end for which financial statements have been (or were required to be)
delivered hereunder and as of each subsequent fiscal month end; provided, that (a) a breach
of such covenant when so tested shall not be cured by a subsequent increase of Availability above
the limit set forth above, and (b) following a Covenant Trigger, the requirement to comply with the
Fixed Charge Coverage Ratio shall no longer apply if Borrowers have maintained Availability greater
than or equal to an amount equal to the greater of (i) the lesser of 15% of (A) the Borrowing Base
or (B) the amount of the Commitments, or (ii) $15,000,000 (which amount, in
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the event of any increase in the Commitments in accordance with Section 2.2, shall be
increased by an amount equal to 12% of the amount of such increase) for three (3) consecutive
months, after which time the requirement to comply with the Fixed Charge Coverage Ratio shall not
apply unless a subsequent Covenant Trigger occurs. If Obligors fail to deliver financial
statements on the due date therefor (without giving effect to any cure periods), such that the
Fixed Charge Coverage Ratio cannot be calculated, the Fixed Charge Coverage Ratio shall be deemed
to be less than 1.00 to 1.00 until such time as the required financial statements are actually
delivered.
SECTION 11. CONDITIONS PRECEDENT
11.1. Conditions Precedent to Initial Credit Extensions. Initial Lenders shall not be
required to fund any requested Loan or otherwise extend credit to Borrowers, and Issuing Bank shall
have no obligation to issue any Letter of Credit, unless each of the following conditions has been
satisfied:
11.1.1. Loan Documents. Each of the Loan Documents required to be executed at closing shall
have been duly executed and delivered to Agent by each of the signatories thereto and accepted by
Agent and Initial Lenders, and each Obligor shall be in compliance with all of the representations,
warranties, covenants and terms thereof.
11.1.2. Availability. Agent shall have determined, and Initial Lenders shall be satisfied,
that, immediately after Initial Lenders have made the initial Revolver Loans to be made on the
Closing Date (if any), Issuing Bank has issued the Letters of Credit to be issued on the Closing
Date (if any), and Borrowers have paid (or made provision for payment of) all fees and closing
costs incurred in connection with the Commitments, and after increasing the Availability Reserve in
the amount of any payables of Borrowers that are stretched beyond Borrowers customary payment
practices, Availability is not less than $30,000,000.
11.1.3. Evidence of Perfection and Priority of Liens. Agent shall have received copies of all
filing receipts or acknowledgments issued by any Governmental Authority to evidence any filing or
recordation necessary to continue the perfection of the Liens of Agent in the Collateral and
evidence in form satisfactory to Agent and Initial Lenders that such Liens constitute valid and
perfected Liens, and that there are no other Liens upon any Collateral except for Permitted Liens.
11.1.4. Organic Documents. Agent shall have received copies of the Organic Documents of each
Obligor, and all amendments thereto, certified by the Secretary of State or other appropriate
official of the jurisdiction of each Obligors organization.
11.1.5. Good Standing Certificates. Agent shall have received certificates of existence or
good standing for each Obligor, issued by the Secretary of State or other appropriate official of
such Obligors jurisdiction of organization and principal place of business.
11.1.6. Opinion Letters. Agent and Initial Lenders shall have received favorable, written
opinions of Robinson, Bradshaw & Hinson, P.A. and Robert S. McLean, Vice President Legal, of
Parent, in the forms attached as Exhibit B hereto.
11.1.7. Insurance. Agent shall have received certificates of insurance with respect to the
property and casualty insurance policies of Obligor with respect to the Collateral, in form
acceptable to Agent, and including loss payable endorsements on Agents standard form of loss payee
endorsement naming Agent as loss payee with respect to each such property policy, and certificates
of insurance with respect to Obligors liability insurance policies, including product liability
policies, together with endorsements naming Agent as an additional insured, all as required by the
Loan Documents.
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11.1.8. Lockbox and Dominion Accounts. Agent shall have received the duly executed agreements
establishing each Lockbox and Dominion Account required by this Agreement, in each case with a
financial institution reasonably acceptable to Agent for the collection or servicing of the
Accounts.
11.1.9. Solvency Certificates. Agent and Initial Lenders shall have received certificates
satisfactory to them from one or more knowledgeable Senior Officers of each Obligor that, after
giving effect to the financing under this Agreement and the issuance of the Letters of Credit, each
Obligor is Solvent.
11.1.10. Payment of Fees. Borrowers shall have paid, or made provision for the payment on the
Closing Date of, all fees and expenses to be paid hereunder and under the Fee Letter to Agent and
Lenders on the Closing Date.
11.1.11. LC Conditions. With respect to the issuance of any Letter of Credit on the Closing
Date, each of the LC Conditions is satisfied.
11.1.12. Due Diligence. Agent and Arranger shall have completed their business,
financial and legal due diligence of Obligors, including a roll-forward of previous field
examinations as deemed necessary by Agent in its discretion, with results satisfactory to Agent.
11.1.13. Financial Statements and Projections. Agent and Arranger shall have
received such historic financial statements, pro forma financial statements and year-by-year
projections through the end of Fiscal Year 2015 with respect to Borrowers as Agent and Arranger
deem appropriate, all in form and substance reasonably acceptable to Agent and Arranger.
11.2. Conditions Precedent to All Credit Extensions. Lenders shall not be required to fund
any Loans or otherwise extend any credit to or for the benefit of Borrowers and Issuing Bank shall
have no obligation to issue any Letter of Credit, unless and until each of the following conditions
has been and continues to be satisfied:
11.2.1. No Defaults. No Default or Event of Default exists at the time, or would result from
the funding, of any Loan or other extension of credit.
11.2.2. Representations and Warranties. Each of the representations and warranties by an
Obligor in any of the Loan Documents (including any representations and warranties in any
certificate furnished at any time in connection herewith) are true and correct, in all material
respects, on and as of the date of each extension of credit hereunder (except for those
representations or warranties which expressly relate to an earlier date).
11.2.3. No Litigation. No action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any court, governmental agency or legislative
body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or
arises out of, this Agreement or any of the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby.
11.2.4. No Material Adverse Effect. No event shall have occurred since December 31, 2010, and
no condition shall exist, which has or would be reasonably expected to have a Material Adverse
Effect.
11.2.5. Borrowing Base Certificate. Agent shall have received each Borrowing Base Certificate
then required by the terms of this Agreement.
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11.2.6. LC Conditions. With respect to the issuance of any Letter of Credit after the Closing
Date, each of the LC Conditions is satisfied.
11.2.7. Reserved.
11.3. Inapplicability of Conditions. None of the conditions precedent set forth in Sections
11.1 or 11.2 shall be conditions to the obligation of (i) each Participating Lender to make
payments to Issuing Bank pursuant to Section 2.3.2, (ii) each Lender to deposit with Agent such
Lenders Pro Rata share of a Borrowing in accordance with Section 4.1.2, (iii) each Lender to fund
its Pro Rata share of a Revolver Loan to repay outstanding Swingline Loans to BofA as provided in
Section 4.1.3(ii), (iv) each Lender to pay any amount payable to Agent or any other Lender pursuant
to this Agreement or (v) Agent to pay any amount payable to any Lender pursuant to this Agreement.
11.4. Limited Waiver of Conditions Precedent. If Lenders shall make any Loan or otherwise
extend any credit to Borrowers under this Agreement at a time when any of the foregoing conditions
precedent are not satisfied (regardless of whether the failure of satisfaction of any such
conditions precedent was known or unknown to Agent or Lenders), the funding of such Loan or other
extension of credit shall not operate as a waiver of the right of Agent and Lenders to insist upon
the satisfaction of all conditions precedent with respect to each subsequent Borrowing requested by
Borrowers or a waiver of any Default or Event of Default as a consequence of the failure of any
such conditions to be satisfied, unless Agent, with the prior written consent of the Required
Lenders, in writing waives the satisfaction of any condition precedent, in which event such waiver
shall only be applicable for the specific instance given and only to the extent and for the period
of time expressly stated in such written waiver.
SECTION 12. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
12.1. Events of Default. The occurrence or existence of any one or more of the following
events or conditions shall constitute an Event of Default (each of which Events of Default shall
be deemed to exist unless and until waived in accordance with the provisions of Section 13.9):
12.1.1. Payment of Obligations. Borrowers shall fail to pay any of the Obligations on the due
date thereof (whether due at stated maturity, on demand, upon acceleration or otherwise); provided,
that, if Agent fails to charge Borrowers loan account in accordance with Section 4.1.1(ii) for any
interest payment or other Obligation (other than principal) for which Borrower Representative does
not receive prior demand or notice of the amount and due date thereof at a time when Borrowers have
sufficient Availability to pay such amount in full (taking into account the provisions of Section
4.1.1 and all other amounts charged to Borrowers loan account on such date), then the non-payment
of such interest or other Obligation shall not constitute an Event of Default under this Section
12.1.1 unless and until Borrower Representative has received notice of the amount due and Borrowers
fail to pay such amount within 2 Business Days thereafter.
12.1.2. Misrepresentations. Any representation, warranty or other written statement to Agent
or any Lender by or on behalf of any Obligor, whether made in or furnished in compliance with any
of the Loan Documents (including any representation made in any Borrowing Base Certificate), proves
to have been false or misleading in any material respect when made or furnished or when reaffirmed
pursuant to Section 9.2.
12.1.3. Breach of Specific Covenants. Any Obligor shall fail or neglect to perform, keep or
observe: (i) any covenant contained in Sections 7.3, 7.5, 8.1.1, 8.2.4, 8.2.5, 8.2.6, 8.4, 10.1.1,
10.1.9, 10.2 or 10.3 on the date that such Borrower is required to perform, keep or observe such
covenant; or (ii) any covenant contained in Sections 8.1.2, 8.2.1, 8.2.2, 8.3, 8.5, 10.1.3 or
10.1.6 the breach of such
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other covenant is not cured within 5 Business Days after the earlier of (a) the date on which
a Senior Officer of any Obligor acquired knowledge thereof and (b) the date on which written notice
thereof is delivered by Agent or any Lender to Borrower Representative.
12.1.4. Breach of Other Covenants. Any Obligor shall fail or neglect to perform, keep or
observe any covenant contained in this Agreement (other than a covenant which is dealt with
specifically elsewhere in Section 12.1) and the breach of such other covenant is not cured within
30 days after the earlier of (a) the date on which a Senior Officer of any Obligor acquired
knowledge thereof and (b) the date on which written notice thereof is delivered by Agent or any
Lender to Borrower Representative.
12.1.5. Default Under Security Documents/Other Agreements. Any Obligor shall default in the
due and punctual observance or performance of any covenant to be observed or performed by it under
any of the Other Agreements or Security Documents and the breach of such other covenant is not
cured within 30 days after the earlier of (a) the date on which a Senior Officer of any Obligor
acquired knowledge thereof and (b) the date on which written notice thereof is delivered by Agent
or any Lender to Borrower Representative.
12.1.6. Other Defaults. There shall occur any default or event of default on the part of any
Obligor or any Subsidiary under any agreement, document or instrument to which such Obligor or such
Subsidiary is a party or by which such Obligor or such Subsidiary or any of their respective
Properties is bound, creating or relating to any Debt (other than the Obligations) in excess of
$7,500,000, if the payment or maturity of such Debt may be accelerated in consequence of such
default or event of default or demand for payment of such Debt may be made; or any such Debt shall
be declared due and payable in accordance with the terms thereof prior to the stated maturity of
such Debt or be required to be prepaid (other than by a regularly scheduled required prepayment or
by a prepayment or redemption permitted under Section 10.2.6) prior to the stated maturity thereof.
12.1.7. Uninsured Losses. There shall occur any loss, theft, damage or destruction of any of
the Collateral not fully covered (subject to such deductibles as Agent shall have permitted) by
insurance if the amount not covered by insurance exceeds $7,500,000.
12.1.8. Material Adverse Effect. There shall occur any event or condition that has a Material
Adverse Effect.
12.1.9. Solvency. Any Obligor shall cease to be Solvent.
12.1.10. Insolvency Proceedings. Any Insolvency Proceeding shall be commenced by any Obligor;
an Insolvency Proceeding is commenced against any Obligor and any of the following events occur:
such Obligor consents to the institution of the Insolvency Proceeding against it, the petition
commencing the Insolvency Proceeding is not timely controverted by such Obligor, the petition
commencing the Insolvency Proceeding is not dismissed within 30 days after the date of the filing
thereof (provided that, in any event, during the pendency of any such period, Lenders shall be
relieved from their obligation to make Loans or otherwise extend credit to or for the benefit of
Borrowers hereunder), an interim trustee is appointed to take possession all or a substantial
portion of the Properties of such Obligor or to operate all or any substantial portion of the
business of such Obligor or an order for relief shall have been issued or entered in connection
with such Insolvency Proceeding; or any Obligor shall make an offer of settlement extension or
composition to its unsecured creditors generally.
12.1.11. Business Disruption. There shall occur a cessation of a substantial part of the
business of any Obligor for a period which may be reasonably expected to have a Material Adverse
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Effect; or any Obligor shall suffer the loss or revocation of any license or permit now held
or hereafter acquired by such Obligor which is necessary to the continued or lawful operation of
its business and such loss or revocation would reasonably be expected to have a Material Adverse
Effect; or any Obligor shall be enjoined, restrained or in any way prevented by court, governmental
or administrative order from conducting all or any material part of its business affairs and such
event would reasonably be expected to have a Material Adverse Effect; or any material lease or
agreement pursuant to which any Obligor leases or occupies any premises on which any Collateral is
located shall be canceled or terminated prior to the expiration of its stated term and such
cancellation or termination has a Material Adverse Effect.
12.1.12. ERISA. Any of the following events shall occur and, as a result thereof, any Obligor
shall have incurred or would be reasonably likely to incur liability to one or more Plans or to the
Pension Benefit Guaranty Corporation (or any combination thereof) in excess of $7,500,000: (i) a
Reportable Event shall occur which Agent, in its Credit Judgment, shall determine constitutes
grounds for the termination by the Pension Benefit Guaranty Corporation of any Plan or for the
appointment by the appropriate United States district court of a trustee for any Plan, (ii) any
Plan shall be terminated or any such trustee shall be requested or appointed, or (iii) any Obligor
is in default (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Plan
resulting from such Obligors complete or partial withdrawal from such Plan.
12.1.13. Challenge to or Insufficiency of Loan Documents. Any Obligor or any of its Affiliates
shall challenge or contest (or support the challenge or contest of others) in any action, suit or
proceeding the validity or enforceability of any of the Loan Documents, the legality or
enforceability of any of the Obligations or the perfection or priority of any Lien granted to
Agent, or any of the Loan Documents ceases to be in full force or effect for any reason other than
a full or partial waiver or release by Agent and Lenders in accordance with the terms thereof.
12.1.14. Judgment. One or more judgments, orders, decrees or arbitration awards is entered
against Parent, any Borrower or any of their respective Subsidiaries involving in the aggregate
liability (to the extent not covered by independent third-party insurance as to which the insurer
does not dispute coverage) as to any single or related or unrelated series of transactions,
incidents or conditions, of $7,500,000 or more and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of 30 days after the entry thereof.
12.1.15. Repudiation of or Default Under Guaranty. Any Guarantor shall revoke or attempt to
revoke the Guaranty signed by such Guarantor, shall repudiate such Guarantors liability
thereunder, or shall be in default under the terms thereof, or shall fail to confirm in writing,
promptly after receipt of Agents written request therefor, such Guarantors ongoing liability
under the Guaranty in accordance with the terms thereof.
12.1.16. Criminal Forfeiture. Any Obligor (or any of its Senior Officers) is criminally
convicted for (i) a felony committed in the conduct of the business of such Obligor or (ii) a
violation of any state or federal law (including the Controlled Substances Act, the Money
Laundering Control Act of 1986, and the Illegal Exportation of War Materials Act), and in either
case under clause (i) or (ii) such event would reasonably be expected to lead to a
forfeiture of any material Collateral.
12.1.17. Change of Control. A Change of Control shall occur.
12.2. Acceleration of Obligations; Termination of Commitments. Without in any way limiting
the right of Agent to demand payment of any portion of the Obligations payable on demand in
accordance with this Agreement, upon or at any time after the occurrence of an Event of Default
(other than pursuant to Section 12.1.10) and for so long as such Event of Default shall exist,
Agent may in its
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discretion (and, upon receipt of written instructions to do so from the Required Lenders,
shall) (a) declare the principal of and any accrued interest on the Loans and all other Obligations
owing under any of the Loan Documents to be, whereupon the same shall become without further notice
or demand (all of which notice and demand each Borrower expressly waives), forthwith due and
payable and Borrowers shall forthwith pay to Agent the entire principal of and accrued and unpaid
interest on the Loans and other Obligations plus reasonable attorneys fees and court costs if such
principal and interest are collected by or through an attorney-at-law and (b) terminate the
Revolver Commitments; provided, however, that upon the occurrence of an Event of
Default specified in Section 12.1.10, all of the Obligations (other than Secured Bank Product
Obligations) shall become automatically due and payable without declaration, notice or demand by
Agent to or upon any Borrower or any other Obligor and the Revolver Commitments shall automatically
terminate as if terminated by Agent pursuant to Section 6.2.1 and with the effects specified in
Section 6.2.3.
12.3. Other Remedies. Upon and after the occurrence of an Event of Default and for so long
as such Event of Default shall exist, Agent may in its discretion (and, upon receipt of written
direction of the Required Lenders, shall) institute any Enforcement Action and exercise from time
to time the following rights and remedies:
12.3.1. All of the rights and remedies of a secured party under the UCC or under other
Applicable Law, and all other legal and equitable rights to which Agent may be entitled under any
of the Loan Documents, all of which rights and remedies shall be cumulative and shall be in
addition to any other rights or remedies contained in this Agreement or any of the other Loan
Documents, and none of which shall be exclusive.
12.3.2. The right to collect all amounts at any time payable to an Obligor from any Account
Debtor or other Person at any time indebted to such Obligor.
12.3.3. The right to take immediate possession of any of the Collateral, and to (i) require
Obligors to assemble the Collateral, at Obligors expense, and make it available to Agent at a
place designated by Agent which is reasonably convenient to both parties, and (ii) enter any
premises where any of the Collateral shall be located and to keep and store the Collateral on said
premises until sold (and if said premises be owned or leased by an Obligor, then such Obligor
agrees not to charge Agent for storage of any Collateral therein).
12.3.4. The right to sell or otherwise dispose of all or any Collateral in its then
condition, or after any further manufacturing or processing thereof, at public or private sale or
sales, with such notice as may be required by Applicable Law, in lots or in bulk, for cash or on
credit, all as Agent, in its discretion, may deem advisable. Each Obligor agrees that any
requirement of notice to any Obligor of any proposed public or private sale or other disposition
of Collateral by Agent shall be deemed reasonable notice thereof if given at least 10 days prior
thereto, and such sale may be at such locations as Agent may designate in said notice. Agent
shall have the right to conduct such sales on any Obligors premises, without charge therefor, and
such sales may be adjourned from time to time in accordance with Applicable Law. Agent shall have
the right to sell, lease or otherwise dispose of the Collateral, or any part thereof, for cash,
credit or any combination thereof, and Agent may purchase all or any part of the Collateral at
public or, if permitted by law, private sale and, in lieu of actual payment of such purchase
price, may set off the amount of such price against the Obligations. The proceeds realized from
the sale or other disposition of any Collateral may be applied, after allowing 2 Business Days for
collection, first to any Extraordinary Expenses incurred by Agent and then to the remainder of the
Obligations as specified in Section 5.5.1.
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12.3.5. The right to obtain the appointment of a receiver, without notice of any kind
whatsoever, to take possession of the Collateral and to exercise such rights and powers as the
court appointing such receiver shall confer upon such receiver.
12.3.6. The right to require Borrowers to Cash Collateralize outstanding Letters of Credit
and Secured Bank Product Obligations, and, if Borrowers fail promptly to make such deposit,
Lenders may (and shall upon the direction of the Required Lenders) advance such amount as a
Revolver Loan (whether or not an Out-of-Formula Condition exists or is created thereby or the
Commitments have been terminated but not if such advance would cause a Lenders Pro Rata Share of
all Loans and LC Obligations to exceed its Commitment (as the same was in effect prior to the
Commitment Termination Date if such advance is made after the Commitment Termination Date)). Any
such deposit or advance shall be held by Agent in the Cash Collateral Account to fund future
payments on any Letter of Credit. When all Letters of Credit have been drawn upon or expired, any
amounts remaining in the Cash Collateral Account shall be applied against any outstanding
Obligations, or, after Full Payment of all Obligations, returned to Borrowers.
Agent is hereby granted, solely during an Event of Default, an irrevocable, non-exclusive license
or other right to use, license or sub-license (exercisable without payment of royalty or other
compensation to any Obligor or any other Person) any or all of each Obligors Intellectual Property
and all of each Obligors computer hardware and software trade secrets, brochures, customer lists,
promotional and advertising materials, labels, and packaging materials, and any Property of a
similar nature, in advertising for sale, marketing, selling and collecting and in completing the
manufacturing of any Collateral, and each Obligors rights under all licenses and all franchise
agreements shall inure to Agents benefit.
12.4. Setoff. In addition to any Liens granted under any of the Loan Documents and any
rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their
respective Affiliates) is hereby authorized by Obligors at any time that an Event of Default
exists, without notice to any Obligors or any other Person (any such notice being hereby expressly
waived), to set off and to appropriate and apply any and all deposits, general or special
(including certificates of deposit whether matured or unmatured (but not including trust accounts))
and any other Debt at any time held or owing by such Lender or any of their Affiliates to or for
the credit or the account of any Obligor against and on account of the Obligations of Obligors
arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all
Loans and LC Obligations and all claims of any nature or description arising out of or in
connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have
made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders,
shall have declared the principal of and interest on the Loans and other amounts due hereunder to
be due and payable as permitted by this Agreement and even though such Obligations may be
contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding
the foregoing, each of Agent and Lenders agree with each other that it shall not, without the
express consent of the Required Lenders, and that it shall (to the extent that it is lawfully
entitled to do so) upon the request of the Required Lenders, exercise its setoff rights hereunder
against any accounts of any Obligor now or hereafter maintained with Agent, such Lender or any
Affiliate of any of them, but no Obligor shall have any claim or cause of action against Agent or
any Lender for any setoff made without the consent of the Required Lenders and the validity of any
such setoff shall not be impaired by the absence of such consent. If any party (or its Affiliate)
exercises the right of setoff provided for hereunder, such party shall be obligated to share any
such setoff in the manner and to the extent required by Section 13.5.
12.5. Remedies Cumulative; No Waiver.
12.5.1. All covenants, conditions, provisions, warranties, guaranties, indemnities, and other
undertakings of Obligors contained in this Agreement, the other Loan Documents, or any other
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agreement between Agent or any Lender and any Obligor, heretofore, concurrently, or hereafter
entered into, shall be deemed cumulative to and not in derogation or substitution of any of the
terms, covenants, conditions, or agreements of Obligors herein contained. The rights and remedies
of Agent and Lenders under this Agreement and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies that Agent or any Lender would otherwise have.
12.5.2. The failure or delay of Agent or any Lender to require strict performance by Obligors
of any provision of any of the Loan Documents or to exercise or enforce any rights, Liens, powers
or remedies under any of the Loan Documents or with respect to any Collateral shall not operate as
a waiver of such performance, Liens, rights, powers and remedies, but all such requirements,
Liens, rights, powers, and remedies shall continue in full force and effect until all Loans and
all other Obligations owing or to become owing from Obligors to Agent and Lenders shall have been
fully satisfied. None of the undertakings, agreements, warranties, covenants and representations
of Obligors contained in this Agreement or any of the other Loan Documents and no Event of Default
shall be deemed to have been suspended or waived by Agent or any Lender, unless such suspension or
waiver is by an instrument in writing specifying such suspension or waiver and is signed by a duly
authorized representative of Agent or such Lender and directed to Borrower Representative.
12.5.3. If Agent or any Lender shall accept performance by an Obligor, in whole or in part,
of any obligation that such Obligor is required by any of the Loan Documents to perform only when
a Default or Event of Default exists, or if Agent or any Lender shall exercise any right or remedy
under any of the Loan Documents that may not be exercised other than when a Default or Event of
Default exists, Agents or Lenders acceptance of such performance by an Obligor or Agents or
Lenders exercise of any such right or remedy shall not operate to waive any such Event of Default
or to preclude the exercise by Agent or any Lender of any other right or remedy, unless otherwise
expressly agreed in writing by Agent or such Lender, as the case may be.
SECTION 13. AGENT
13.1. Appointment, Authority and Duties of Agent.
13.1.1. Appointment and Authority. Each Secured Party appoints and designates BofA as
Agent under all Loan Documents. Agent may, and each Secured Party authorizes Agent to, enter into
all Loan Documents to which Agent is intended to be a party and accept all Security Documents, for
the benefit of Secured Parties. Each Secured Party agrees that any action taken by Agent or
Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by Agent
or Required Lenders of any rights or remedies set forth therein, together with all other powers
reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties.
Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority
to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and
collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each
Loan Document, including any intercreditor agreement or Subordination Agreement, and each
amendment, modification, supplement or restatement thereof, and accept delivery of each Loan
Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for
purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes
stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any
Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral
under the Loan Documents, Applicable Law or otherwise. The duties of Agent shall be ministerial
and administrative in nature, and Agent shall not have a fiduciary relationship with any Secured
Party, Participant or other Person, by reason of any Loan Document or any transaction relating
thereto. Agent alone shall be authorized to determine whether any Accounts or Inventory constitute
Eligible Accounts or Eligible Inventory, whether to impose or release any reserve (including any
Bank Product Reserve except
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to the extent of Noticed Hedges), or whether any conditions to funding or to issuance of a
Letter of Credit have been satisfied, which determinations and judgments, if exercised in good
faith, shall exonerate Agent from liability to any Lender or other Person for any error in
judgment.
13.1.2. Duties. Agent shall not have any duties except those expressly set forth in
the Loan Documents. The conferral upon Agent of any right shall not imply a duty to exercise such
right, unless instructed to do so by Lenders in accordance with this Agreement.
13.1.3. Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act
upon, and shall be fully protected in any action taken in good faith reliance upon, any advice
given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of
any agents, employees or Agent Professionals selected by it with reasonable care.
13.1.4. Instructions of Required Lenders. The rights and remedies conferred upon
Agent under the Loan Documents may be exercised without the necessity of joinder of any other
party, unless required by Applicable Law. Agent may request instructions from Required Lenders or
other Secured Parties with respect to any act (including the failure to act) in connection with
any Loan Documents, and may seek assurances to its satisfaction from Secured Parties of their
indemnification obligations against all Claims that could be incurred by Agent in connection with
any act. Agent shall be entitled to refrain from any act until it has received such instructions
or assurances, and Agent shall not incur liability to any Person by reason of so refraining.
Instructions of Required Lenders shall be binding upon all Secured Parties, and no Secured Party
shall have any right of action whatsoever against Agent as a result of Agent acting or refraining
from acting in accordance with the instructions of Required Lenders. Notwithstanding the
foregoing, instructions by and consent of specific parties shall be required to the extent
provided in Section 13.9.1. In no event shall Agent be required to take any action that, in its
opinion, is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee
to personal liability.
13.2. Agreements Regarding Collateral and Examination Reports.
13.2.1. Lenders hereby irrevocably authorize Agent to release any Lien with respect to any
Collateral (i) upon the termination of the Commitments and Full Payment of the Obligations, (ii)
that is the subject of an Asset Disposition which is a Permitted Asset Disposition under clause
(i) of the definition thereof or which Borrower Representative otherwise certifies in writing
to Agent is a Permitted Asset Disposition (and Agent may rely conclusively on any such certificate
without further inquiry), (iii) valued in the aggregate not in excess of $1,000,000 during each
Fiscal Year without the prior written authorization of any of the Lenders, (iv) valued in the
aggregate not in excess of $2,000,000 during each Fiscal Year with the prior written authorization
of the Required Lenders, or (v) with the written consent of all Lenders. Agent shall have no
obligation whatsoever to any of the Lenders to assure that any of the Collateral exists or is owned
by an Obligor or is cared for, protected or insured or has been encumbered, or that Agents Liens
have been properly, sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority or to exercise any duty of care with respect to any of the
Collateral.
13.2.2. Agent and Lenders each hereby appoints each other Lender as agent for the purpose of
perfecting Liens (for the benefit of Secured Parties) in any Collateral that, in accordance with
the UCC or any other Applicable Law, can be perfected only by possession. Should any Lender obtain
possession of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon
Agents request therefor, shall deliver such Collateral to Agent or otherwise deal with such
Collateral in accordance with Agents instructions.
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13.2.3. Each Lender agrees that neither BofA nor Agent makes any representation or warranty as
to the accuracy or completeness of any Report and shall not be liable for any information contained
in or omitted from any such Report; agrees that the Reports are not intended to be comprehensive
audits or examinations and that BofA or Agent or any other Person performing any audit or
examination will inspect only specific information regarding Obligations or the Collateral and will
rely significantly upon Obligors books and records as well as upon representations of Obligors
officers and employees; agrees to keep all Reports confidential and strictly for its internal use
and not to distribute the Reports (or the contents thereof) to any Person (except to its
Participants, attorneys, accountants and other Persons with whom such Lender has a confidential
relationship) or use any Report in any other manner; and, without limiting the generality of any
other indemnification contained herein, agrees to hold Agent and any other Person preparing a
Report harmless from any action that the indemnifying Lender may take or conclusion the
indemnifying Lender may reach or draw from any Report in connection with any Loans or other credit
accommodations that the indemnifying Lender has made or may make to Borrowers, or the indemnifying
Lenders participation in, or its purchase of, a loan or loans of any Obligor, and to pay and
protect, and indemnify, defend and hold Agent and each other such Person preparing a Report
harmless from and against all claims, actions, proceedings, damages, costs, expenses and other
amounts (including attorneys fees) incurred by Agent and any such other Person preparing a Report
as the direct or indirect result of any third parties who might obtain all or any part of any
Report through the indemnifying Lender.
13.3. Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in
so relying, upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram, telecopier message or cable) believed by it to be genuine and correct
and to have been signed, sent or made by or on behalf of the proper Person or Persons, and upon
advice and statements of Agent Professionals selected by Agent with reasonable care. Without
limiting the generality of the foregoing, Agent may rely upon any Notice of Borrowing, LC Request,
Notice of Conversion/Continuation or any similar notice or request believed by Agent to be genuine.
As to any matters not expressly provided for by this Agreement or any of the other Loan Documents,
Agent shall in all cases be fully protected in acting or refraining from acting hereunder and
thereunder in accordance with the instructions of the Required Lenders, and such instructions of
the Required Lenders and any action taken or failure to act pursuant thereto shall be binding upon
Lenders.
13.4. Action Upon Default. Agent shall not be deemed to have knowledge of the occurrence of
a Default or an Event of Default unless it has received written notice from a Lender or any or all
Borrowers specifying the occurrence and nature of such Default or Event of Default. If Agent shall
receive such a notice of a Default or an Event of Default or shall otherwise acquire actual
knowledge of any Default or Event of Default, Agent shall promptly notify Lenders and Agent may
(and shall upon written direction of the Required Lenders) take such action and assert such rights
and remedies under this Agreement and the other Loan Documents as Agent shall deem necessary or
appropriate, or shall refrain from taking such action and asserting such rights, as the Required
Lenders shall direct in writing from time to time. If any Lender shall receive a notice of a
Default or an Event of Default or shall otherwise acquire actual knowledge of any Default or Event
of Default, such Lender shall promptly notify Agent and the other Lenders in writing. As provided
in Section 13.3, Agent shall not be subject to any liability by reason of acting or refraining to
act pursuant to any request of the Required Lenders except for its own willful misconduct or gross
negligence in connection with any action taken by it. In no event shall the Required Lenders,
without the prior written consent of each Lender, direct Agent to accelerate and demand payment of
the Loans held by one Lender without accelerating and demanding payment of all other Loans or to
terminate the Commitments of one or more Lenders without terminating the Commitments of all
Lenders. Each Lender agrees that, except as otherwise provided in any of the Loan Documents or
with the written consent of Agent and the Required Lenders, it will not take any legal action or
institute any action or proceeding against any Obligor with respect to any of the Obligations or
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Collateral or accelerate or otherwise enforce its portion of the Obligations. Without
limiting the generality of the foregoing, none of Lenders may exercise any right that it might
otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar
sales or dispositions of any of the Collateral except as authorized by Agent and the Required
Lenders. Notwithstanding anything to the contrary set forth in this Section 13.4 or elsewhere in
this Agreement, each Lender shall be authorized to take such action to preserve or enforce its
rights against any Obligor where a deadline or limitation period is otherwise applicable and would,
absent the taking of specified action, bar the enforcement of Obligations held by such Lender
against such Obligor, including the filing of proofs of claim in any Insolvency Proceeding.
13.5. Ratable Sharing. If any Lender shall obtain any payment or reduction (including any
amounts received as adequate protection of a bank account deposit treated as cash collateral under
the Bankruptcy Code) of any Obligation (whether voluntary, involuntary, through the exercise of any
right of set-off or otherwise) in excess of its Pro Rata share of payments or reductions on account
of such Obligations obtained by all of the Lenders, such Lender shall forthwith (i) notify the
other Lenders and Agent of such receipt and (ii) purchase from the other Lenders such
participations in the affected Obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection therewith, on a Pro Rata
basis, provided that if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the extent of such recovery or such
additional costs, but without interest. Each Obligor agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 13.5 may, to the fullest extent
permitted by Applicable Law, exercise all of its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the direct creditor of Obligors
in the amount of such participation.
13.6. Indemnification of Agent Indemnitees.
13.6.1. Each Lender agrees to indemnify and defend the Agent Indemnitees (to the extent not
reimbursed by Obligors, but without limiting the indemnification obligations of Obligors under any
of the Loan Documents), on a Pro Rata basis, and to hold each of the Agent Indemnitees harmless
from and against, any and all Claims which may be imposed on, incurred by or asserted against any
of the Agent Indemnitees in any way related to or arising out of any of the Loan Documents or
referred to herein or therein or the transactions contemplated thereby (including the costs and
expenses which Obligors are obligated to pay under Section 15.2 or amounts Agent may be called
upon to pay in connection with any lockbox or Dominion Account arrangement contemplated hereby or
under any indemnity, guaranty or other assurance of payment or performance given by Agent pursuant
to Section 3.4.2 or the enforcement of any of the terms of any Loan Documents).
13.6.2. Without limiting the generality of the foregoing provisions of this Section 13.6, if
Agent should be sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person
on account of any alleged preference or fraudulent transfer received or alleged to have been
received from any Borrower or any other Obligor as the result of any transaction under the Loan
Documents, then in such event any monies paid by Agent in settlement or satisfaction of such suit,
together with all Extraordinary Expenses incurred by Agent in the defense of same, shall be
promptly reimbursed to Agent by Lenders to the extent of each Lenders Pro Rata share.
13.6.3. Without limiting the generality of the foregoing provisions of this Section 13.6, if
at any time (whether prior to or after the Commitment Termination Date) any action or proceeding
shall be brought against any of the Agent Indemnitees by an Obligor or by any other Person
claiming by, through or under an Obligor, to recover damages for any act taken or omitted by Agent
under any of the
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Loan Documents or in the performance of any rights, powers or remedies of Agent against any
Obligor, any Account Debtor, the Collateral or with respect to any Loans, or to obtain any other
relief of any kind on account of any transaction involving any Agent Indemnitees under or in
relation to any of the Loan Documents, each Lender agrees to indemnify, defend and hold the Agent
Indemnitees harmless with respect thereto and to pay to the Agent Indemnitees such Lenders Pro
Rata share of such amount as any of the Agent Indemnitees shall be required to pay by reason of a
judgment, decree, or other order entered in such action or proceeding or by reason of any
compromise or settlement agreed to by the Agent Indemnitees, including all interest and costs
assessed against any of the Agent Indemnitees in defending or compromising such action, together
with attorneys fees and other legal expenses paid or incurred by the Agent Indemnitees in
connection therewith; provided, however, that no Lender shall be liable to any
Agent Indemnitee for any of the foregoing to the extent that they arise solely from the willful
misconduct or gross negligence of such Agent Indemnitee. In Agents discretion, Agent may also
reserve for or satisfy any such judgment, decree or order from proceeds of Collateral prior to any
distributions therefrom to or for the account of Lenders.
13.7. Limitation on Responsibilities of Agent. Agent shall in all cases be fully justified
in failing or refusing to act hereunder unless it shall have received further assurances to its
satisfaction from Lenders of their indemnification obligations under Section 13.6 against any and
all Indemnified Claims which may be incurred by Agent by reason of taking or continuing to take any
such action. Agent shall not be liable to Lenders for any action taken or omitted to be taken
under or in connection with this Agreement or the other Loan Documents except as a result and to
the extent of losses caused by Agents actual gross negligence or willful misconduct. Agent does
not assume any responsibility for any failure or delay in performance or breach by any Obligor or
any Lender of its obligations under this Agreement or any of the other Loan Documents. Agent does
not make to Lenders, and no Lender makes to Agent or the other Lenders, any express or implied
warranty, representation or guarantee with respect to the Obligations, the Collateral, the Loan
Documents or any Obligor. Neither Agent nor any of its officers, directors, employees, attorneys
or agents shall be responsible to Lenders, and no Lender nor any of its agents, attorneys or
employees shall be responsible to Agent or the other Lenders, for: (i) any recitals, statements,
information, representations or warranties contained in any of the Loan Documents or in any
certificate or other document furnished pursuant to the terms hereof; (ii) the execution, validity,
genuineness, effectiveness or enforceability of any of the Loan Documents; (iii) the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; (iv) the validity, enforceability or
collectibility of any the Obligations; or (v) the assets, liabilities, financial condition, results
of operations, business, creditworthiness or legal status of any Obligor or any Account Debtor.
Neither Agent nor any of its officers, directors, employees, attorneys or agents shall have any
obligation to any Lender to ascertain or inquire into the existence of any Default or Event of
Default, the observance or performance by any Obligor of any of the duties or agreements of such
Obligor under any of the Loan Documents or the satisfaction of any conditions precedent contained
in any of the Loan Documents. Agent may consult with and employ legal counsel, accountants and
other experts and shall be entitled to act upon, and shall be fully protected in any action taken
in good faith reliance upon, any advice given by such experts.
13.8. Successor Agent and Co-Agents.
13.8.1. Subject to the appointment and acceptance of a successor Agent as provided below,
Agent may resign at any time by giving at least 30 days written notice thereof to each Lender and
Borrower Representative. Upon receipt of any notice of such resignation, the Required Lenders,
after prior consultation with (but without having to obtain consent of) each Lender, shall have
the right to appoint a successor Agent which shall be (i) a Lender, (ii) a United States based
affiliate of a Lender, or (iii) a commercial bank that is organized under the laws of the United
States or of any State thereof and has a combined capital surplus of at least $500,000,000 and,
provided no Default or Event of Default
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then exists, is reasonably acceptable to Borrower Representative (and for purposes hereof,
any successor to BofA shall be deemed acceptable to Borrower Representative). If no successor
agent is appointed prior to the effective date of the resignation of Agent, then Agent may
appoint, after consultation with Lenders and Borrower Representative, a successor agent from among
Lenders. Upon the acceptance by a successor Agent of an appointment to serve as Agent hereunder,
such successor Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent without further act, deed or conveyance, and the
retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to
enjoy the benefits of the indemnification set forth in Sections 13.6 and 15.2. After any retiring
Agents resignation hereunder as Agent, the provisions of this Section 13 (including the
provisions of Section 13.6) shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent. Notwithstanding anything to the
contrary contained in this Agreement, any successor by merger or acquisition of the stock or
assets of BofA shall continue to be Agent hereunder without further act on the part of the parties
hereto unless such successor shall resign in accordance with the provisions hereof.
13.8.2. It is the intent of the parties that there shall be no violation of any Applicable
Law denying or restricting the right of financial institutions to transact business as agent or
otherwise in any jurisdiction. In case of litigation under any of the Loan Documents, or in case
Agent deems that by reason of present or future laws of any jurisdiction Agent might be prohibited
from exercising any of the powers, rights or remedies granted to Agent or Lenders hereunder or
under any of the Loan Documents or from holding title to or a Lien upon any Collateral or from
taking any other action which may be necessary hereunder or under any of the Loan Documents, Agent
may appoint an additional Person (with the consent of Borrower Representative absent an Event of
Default, such consent not to be unreasonably withheld or delayed) as a separate collateral agent
or co-collateral agent which is not so prohibited from taking any of such actions or exercising
any of such powers, rights or remedies. If Agent shall appoint an additional Person as a separate
collateral agent or co-collateral agent as provided above, each and every remedy, power, right,
claim, demand or cause of action intended by any of the Loan Documents to be exercised by or
vested in or conveyed to Agent with respect thereto shall be exercisable by and vested in such
separate collateral agent or co-collateral agent, but only to the extent necessary to enable such
separate collateral agent or co-collateral agent to exercise such powers, rights and remedies, and
every covenant and obligation necessary to the exercise thereof by such separate collateral agent
or co-collateral agent shall run to and be enforceable by either of them. Should any instrument
from Lenders be required by the separate collateral agent or co-collateral agent so appointed by
Agent in order more fully and certainly to vest in and confirm to him or it such rights, powers,
duties and obligations, any and all of such instruments shall, on request, be executed,
acknowledged and delivered by Lenders whether or not a Default or Event of Default then exists.
In case any separate collateral agent or co-collateral agent, or a successor to either, shall die,
become incapable of acting, resign or be removed, all the estates, properties, rights, powers,
duties and obligations of such separate collateral agent or co-collateral agent, so far as
permitted by Applicable Law, shall vest in and be exercised by Agent until the appointment of a
new collateral agent or successor to such separate collateral agent or co-collateral agent.
13.9. Consents, Amendments and Waivers; Out-of-Formula Loans.
13.9.1. No modification of any Loan Document, including any extension or amendment of a Loan
Document or any waiver of a Default or Event of Default, shall be effective without the prior
written agreement of Agent (with the consent of Required Lenders) and each Obligor party to such
Loan Document; provided, however, that
(a) without the prior written consent of Agent, no modification shall be effective with
respect to any provision in a Loan Document that relates to any rights, duties or discretion of
Agent;
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(b) without the prior written consent of Issuing Bank, no modification shall be effective with
respect to any LC Obligations, Section 2.3 or any other provision in a Loan Document that relates
to any rights, duties or discretion of Issuing Bank;
(c) without the prior written consent of each affected Lender, including a Defaulting Lender,
no modification shall be effective that would (i) increase the Commitment of such Lender; (ii)
reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such
Lender (except as provided in Section 4.2); (iii) extend the Commitment Termination Date; or (iv)
amend this clause (c);
(d) without the prior written consent of all Lenders (except any Defaulting Lender), no
modification shall be effective that would (i) alter Section 5.5, 7.1 (except to add Collateral) or
13.9; (ii) amend the definition of Borrowing Base (or any defined term used in such definition),
Pro Rata or Required Lenders; (iii) release Collateral with a book value greater than $3,000,000
during any calendar year, except as currently contemplated by this Agreement (including in
connection with Asset Dispositions that are Permitted Asset Dispositions) and the other Loan
Documents; (iv) contractually subordinate any of Agents Liens in the Collateral, except to the
extent expressly permitted by this Agreement; or (v) release any Obligor from liability for any
Obligations, if such Obligor is Solvent at the time of the release (other than as expressly
permitted hereunder); and
(e) without the prior written consent of a Secured Bank Product Provider, no modification
shall be effective that effects its relative priority under Section 5.5.
The making of any Loans hereunder by any Lender during the existence of a Default or Event of
Default shall not be deemed to constitute a waiver of such Default or Event of Default. Any waiver
or consent granted by Lenders hereunder shall be effective only if in writing and then only in the
specific instance and for the specific purpose for which it was given.
13.9.2. The agreement of Borrowers shall not be necessary to the effectiveness of any
modification of a Loan Document that deals solely with the rights and duties of Lenders, Agent
and/or Issuing Bank as among themselves. Only the consent of the parties to the Fee Letter or any
agreement relating to a Bank Product shall be required for any modification of such agreement, and
any non-Lender that is party to a Bank Product agreement shall have no right to participate in any
manner in modification of any other Loan Document. Any waiver or consent granted by Agent or
Lenders hereunder shall be effective only if in writing and only for the matter specified.
13.9.3. No Borrower will, directly or indirectly, pay any remuneration or other thing of
value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as
a Lender hereunder) as consideration for agreement by such Lender with any modification of any
Loan Documents, unless such remuneration or value is concurrently paid, on the same terms, on a
Pro Rata basis to all Lenders providing their consent; provided,however, that
Obligors may contract to pay a fee only to those Lenders who actually vote in writing to approve
any waiver or amendment of the terms and provisions of this Agreement or any of the other Loan
Documents to the extent that such waiver or amendment may be implemented by vote of the Required
Lenders and such waiver or amendment is in fact approved (and the Obligors may exercise rights
under Section 13.17).
13.9.4. Any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is a Lender, shall be conclusive and binding upon any
Transferee of such Lender.
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13.9.5. Unless otherwise directed in writing by the Required Lenders, Agent may require
Lenders to honor requests by Borrowers for Out-of-Formula Loans (in which event, and
notwithstanding anything to the contrary set forth in Section 2.1.1 or elsewhere in this
Agreement, Lenders shall continue to make Revolver Loans up to their Pro Rata share of the
Commitments) and to forbear from requiring Borrowers to cure an Out-of-Formula Condition, if and
for so long as (i) such Out-of-Formula Condition does not continue for a period of more than 30
consecutive days, following which no Out-of-Formula Condition exists for at least 5 consecutive
days before another Out-of-Formula Condition exists, (ii) the amount of the Revolver Loans
outstanding at any time does not exceed the aggregate of the Commitments at such time, and (iii)
the Out-of-Formula Condition is not known by Agent at the time in question to exceed $10,000,000.
In no event shall any Borrower or any other Obligor be deemed to be a beneficiary of this Section
13.9.5 or authorized to enforce any of the provisions of this Section 13.9.5.
13.10. Due Diligence and Non-Reliance. Each Lender hereby acknowledges and represents that
it has, independently and without reliance upon Agent or the other Lenders, and based upon such
documents, information and analyses as it has deemed appropriate, made its own credit analysis of
each Obligor and its own decision to enter into this Agreement, to fund the Loans to be made by it,
issue Letters of Credit and purchase participations in the LC Obligations pursuant to Section
2.3.2, and each Lender has made such inquiries concerning the Loan Documents, the Collateral and
each Obligor as such Lender feels necessary and appropriate, and has taken such care on its own
behalf as would have been the case had it entered into the other Loan Documents without the
intervention or participation of the other Lenders or Agent. Each Lender hereby further
acknowledges and represents that the other Lenders and Agent have not made any representations or
warranties to it concerning any Obligor, any of the Collateral or the legality, validity,
sufficiency or enforceability of any of the Loan Documents. Each Lender also hereby acknowledges
that it will, independently and without reliance upon the other Lenders or Agent, and based upon
such financial statements, documents and information as it deems appropriate at the time, continue
to make and rely upon its own credit decisions in making Loans and in taking or refraining to take
any other action under this Agreement or any of the other Loan Documents. Except for notices,
reports and other information expressly required to be furnished to Lenders by Agent hereunder,
Agent shall not have any duty or responsibility to provide any Lender with any notices, reports or
certificates furnished to Agent by any Obligor or any credit or other information concerning the
affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates)
which may come into possession of Agent or any of Agents Affiliates.
13.11. Representations and Warranties of Lenders. Each Lender represents and warrants to
each Obligor, Agent and the other Lenders that it has the power to enter into and perform its
obligations under this Agreement and the other Loan Documents, and that it has taken all necessary
and appropriate action to authorize its execution and performance of this Agreement and the other
Loan Documents to which it is a party, each of which will be binding upon it and the obligations
imposed upon it herein or therein will be enforceable against it in accordance with the respective
terms of such documents; and none of the consideration used by it to make or fund its Loans or to
participate in any other transactions under this Agreement constitutes for any purpose of ERISA or
Section 4975 of the Internal Revenue Code assets of any plan as defined in Section 3(3) of ERISA
or Section 4975 of the Internal Revenue Code and the rights and interests of such Lender in and
under the Loan Documents shall not constitute plan assets under ERISA.
13.12. The Required Lenders. As to any provisions of this Agreement or the other Loan
Documents under which action may or is required to be taken upon direction or approval of the
Required Lenders, the direction or approval of the Required Lenders shall be binding upon each
Lender to the same extent and with the same effect as if each Lender joined therein.
Notwithstanding anything to the contrary contained in this Agreement, Obligors shall not be deemed
to be a beneficiary of, or be entitled
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to enforce, sue upon or assert as a defense to any of the Obligations, any provisions of this
Agreement that requires Agent or any Lender to act, or conditions their authority to act, upon the
direction or consent of the Required Lenders; and any action taken by Agent or any Lender that
requires the consent or direction of the Required Lenders as a condition to taking such action
shall, insofar as Obligors are concerned, be presumed to have been taken with the requisite consent
or direction of the Required Lenders.
13.13. Several Obligations. The obligations and Commitment of each Lender under this
Agreement and the other Loan Documents are several and neither Agent nor any Lender shall be
responsible for the performance by the other Lenders of its obligations or Commitment hereunder or
thereunder. Notwithstanding any liability of Lenders stated to be joint and several to third
Persons under any of the Loan Documents, such liability shall be shared, as among Lenders, Pro
Rata.
13.14. Agent in its Individual Capacity. With respect to its obligation to lend under this
Agreement and the Loans made by it, Agent shall have the same rights and powers hereunder and under
the other Loan Documents as any other Lender and may exercise the same as though it were not
performing the duties specified herein; and the terms Lenders, Required Lenders, or any similar
term shall, unless the context clearly otherwise indicates, include Agent in its capacity as a
Lender. Agent and its Affiliates may each accept deposits from, maintain deposits or credit
balances for, invest in, lend money to, provide Bank Products to, act as trustee under indentures
of, serve as financial advisor to, and generally engage in any kind of business with any Obligor or
any Affiliate of any Obligor, as if it were any other bank and without any duty to account therefor
(or for any fees or other consideration received in connection therewith) to the other Lenders.
BofA or its Affiliates may receive information regarding any Obligor or any of such Obligors
Affiliates and account debtors (including information that may be subject to confidentiality
obligations in favor of Obligors or any of their Affiliates) and Lenders acknowledge that neither
Agent nor BofA shall be under any obligation to provide such information to Lenders to the extent
acquired by BofA in its individual capacity and not as Agent hereunder.
13.15. No Third Party Beneficiaries. Except in the case of Sections 13.1.3, 13.2.1, 13.8,
13.9.3, 13.9.4, 13.11 and 13.17, this Section 13 is not intended to confer any rights or benefits
upon Obligors or any other Person except Lenders and Agent, and no Person (including any Obligor)
other than Lenders and Agent shall have any right to enforce any of the provisions of this Section
13 except in the case of Sections 13.1.3, 13.2.1, 13.8, 13.9.3, 13.9.4, 13.11 and 13.17. As
between Obligors and Agent, any action that Agent may take or purport to take on behalf of Lenders
under any of the Loan Documents shall be conclusively presumed to have been authorized and approved
by Lenders as herein provided.
13.16. Notice of Transfer. Agent may deem and treat a Lender party to this Agreement as the
owner of such Lenders portion of the Revolver Loans for all purposes, unless and until a written
notice of the assignment or transfer thereof executed by such Lender has been received by Agent.
13.17. Replacement of Certain Lenders. If a Lender (a) is a Defaulting Lender, or (b) (i)
requested compensation from Borrowers under Section 3.7 or 3.8 to recover increased costs incurred
by such Lender (or its parent or holding company) or restore a rate of return on capital which are
not being incurred and requested generally by the other Lenders (or their respective parents or
holding companies), (ii) delivered a notice pursuant to Section 3.6 claiming that such Lender is
unable to extend LIBOR Loans to Borrowers for reasons not generally applicable to the other
Lenders, (iii) defaulted in paying or performing any of its obligations to Agent, or (iv) failed
(within 5 Business Days after Agents request) or refused to give its consent to any amendment,
waiver or action for which consent of all of the Lenders is required and in respect of which the
Required Lenders have consented, then, in any such case and in addition to any other rights and
remedies that Agent, any other Lender or Borrowers may have against such Lender, any Borrower or
Agent may, by notice to such Lender within 120 days after such event
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(with a copy to Agent in the case of a demand by Borrowers and a copy to Borrowers in the case
of a demand by Agent), require such Lender to assign all of its rights and obligations under the
Loan Documents to Eligible Assignee(s) specified by Agent, pursuant to appropriate Assignment and
Acceptance(s) and within 20 days after Agents (or Borrowers) notice. Agent is irrevocably
appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to
execute same. Such Lender shall be entitled to receive, in cash, concurrently with such
assignment, all amounts owed to it under the Loan Documents, including all principal, interest and
fees through the date of assignment (but excluding any prepayment charge).
13.18. Remittance of Payments and Collections.
13.18.1. All payments by any Lender to Agent shall be made not later than the time set forth
elsewhere in this Agreement on the Business Day such payment is due; provided, however, that if
such payment is due on demand by Agent and such demand is made on the paying Lender after 11:00
a.m. on such Business Day, then payment shall be made by 11:00 a.m. on the next Business Day.
Payment by Agent to any Lender shall be made by wire transfer, promptly following Agents receipt
of funds for the account of such Lender and in the type of funds received by Agent; provided,
however, that if Agent receives such funds at or prior to 12:00 noon, Agent shall pay such funds
to such Lender by 2:00 p.m. on such Business Day, but if Agent receives such funds after 12:00
noon, Agent shall pay such funds to such Lender by 2:00 p.m. on the next Business Day.
13.18.2. With respect to the payment of any funds from Agent to a Lender or from a Lender to
Agent, the party failing to make full payment when due pursuant to the terms hereof shall, on
demand by the other party, pay such amount together with interest thereon at the Federal Funds
Rate. In no event shall Borrowers be entitled to receive any credit for any interest paid by
Agent to any Lender, or by any Lender to Agent, at the Federal Funds Rate as provided herein, nor
shall any Defaulting Lender be entitled to interest on any amounts held by Agent pursuant to
Section 4.2.
13.18.3. If Agent pays any amount to a Lender in the belief or expectation that a related
payment has been or will be received by Agent from an Obligor and such related payment is not
received by Agent, then Agent shall be entitled to recover such amount from each Lender that
receives such amount. If Agent determines at any time that any amount received by it under this
Agreement or any of the other Loan Documents must be returned to an Obligor or paid to any other
Person pursuant to any Applicable Law, court order or otherwise, then, notwithstanding any other
term or condition of this Agreement or any of the other Loan Documents, Agent shall not be
required to distribute such amount to any Lender.
13.19. Arranger. Each of the parties to this Agreement acknowledges that, other than any
rights and duties explicitly assigned to Arranger under this Agreement, Arranger does not have any
obligations hereunder and shall not be responsible or accountable to any other party hereto for any
action or failure to act hereunder. Without limiting the foregoing, Arranger shall not have or be
deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on Arranger in deciding to enter into this Agreement or in taking or
not taking action hereunder.
13.20. Bank Product Providers. Each Secured Bank Product Provider, by delivery of a notice
to Agent of a Bank Product, agrees to be bound by Section 5.5 and this Section 13. Each Secured
Bank Product Provider shall indemnify and hold harmless Agent Indemnitees, to the extent not
reimbursed by Obligors, against all Claims that may be incurred by or asserted against any Agent
Indemnitee in connection with such providers Secured Bank Product Obligations.
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SECTION 14. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
14.1. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of Obligors, Agent, Arranger, Issuing Bank and Lenders and their respective successors and
permitted assigns (which, in the case of Agent, shall include any successor Agent appointed
pursuant to Section 13.8), except that (i) no Obligor shall have the right to assign its rights or
delegate performance of any of its obligations under any of the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 14.3. Agent may treat the Person
which made any Loan as the owner thereof for all purposes hereof unless and until such Person
complies with Section 14.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with Agent. Any assignee or transferee of any
rights with respect to any Loan agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of a Loan, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such Loan.
14.2. Participations.
14.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with Applicable Law, at any time sell to one or more banks or other
financial institutions (each a Participant) a participating interest in any of the
Obligations owing to such Lender, any Commitment of such Lender or any other interest of such
Lender under any of the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lenders obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of its Loans and Commitments
for all purposes under the Loan Documents, all amounts payable by Obligors under this Agreement
shall be determined as if such Lender had not sold such participating interests, and Obligors and
Agent shall continue to deal solely and directly with such Lender in connection with such Lenders
rights and obligations under the Loan Documents. If a Lender sells a participation to a Person
other than an Affiliate of such Lender, then such Lender shall give prompt written notice thereof
to Borrowers and Agent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 5.8 unless Borrowers are notified of the participation
sold to Participant and such Participant agrees, for the benefit of Borrowers, to comply with
Section 5.9 as though such Participant were a Lender.
14.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than an amendment, modification or waiver with respect to any Loans or Commitment
in which such Participant has an interest which forgives principal, interest or fees or reduces the
stated interest rate or the stated rates at which fees are payable with respect to any such Loan or
Commitment, postpones the Commitment Termination Date, or (at any time that an Event of Default
exists) any date fixed for any regularly scheduled payment of interest or fees on such Loan or
Commitment.
14.2.3. Benefit of Set-Off. Each Obligor agrees that each Participant shall be deemed to have
the right of set-off provided in Section 12.4 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent and subject to the same requirements under this
Agreement (including Section 13.5) as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the
right of set-off provided in Section 12.4 with respect to the amount of participating interests
sold to each Participant. Lenders agree to share with each Participant, and each Participant by
exercising the right of set-off provided in Section 12.4 agrees to share with each Lender, any
amount received pursuant to the exercise
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of its right of set-off, such amounts to be shared in accordance with Section 13.5 as if each
Participant were a Lender.
14.2.4. Notices. Each Lender shall be solely responsible for notifying its Participants of
any matters relating to the Loan Documents to the extent that any such notice may be required, and
neither Agent nor any other Lender or Obligor shall have any obligation, duty or liability to any
Participant of any other Lender. Without limiting the generality of the foregoing, neither Agent
nor any Lender or Obligor shall have any obligation to give notices or to provide documents or
information to a Participant of another Lender.
14.3. Assignments.
14.3.1. Permitted Assignments. Subject to its compliance with Section 14.3.2, a Lender may,
in accordance with Applicable Law, at any time assign to any Eligible Assignee all or any part of
its rights and obligations under the Loan Documents, so long as (i) each assignment is of a
constant, and not a varying, ratable percentage of all of the transferor Lenders rights and
obligations under the Loan Documents with respect to the Loans and the LC Obligations and, in the
case of a partial assignment, is in a minimum principal amount of $10,000,000 (unless otherwise
agreed by Agent and, in the absence of an Event of Default, Borrower Representative, in its or
their discretion); (ii) except in the case of an assignment in whole of a Lenders rights and
obligations under the Loan Documents or an assignment by one original signatory to this Agreement
to another such signatory, immediately after giving effect to any assignment, the aggregate amount
of the Commitments retained by the transferor Lender shall in no event be less than $10,000,000
(unless otherwise agreed by Agent and, in the absence of an Event of Default, Borrower
Representative, in its or their discretion); and (iii) the parties to each such assignment shall
execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance.
Nothing contained herein shall limit in any way the right of a Lender to pledge or assign all or
any portion of its rights under this Agreement or with respect to any of the Obligations to (x) any
Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A
of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, (y)
direct or indirect contractual counterparties in swap agreements relating to the Loans, provided
that any payment by Borrowers to the assigning Lender in respect of any assigned Obligations in
accordance with the terms of this Agreement shall satisfy Borrowers obligations hereunder in
respect of such assigned Obligations to the extent of such payment, and no such assignment shall
release the assigning Lender from its obligations hereunder.
14.3.2. Effect; Effective Date. Upon (i) delivery to Agent of a notice of assignment
substantially in the form attached as Exhibit D hereto, together with any consents required by
Section 14.3.1, and (ii) payment of a $3,500 fee to Agent for processing any assignment to an
Eligible Assignee that is not an Affiliate of the transferor Lender, such assignment shall become
effective on the effective date specified in such notice of assignment. The Assignment and
Acceptance shall contain a representation and warranty by the Eligible Assignee that the
assignment evidenced thereby will not result in a non-exempt prohibited transaction under
Section 406 of ERISA. On and after the effective date of such assignment, such Eligible Assignee
shall for all purposes be a Lender party to this Agreement and the other Loan Documents executed
by the Lenders and shall have all the rights and obligations of a Lender under the Loan Documents
to the same extent as if it were an original party thereto, and no further consent or action by
Obligors, Lenders or Agent shall be required to release the transferor Lender with respect to the
Commitment (or portion thereof) of such Lender and Obligations assigned to such Eligible Assignee.
Without limiting the generality of the foregoing, such Eligible Assignee shall be subject to and
bound by all of the Loan Documents. If the transferor Lender shall have assigned all of its
interests, rights and obligations under this Agreement pursuant to Section 14.3.1, then (i) such
transferor Lender shall no longer have any obligation to indemnify Agent with respect to
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any transactions, events or occurrences that transpire after the effective date of such
assignment, (ii) each Eligible Assignee to which such transferor Lender shall make an assignment
shall be responsible to Agent to indemnify Agent in accordance with this Agreement with respect to
transactions, events and occurrences transpiring on and after the effective date of such
assignment to it, and (iii) the transferor Lender shall continue to be entitled to the benefits of
those provisions of the Loan Documents (including indemnities from Obligors) that survive Full
Payment of the Obligations.
14.3.3. Dissemination of Information. Each Obligor authorizes each Lender and Agent to
disclose to any Participant, any Eligible Assignee or any other Person acquiring an interest in the
Loan Documents by operation of law (each a Transferee), and any prospective Transferee,
any and all information in Agents or such Lenders possession concerning each Obligor, the
Subsidiaries of each Obligor or the Collateral, subject to appropriate confidentiality undertakings
on the part of such Transferee.
14.4. Tax Treatment. If any interest in any Loan Document is transferred to any Transferee
that is organized under the laws of any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of
such transfer, to comply with the provisions of Section 5.9.
SECTION 15. MISCELLANEOUS
15.1. Power of Attorney. Each Obligor hereby irrevocably designates, makes, constitutes and
appoints Agent (and all Persons designated by Agent) as such Obligors true and lawful attorney
(and agent-in-fact) and Agent, or Agents designee, may, without notice to such Obligor and in
either such Obligors or Agents name, but at the cost and expense of Obligors:
15.1.1. At such time or times as Agent or said designee, in its discretion, may determine,
endorse such Obligors name on any Payment Item or other proceeds of the Collateral (including
proceeds of insurance) which come into the possession of Agent or under Agents control. |
15.1.2. At any time that an Event of Default exists: (i) demand payment of the Accounts from the
Account Debtors, enforce payment of the Accounts by legal proceedings or otherwise, and generally
exercise all of such Obligors rights and remedies with respect to the collection of the Accounts;
(ii) settle, adjust, compromise, discharge or release any of the Accounts or other Collateral or
any legal proceedings brought to collect any of the Accounts or other Collateral; (iii) sell or
assign any of the Accounts and other Collateral upon such terms, for such amounts and at such time
or times as Agent deems advisable; (iv) take control, in any manner, of any item of payment or
proceeds relating to any Collateral; (v) prepare, file and sign such Obligors name to a proof of
claim in bankruptcy or similar document against any Account Debtor or to any notice of Lien,
assignment or satisfaction of Lien or similar document in connection with any of the Collateral;
(vi) receive, open and dispose of all mail addressed to such Obligor and to notify postal
authorities to change the address for delivery thereof to such address as Agent may designate;
(vii) endorse the name of such Obligor upon any Payment Item relating to any Collateral and deposit
the same to the account of Agent for application to the Obligations; (viii) endorse the name of
such Obligor upon any Chattel Paper, Document, Instrument, invoice, freight bill, bill of lading or
similar document or agreement relating to any Accounts or Inventory of any Obligor and any other
Collateral; (ix) use such Obligors stationery and sign the name of such Obligor to verifications
of the Accounts and notices thereof to Account Debtors; (x) use the information recorded on or
contained in any data processing equipment and computer hardware and software relating to any
Collateral; (xi) make and adjust claims under policies of insurance; (xii) sign the name of such
Obligor to and file any proof of claim in an Insolvency Proceeding of any Account Debtor and on
notices of Liens, claims of mechanics Liens or assignments or releases of mechanics Liens
securing any Accounts; (xiii)
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take all action as may be necessary to obtain the payment of any letter of credit or bankers
acceptance of which such Obligor is a beneficiary; and (xiv) do all other acts and things
necessary, in Agents determination, to fulfill such Obligors obligations under any of the Loan
Documents.
15.2. General Indemnity. Whether or not any of the transactions contemplated by any of the
Loan Documents are consummated, each Obligor agrees to indemnify and defend the Indemnitees and
hold the Indemnitees harmless from and against any Claims that may be instituted or asserted
against or are incurred by any of the Indemnitees. Without limiting the generality of the
foregoing, this indemnity shall extend to any Claims instituted or asserted against or incurred by
any of the Indemnitees (x) under any Environmental Laws (or other similar laws) by reason of an
Obligors or any other Persons failure to comply with laws applicable to solid or hazardous waste
materials or other toxic substances) or (y) under any Anti-Terrorism Laws, including any fines
assessed against Agent or any Lender by any Governmental Authority as a result of conduct of an
Obligor. Additionally, if any Indemnified Taxes shall be payable by any party on account of the
execution or delivery of this Agreement, or the execution, delivery, issuance or recording of any
of the other Loan Documents, or the creation or repayment of any of the Obligations hereunder, by
reason of any Applicable Law now or hereafter in effect, Obligors shall pay (and shall promptly
reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and
penalties thereon, and will indemnify and hold Indemnitees harmless from and against all liability
in connection therewith.
15.3. Survival of and Limitations Upon Indemnities. Notwithstanding anything to the
contrary in this Agreement or any of the other Loan Documents, the obligation of each Obligor and
each Lender with respect to each indemnity given by it in this Agreement shall survive the Full
Payment of the Obligations, the termination of any of the Commitments and the resignation of Agent.
Notwithstanding anything to the contrary contained in this Agreement, no party shall have any
obligation under this Agreement to indemnify an Indemnitee with respect to any Claim to the extent
that it is determined in a final, non-appealable judgment by a court of competent jurisdiction that
such Claim resulted from the gross negligence or willful misconduct of such Indemnitee.
15.4. Modification of Agreement. This Agreement may not be modified, altered or amended,
except by an agreement in writing signed by Obligors (or Borrower Representative on behalf of
Obligors), Agent and Lenders (or, where otherwise expressly allowed by Section 13, the Required
Lenders in lieu of Agent and Lenders); provided, however, that no consent, written
or otherwise, of Obligors (or Borrower Representative) shall be necessary or required in connection
with any amendment of any of the provisions of Sections 2.3.2, 4.1.3, 5.5, or 13 (other than
Sections 13.1.3, 13.2.1, 13.8, 13.9.3, 13.9.4, 13.11 and 13.17).
15.5. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under Applicable Law, but if any provision
of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
15.6. Cumulative Effect; Conflict of Terms. The provisions of the Other Agreements and the
Security Documents are hereby made cumulative with the provisions of this Agreement. Without
limiting the generality of the foregoing, the parties acknowledge that this Agreement and the other
Loan Documents may use several different limitations, tests or measurements to regulate the same or
similar matters and that such limitations, tests and measures are cumulative and each must be
performed, except as may be expressly stated to the contrary in this Agreement. Except as
otherwise provided in any of the other Loan Documents by specific reference to the applicable
provision of this Agreement, if any
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provision contained in this Agreement is in direct conflict with, or inconsistent with, any
provision in any of the other Loan Documents, the provision contained in this Agreement shall
govern and control.
15.7. Counterparts; Facsimile Signatures. This Agreement and any amendments hereto may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument. Loan Documents may
be executed by facsimile and the effectiveness of any such Loan Documents and signatures thereon
shall, subject to Applicable Law, have the same force and effect as manually signed originals and
shall be binding on all parties thereto. Agent may require that any such documents and signatures
be confirmed by a manually-signed original thereof, provided that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile signature.
15.8. Consent. Whenever the consent of Agent or Lenders (or any combination of Lenders) is
required to be obtained under this Agreement or any of the other Loan Documents as a condition to
any action, inaction, condition or event, each party whose consent is required shall be authorized
to give or withhold its consent in its discretion and to condition its consent upon the giving of
additional collateral security for the Obligations, the payment of money or any other matter.
15.9. Notices and Communications.
15.9.1. Except as otherwise provided in Section 4.1.5, all notices, requests and other
communications to or upon a party hereto shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at the address or facsimile number for such
party on the signature pages hereof (or, in the case of a Person who becomes a Lender after the
date hereof, at the address shown on the applicable Assignment and Acceptance by which such Person
became a Lender) or at such other address or facsimile number as such party may hereafter specify
for the purpose by notice to Agent and Borrower Representative in accordance with the provisions
of this Section 15.9.
15.9.2. Except as otherwise provided in Section 4.1.5, each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified herein for the noticed party and confirmation of receipt is received,
(ii) if given by mail, 3 Business Days after such communication is deposited in the U.S. Mail,
with first-class postage pre-paid, addressed to the noticed party at the address specified herein,
or (iii) if given by personal delivery, when duly delivered with receipt acknowledged in writing
by the noticed party. In no event shall a voicemail message be effective as a notice,
communication or confirmation under any of the Loan Documents. Notwithstanding the foregoing, no
notice to or upon Agent pursuant to Sections 2.3, 3.1.2, 4.1 or 6.2.2 shall be effective until
after actually received by the individual to whose attention at Agent such notice is required to
be sent. Any written notice, request or demand that is not sent in conformity with the provisions
hereof shall nevertheless be effective on the date that such notice, request or demand is actually
received by the individual to whose attention at the noticed party such notice, request or demand
is required to be sent. Any notice received by Borrower Representative shall be deemed to have
been received by all Obligors.
15.9.3. Electronic mail and (with the permission of the noticed party) intranet websites may
be used only to distribute routine communications, such as financial statements, Borrowing Base
Certificates and other information required by Section 10.1.3, and to distribute Loan Documents
for execution by the parties thereto, and may not be used for any other purpose as effective
notice under this Agreement or any of the other Loan Documents.
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Agent and Lenders shall be authorized to rely and act upon any notices (including telephonic
communications) purportedly given by or on behalf of any Obligor even if such notices were made in
a manner other than as specified herein, were incomplete or were not preceded or followed by any
other form of notice specified or required herein, or the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Obligors jointly and severally agree to indemnify
and defend each Indemnitee from all losses, costs, expenses and liabilities resulting from the
reliance by any such Indemnitee on each telephone communication purportedly given by or on behalf
of any Obligor.
15.10. Performance of Obligors Obligations. If any Obligor shall fail to discharge any
covenant, duty or obligation hereunder or under any of the other Loan Documents, Agent may, in its
discretion at any time or from time to time, for such Obligors account and at Obligors expense,
pay any amount or do any act required of Obligors hereunder or under any of the other Loan
Documents or otherwise lawfully requested by Agent to (i) enforce any of the Loan Documents or
collect any of the Obligations, (ii) preserve, protect, insure or maintain or realize upon any of
the Collateral, or (iii) preserve, defend, protect or maintain the validity or priority of Agents
Liens in any of the Collateral, including the payment of any judgment against any Obligor, any
insurance premium, any warehouse charge, any finishing or processing charge, any landlord claim,
any other Lien upon or with respect to any of the Collateral (whether or not a Permitted Lien).
All payments that Agent may make under this Section and all out-of-pocket costs and expenses
(including Extraordinary Expenses) that Agent pays or incurs in connection with any action taken by
it hereunder shall be reimbursed to Agent by Obligors, on demand, with interest from the date such
payment is made or such costs or expenses are incurred to the date of payment thereof at the
Default Rate applicable for Revolver Loans that are Base Rate Loans. Any payment made or other
action taken by Agent under this Section shall be without prejudice to any right to assert, and
without waiver of, an Event of Default hereunder and to without prejudice to Agents right proceed
thereafter as provided herein or in any of the other Loan Documents.
15.11. Credit Inquiries. Each Obligor hereby authorizes and permits Agent and Lenders (but
Agent and Lenders shall have no obligation) to respond to usual and customary credit inquiries from
third parties concerning such Obligor or any of its Subsidiaries.
15.12. Time of Essence. Time is of the essence of this Agreement, the Other Agreements and
the Security Documents.
15.13. Indulgences Not Waivers. Agents or any Lenders failure at any time or times
hereafter, to require strict performance by Obligors of any provision of this Agreement shall not
waive, affect or diminish any right of Agent or any Lender thereafter to demand strict compliance
and performance therewith.
15.14. Entire Agreement; Exhibits and Schedules. This Agreement and the other Loan
Documents, together with all other instruments, agreements and certificates executed by the parties
pursuant to any Loan Document, embody the entire understanding and agreement between the parties
hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior
agreements, understandings and inducements, whether express or implied, oral or written, regarding
the same subject matter. Each of the Exhibits and each of the Schedules attached hereto are
incorporated into this Agreement and by this reference made a part hereof.
15.15. Interpretation. No provision of this Agreement or any of the other Loan Documents
shall be construed against or interpreted to the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of such party having, or being deemed to have,
structured, drafted or dictated such provision. The paragraph and section headings are for
convenience of reference only and shall not affect the substantive meaning of any provision of this
Agreement.
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15.16. Obligations of Lenders Several. The obligations of each Lender hereunder are several,
and no Lender shall be responsible for the obligations or Commitment of any other Lender. Nothing
contained in this Agreement and no action taken by Lenders pursuant hereto shall be deemed to
constitute Lenders to be a partnership, association, joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled, to the extent not otherwise restricted hereunder, to protect and
enforce its rights arising out of this Agreement and any of the other Loan Documents and it shall
not be necessary for Agent or any other Lender to be joined as an additional party in any
proceeding for such purpose.
15.17. Confidentiality. Each of Agent and each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of any confidential information
that is delivered or made available by Obligors to it and that is marked or otherwise identified by
Obligors as confidential, (including information made available to Agent or any Lender in
connection with a visit or investigation by any Person contemplated in Section 10.1.1), for a
period of 24 months following the Commitment Termination Date, except that Agent and any Lender may
disclose such information (i) to their respective Affiliates and individuals employed or retained
by Agent or such Lender who are or are expected to become engaged in evaluating, approving,
structuring, administering or otherwise giving professional advice with respect to any of the Loans
or Collateral, including any of their respective legal counsel, auditors or other professional
advisors; (ii) to any party to this Agreement from time to time or any Participant, (iii) pursuant
the order of any court or administrative agency, (iv) upon the request or demand of any regulatory
agency or other Governmental Authority having jurisdiction over Agent or such Lender or in
accordance with Agents or Lenders regulatory compliance policies, (v) which has ceased to be
confidential other than by an act or omission of Agent or any Lender except as permitted herein or
which becomes available to Agent or any Lender on a nonconfidential basis from a source other than
Obligors, (vi) to the extent reasonably required in connection with any litigation (with respect to
any of the Loan Documents or any of the transactions contemplated thereby) to which Agent, any
Lender or their respective Affiliates may be a party, (vii) to the extent reasonably required in
connection with the exercise of any remedies hereunder, (viii) to any actual or proposed
Participant, Assignee, counterparty or advisors to any swap or derivative transactions relating to
Obligors and the Obligations, or any other Transferee of all or part of a Lenders rights hereunder
so long as such Person has agreed in writing to be bound by the provisions of this Section, (ix) to
the National Association of Insurance Commissioners or any similar organization or to any
nationally recognized rating agency that requires access to information about a Lenders portfolio
in connection with ratings issued with respect to such Lender, (x) to the extent required (on the
advice of Agents or such Lenders counsel) by Applicable Law, or (xi) with the consent of the
affected Obligor.
15.18. Amendment and Restatement. This Agreement and the other Loan Documents amend and
restate the Existing Loan Agreement and the other Loan Documents (as defined in the Existing Loan
Agreement). All rights, benefits, indebtedness, interests, liabilities and obligations of the
parties to the Existing Loan Agreement and the agreements, documents and instruments executed and
delivered in connection with the Existing Loan Agreement (collectively, the Existing Loan
Documents) are hereby renewed, amended, restated and superseded in their entirety according to
the terms and provisions set forth herein and in the other Loan Documents. This Agreement does not
constitute, nor shall it result in, a waiver of or release, discharge or forgiveness of any amount
payable pursuant to the Existing Loan Documents or any indebtedness, liabilities or obligations of
Obligors thereunder, all of which are renewed and continued and are hereafter payable and to be
performed in accordance with this Agreement and the other Loan Documents. Neither this Agreement
nor any other Loan Document extinguishes the indebtedness or liabilities outstanding in connection
with the Existing Loan Documents, nor do they constitute a novation with respect thereto. To the
extent set forth in Section 7.1, all security interests, pledges, assignments and other Liens
previously granted by any Obligor pursuant to the Existing Loan Documents are hereby renewed and
continued, and all such security interests, pledges, assignments and
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other Liens shall remain in full force and effect as security for the Obligations except as
modified by the provisions hereof. Amounts in respect of interest, fees and other amounts payable
to or for the account of Agent, Issuing Bank and Lenders shall be calculated (i) in accordance with
the provisions of the Existing Loan Agreement with respect to any period (or a portion of any
period) ending prior to the Closing Date, and (ii) in accordance with the provisions of this
Agreement with respect to any period (or a portion of any period) commencing on or after the
Closing Date.
15.19. USA PATRIOT Act Notice. Agent and Lenders hereby notify Borrowers that pursuant to
the requirements of the Patriot Act, Agent and Lenders are required to obtain, verify and record
information that identifies each Borrower, including its legal name, address, tax ID number and
other information that will allow Agent and Lenders to identify it in accordance with the Patriot
Act. Agent and Lenders will also require information regarding each personal guarantor, if any,
and may require information regarding Borrowers management and owners, such as legal name,
address, social security number and date of birth.
15.20. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated by any Loan Document, Borrowers acknowledge and agree that (a)(i)
this credit facility and any related arranging or other services by Agent, any Lender, any of their
Affiliates or any arranger are arms-length commercial transactions between Borrowers and such
Person; (ii) Borrowers have consulted their own legal, accounting, regulatory and tax advisors to
the extent they have deemed appropriate; and (iii) Borrowers are capable of evaluating, and
understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan
Documents; (b) each of Agent, Lenders, their Affiliates and any arranger is and has been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for Borrowers, any of their
Affiliates or any other Person, and has no obligation with respect to the transactions contemplated
by the Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their
Affiliates and any arranger may be engaged in a broad range of transactions that involve interests
that differ from those of Borrowers and their Affiliates, and have no obligation to disclose any of
such interests to Borrowers or their Affiliates. To the fullest extent permitted by Applicable
Law, each Borrower hereby waives and releases any claims that it may have against Agent, Lenders,
their Affiliates and any arranger with respect to any breach of agency or fiduciary duty in
connection with any transaction contemplated by a Loan Document.
15.21. Governing Law. This Agreement shall be governed by and construed in accordance with
the internal laws (but without regard to conflict of law principles) of the State of North
Carolina, but giving effect to federal laws relating to national banks.
15.22. Consent to Forum. Each Obligor hereby consents to the non-exclusive jurisdiction of any
United States federal court sitting in or with direct or indirect jurisdiction over the Western
District of North Carolina or in any North Carolina state court sitting in Mecklenburg County,
North Carolina, in any action, suit or other proceeding arising out of or relating to this
Agreement or any of the other Loan Documents and each Obligor irrevocably agrees that all claims
and demands in respect of any such action, suit or proceeding may be heard and determined in any
such court and irrevocably waives any objection it may now or hereafter have as to the venue of any
such action, suit or proceeding brought in any such court or that such court is an inconvenient
forum. Nothing herein shall limit the right of Agent or any Lender to bring proceedings against
any Obligor or with respect to any Collateral in the courts of any other jurisdiction. Any
judicial proceeding commenced by any Obligor against Agent, BofA, any Lender or any holder of any
of the Obligations, or any Affiliate of Agent, BofA, any Lender or any holder of any Obligations,
involving, directly or indirectly, any matter in any way arising out of, related to or connected
with any Loan Document shall be brought only in a United States federal court sitting in or with
direct jurisdiction over the Western District of North Carolina or in any North Carolina state
court
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sitting in Mecklenburg County, North Carolina. Nothing in this Agreement shall be deemed to
preclude the enforcement by Agent of any judgment or order obtained in such forum or the taking of
any action under this Agreement to enforce same in any other appropriate forum or jurisdiction.
15.23. Waivers.
15.23.1 To the fullest extent permitted by Applicable Law, Agent, each Lender and each Obligor
waives (i) the right to trial by jury in any action, suit, proceeding or counterclaim of any kind
arising out of or related to any of the Loan Documents, the Obligations or the Collateral; and (ii)
any claim against any party hereto, on any theory of liability, for special, indirect,
consequential, exemplary or punitive damages (as opposed to direct or actual damages) in respect of
any claim for breach of contract or any other theory of liability arising out of, or the taking of
any Enforcement Action, or related to any of the Loan Documents, any transaction thereunder or the
use of the proceeds of any Loans.
15.23.2 To the fullest extent permitted by Applicable Law, each Obligor waives (i)
presentment, demand and protest and notice of presentment, protest, default, non payment, maturity,
release, compromise, settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any time held by Agent on
which such Obligor may in any way be liable and hereby ratifies and confirms whatever Agent may do
in this regard; (ii) notice prior to taking possession or control of the Collateral or any bond or
security which might be required by any court prior to allowing Agent to exercise any of Agents
remedies; (iii) the benefit of all valuation, appraisement and exemption laws; and (iv) notice of
acceptance hereof.
15.23.3 Each party hereto acknowledges that the foregoing waivers are a material inducement to
the other parties entering into this Agreement and that each other party hereto is relying upon the
foregoing waivers in its future dealings with such party. Each party hereto warrants and
represents that it has reviewed the foregoing waivers with its legal counsel and has knowingly and
voluntarily waived its jury trial rights following consultation with legal counsel. In the event
of litigation, this Agreement may be filed as a written consent to a trial by the Court.
[Remainder of page intentionally left blank; signatures begin on following page]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on the day and
year specified at the beginning of this Agreement.
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BORROWERS: |
COLTEC INDUSTRIES INC
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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COLTEC INDUSTRIAL PRODUCTS LLC
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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GGB LLC
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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CORROSION CONTROL CORPORATION
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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STEMCO LP
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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[Signatures continue on following page.]
Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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STEMCO KAISER INCORPORATED
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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Address for all Borrowers:
5605 Carnegie Boulevard
Suite 500
Charlotte, North Carolina 28209-4674
Facsimile: (704) 731-1569
Attn: Treasurer
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GUARANTORS: |
ENPRO INDUSTRIES, INC.
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Vice President and Treasurer |
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COLTEC INTERNATIONAL SERVICES CO.
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By: |
/s/ Richard L. Magee
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Name: |
Richard L. Magee |
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Title: |
President |
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GGB, INC.
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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[Signatures continue on following page.]
Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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STEMCO HOLDINGS, INC.
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By: |
/s/ Robert P. McKinney
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Name: |
Robert P. McKinney |
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Title: |
Vice President |
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COMPRESSOR PRODUCTS HOLDINGS, INC.
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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COMPRESSOR SERVICES HOLDINGS, INC.
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By: |
/s/ Orville G. Lunking
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Name: |
Orville G. Lunking |
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Title: |
Treasurer |
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Address for all Guarantors:
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5605 Carnegie Boulevard |
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Suite 500
Charlotte, North Carolina 28209-4674
Facsimile: (704) 731-1569
Attn: Treasurer |
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[Signatures continue on following page.]
Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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LENDERS: |
BANK OF AMERICA, N.A.,
as a Lender and Issuing Bank
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Revolver Commitment: $55,000,000 |
By: |
/s/ Andrew A. Doherty
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Name: |
Andrew A. Doherty |
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Title: |
Senior Vice President |
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LIBOR Lending Office:
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300 Galleria Parkway, Suite 800 |
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Atlanta, Georgia 30339
Attention: Loan Administration Officer EnPro
Telecopier No.: (404) 607-3276
(404) 607-3277 |
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Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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SUNTRUST BANK
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Revolver Commitment: $35,000,000 |
By: |
/s/ Nigel Fabien
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Name: |
Nigel Fabien |
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Title: |
Vice President |
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LIBOR Lending Office:
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211 Perimeter Ctr. Pkwy. |
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Atlanta, Georgia 30346
Attention: Tomika Wing
Telecopier No.: (404) 588-4406 |
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Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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WELLS FARGO BANK, NATIONAL ASSOCIATION
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Revolver Commitment: $35,000,000 |
By: |
/s/ Mark Bradford
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Name: |
Mark Bradford |
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Title: |
Vice President |
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LIBOR Lending Office:
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Wells Fargo Capital Finance |
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301 South College Street
Charlotte, NC 28202
Attention: Lynn Stone
Telecopier No.: (704) 715-0016 |
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Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
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AGENT: |
BANK OF AMERICA, N.A.,
as Agent
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By: |
/s/ Andrew A. Doherty
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Name: |
Andrew A. Doherty |
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Title: |
Senior Vice President |
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Address:
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300 Galleria Parkway, NW Suite 800 |
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Atlanta, Georgia 30339
Attention: Loan Administration Officer EnPro
Telecopier No.: (404) 607-3276
(404) 607-3277 |
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Second Amended and Restated Loan and Security Agreement EnPro Industries, Inc.
EXHIBIT A
COMPLIANCE CERTIFICATE
[Letterhead of Borrower]
__________________, 20__
Bank of America, N.A., as Agent
300 Galleria Parkway, N.W. Suite 800
Atlanta, Georgia 30339
The undersigned, the ___________________ [insert title of applicable financial officer signing
the certificate] of EnPro Industries Inc., a North Carolina corporation (Parent), gives
this certificate in his official capacity, and not individually, to Bank of America, N.A., a
national banking association, in its capacity as collateral and administrative agent
(Agent), in accordance with the requirements of Section 10.1.3 of that certain Second
Amended and Restated Loan and Security Agreement dated March __, 2011, among Parent and certain of
its Affiliates, Agent and the Lenders referenced therein (as at any time amended, modified,
restated or supplemented, the Loan Agreement). Capitalized terms used in this
Certificate, unless otherwise defined herein, shall have the meanings ascribed to them in the Loan
Agreement.
1. [To the extent that a Covenant Trigger has occurred and is in effect] Based upon my review
of the balance sheets and statements of income of Obligors and their Subsidiaries for the [Fiscal
Year] [fiscal month period] ending __________________, 20__, copies of which are attached hereto, I
hereby certify that the Fixed Charge Coverage Ratio is _____ to 1.0.
2. No Default exists on the date hereof, other than: ______________ [if none, so state].
3. No Event of Default exists on the date hereof, other than ________________________________
[if none, so state].
4. [To the extent that a Covenant Trigger has occurred and is in effect] Attached hereto is a
schedule showing the calculations that support Borrowers compliance [non-compliance] with the
financial covenants, as shown above.
5. Attached hereto is a schedule showing all locations of Inventory and records relating to
Collateral that have been established since the delivery of the most recently delivered compliance
certificate, other than any such new locations for which Obligors are not required to provide Agent
notice pursuant to Section 8.1.1 of the Loan Agreement.
6. Average Availability for the immediately preceding Fiscal Quarter is [$______________], the
calculation of which is set forth on Annex A attached hereto.
EXHIBIT B
FORM OF OPINION LETTERS
March 31, 2011
Bank of America, N.A., as Agent
300 Galleria Parkway, NW, Suite 800
Atlanta, GA 30339
Attention: Loan Administration Officer EnPro
The Lenders
from time to time party to the
Loan Agreement referred to below
Ladies and Gentlemen:
I am Vice President, Legal to EnPro Industries, Inc., a North Carolina corporation
(Parent) and have acted as counsel to Parent, Coltec Industries Inc, a Pennsylvania
corporation (Coltec), Coltec Industrial Products LLC, a Delaware limited liability
company (CIP), GGB LLC, a Delaware limited liability company (GGB LLC),
Corrosion Control Corporation, a Colorado corporation (CCC), Stemco LP, a Texas limited
partnership (Stemco LP (TX)), and STEMCO Kaiser Incorporated, a Michigan corporation
(Kaiser; Coltec, CIP, GGB LLC, CCC, Stemco LP (TX) and Kaiser each individually referred
to herein as a Borrower and collectively as the Borrowers); Coltec
International Services Co., a Delaware corporation (Coltec International), GGB, Inc., a
Delaware corporation (GGB Inc.), Stemco Holdings, Inc., a Delaware corporation
(Stemco Holdings), Compressor Products Holdings, Inc., a Delaware corporation
(Compressor Products), and Compressor Services Holdings, Inc., a Delaware corporation
(Compressor Services; Coltec International, GGB Inc., Stemco Holdings, Compressor
Products, and Compressor Services each individually referred to herein as a Subsidiary
Guarantor and collectively as the Subsidiary Guarantors and together with Parent,
the Guarantors; the Borrowers and the Guarantors being referred to herein as the
Loan Parties), in connection with the Loan Agreement referred to hereinbelow. This
opinion letter is being delivered pursuant to Section 11.1.6 of the Loan Agreement. Capitalized
terms used herein but not otherwise defined herein shall have the respective meanings accorded such
terms in the Loan Agreement.
In connection with this opinion, I have examined fully-executed originals, or copies
identified to my satisfaction, of the following documents, each of which is dated as of the date
hereof unless otherwise indicated:
(1) the Second Amended and Restated Loan and Security Agreement (the Loan Agreement)
between Wells Fargo Bank, National Association, SunTrust Bank and Bank of America, N.A., as lenders
(collectively, the Lenders), Bank of America, N.A., as agent for the Lenders (in such
capacity, the Agent) (the Lenders and the Agent collectively being referred to herein as
the Lender Parties) and the Loan Parties;
Bank of America, N.A., as Agent
and the other Lender Parties
Page 2
(2) the Second Amended and Restated Parent Guarantee (the Parent Guarantee) made by
Parent in favor of the Agent;
(3) the Second Amended and Restated Subsidiary Guarantee (the Subsidiary Guarantee)
made by the Subsidiary Guarantors in favor of the Agent;
(4) the Second Amended and Restated Trademark Security Agreement, the Second Amended and
Restated Patent Security Agreement, and the Second Amended and Restated Copyright Security
Agreement (collectively, the Intellectual Property Security Agreements) between the Loan
Parties party thereto and the Agent;
(5) the Second Amended and Restated Intercompany Subordination Agreement, between the Loan
Parties party thereto and the Agent; and
(6) Uniform Commercial Code (UCC) financing statements listed on Schedule A hereto
(the Financing Statements), each naming a Loan Party as debtor and the Agent as secured
party and describing certain collateral pledged to the Agent under the Loan Agreement and the
Intellectual Property Security Agreements, to be filed in the offices (the Filing
Offices) shown on Schedule A.
The documents referenced in (1) (5) above are collectively referred to herein as the
Loan Documents.
In connection with this opinion, I also have examined originals, or copies identified to my
satisfaction, of such other documents and considered such matters of law and fact as I, in my
professional judgment, have deemed appropriate to render the opinions contained herein. Where I
have considered it appropriate, as to certain facts I have relied, without investigation or
analysis of any underlying data contained therein, upon certificates, written statements or other
comparable documents of public officials and officers or other appropriate representatives of the
Loan Parties.
In rendering the opinions contained herein, I have assumed, among other things: the legal
capacity of all natural persons; the genuineness of all signatures not signed in my presence; the
authenticity of all documents submitted to me as originals; that all documents submitted to me as
copies conform with the originals thereof; that the Loan Documents fully state the agreement
between the Loan Parties and the Lender Parties with respect to the matters stated therein and are
intended to be the final, complete and exclusive expression of the agreement between the Loan
Parties, the Agent and the Lenders; and the regularity and completeness of the Loan Parties
corporate, limited liability company and limited partnership minutes, stock books and membership or
partnership records, and other corporate, limited liability company and partnership company
records. I have also assumed the due authorization, execution and delivery of the Loan Documents
by all parties thereto (other than the Loan Parties) and the binding effect of such documents on
such parties.
Bank of America, N.A., as Agent
and the other Lender Parties
Page 3
The phrases to my knowledge and known to me mean my conscious awareness, without
independent investigation, of factual matters that I recognize as being relevant to the opinion or
confirmation so qualified.
Based upon and subject to the foregoing and the further limitations and qualifications
hereinafter expressed, it is my opinion that:
1. Each Loan Party is a corporation, limited liability company or limited partnership in
existence under the laws of its jurisdiction of organization, and is qualified to do business as a
foreign corporation, limited liability company or limited partnership under the laws of every state
in which its principal place of business is located as of the date hereof.
2. Each Loan Party has the corporate, limited liability company or limited partnership power
to execute, deliver and perform its obligations under the Loan Documents to which it is a party.
3. Each Loan Party has authorized the execution, delivery and performance of its obligations
under the Loan Documents to which it is a party by all necessary corporate, limited liability
company or limited partnership action on its part. Each Loan Party has authorized the filing of
each Financing Statement naming such Loan Party as debtor.
4. Each Loan Party has duly executed and delivered each Loan Document to which it is a party.
5. The execution and delivery by each Loan Party of the Loan Documents to which it is a party,
and the performance by such Loan Party of its obligations thereunder, (i) do not violate any Loan
Partys articles or certificate of incorporation, organization or formation, as applicable, or
bylaws, operating agreement or partnership agreement, as applicable, and (ii) do not breach or
result in a default under the Convertible Debentures Indenture or any Material Contract to which
any Loan Party is bound.
6. No consent, approval or other authorization of or by any court, administrative agency or
other governmental authority is required in connection with the execution and delivery by the Loan
Parties of the Loan Documents that has not already been obtained by the Loan Parties.
The opinions expressed above are further subject to the following qualifications and
limitations:
A. I express no opinion as to, or the effect or applicability of, any laws other than the laws
of the State of North Carolina, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. With respect to opinions relating to Loan Parties or
matters governed by the laws of any other jurisdiction, I have assumed that any applicable
provisions of such laws are identical in all respects to the laws of the State of North Carolina.
Except as expressly provided in this paragraph, I express no opinion concerning any matter
respecting or affected by any laws other than laws that a lawyer in North Carolina
Bank of America, N.A., as Agent
and the other Lender Parties
Page 4
exercising customary professional diligence would reasonably recognize as being directly
applicable to the Loan Parties, the Loan Documents or any of them.
B. The opinions in paragraph 1 above, with respect to the existence and foreign qualification
of the Loan Parties, are based solely on the examination of certificates of existence or good
standing issued by the secretary of state of the jurisdiction of organization of each such Loan
Party and reports of CT Corporation Service as to the foreign qualifications of each Loan Party in
the jurisdiction in which the principal place of business of each such Loan Party is located.
* * *
In addition, I advise you that, to my knowledge, (i) there is no action, suit or proceeding at
law or in equity, or by or before any governmental instrumentality or agency or arbitral body, now
pending or overtly threatened against any Loan Party, that challenges the transactions contemplated
by, or the validity or enforceability of, the Loan Documents, and (ii) the execution and delivery
by each Loan Party of the Loan Documents to which it is a party, and the performance by such Loan
Party of its obligations thereunder, do not violate the terms of any judicial or administrative
judgment, order, decree or arbitral decision that names any Loan Party and is specifically directed
to it or its properties.
* * *
This opinion letter is delivered solely for the benefit of the Lender Parties in connection
with the execution and delivery of the Loan Documents and the transactions contemplated thereby;
provided, however, that (A) this opinion letter may be relied upon by Robinson,
Bradshaw & Hinson, P.A. in connection with the opinions it is rendering in connection with the Loan
Documents, and (B) at your request, I hereby consent to reliance hereon by any future assignee of
such parties interests in the loans under the Loan Agreement pursuant to an assignment that is
made and consented to in accordance with the express provisions of Section 14.3 of the Loan
Agreement (each, a Future Assignee), on the condition and understanding that (i) this
letter speaks only as of the date hereof, (ii) I have no responsibility or obligation to update
this letter, to consider its applicability or correctness to any person other than its original
addressees, or to take into account changes in law, facts or any other developments of which I may
later become aware, and (iii) any such reliance by a Future Assignee must be actual and reasonable
under the circumstances existing at the time of assignment, including any changes in law, facts or
any other developments known to or reasonably knowable by the assignee at such time. Copies of
this opinion letter may not be furnished to any other person without my prior written consent,
except that each Lender Party and each permitted assignee may furnish copies hereof (i) to its
independent auditors and attorneys, (ii) in connection with a review of the Loan Documents and
transactions related thereto by a regulatory agency having supervisory authority over it for the
purpose of confirming the existence of this opinion, (iii) in response to a court order or other
appropriate legal process, and (iv) to any Future Assignee, subject to the conditions set forth
above. My opinions expressed herein are as of the date hereof, and I
Bank of America, N.A., as Agent
and the other Lender Parties
Page 5
undertake no obligation to advise you of any changes of applicable law or any other matters
that may come to my attention after the date hereof that may affect my opinions expressed herein.
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Sincerely yours,
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Robert S. McLean |
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Vice President, Legal
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cc: Robinson, Bradshaw & Hinson, P.A. |
Schedule A
Financing Statements and Filing Offices
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Loan Party |
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Filing Office |
Coltec Industries Inc
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Pennsylvania Department of State |
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Coltec Industrial Products LLC
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Delaware Secretary of State |
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GGB LLC
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Delaware Secretary of State |
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Corrosion Control Corporation
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Colorado Secretary of State |
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Stemco LP
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Texas Secretary of State |
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STEMCO Kaiser Incorporated
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Michigan Secretary of State |
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EnPro Industries, Inc.
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North Carolina Secretary of State |
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Coltec International Services Co
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Delaware Secretary of State |
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GGB, Inc.
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Delaware Secretary of State |
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Stemco Holdings, Inc.
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Delaware Secretary of State |
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Compressor Products Holdings, Inc.
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Delaware Secretary of State |
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Compressor Services Holdings, Inc.
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Delaware Secretary of State |
March 31, 2011
Bank of America, N.A., as Agent
300 Galleria Parkway, NW, Suite 800
Atlanta, GA 30339
Attention: Loan Administration Officer EnPro
The Lenders
from time to time party to the
Loan Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to Coltec Industries Inc, a Pennsylvania corporation
(Coltec), Coltec Industrial Products LLC, a Delaware limited liability company
(CIP), GGB LLC, a Delaware limited liability company (GGB LLC), Corrosion
Control Corporation, a Colorado corporation (CCC), Stemco LP, a Texas limited partnership
(Stemco LP (TX)), and STEMCO Kaiser Incorporated, a Michigan corporation
(Kaiser; Coltec, CIP, GGB LLC, CCC, Stemco LP (TX) and Kaiser each individually referred
to herein as a Borrower and collectively as the Borrowers); EnPro Industries,
Inc., a North Carolina corporation (Parent); Coltec International Services Co., a
Delaware corporation (Coltec International), GGB, Inc., a Delaware corporation (GGB
Inc.), Stemco Holdings, Inc., a Delaware corporation (Stemco Holdings), Compressor
Products Holdings, Inc., a Delaware corporation (Compressor Products), and Compressor
Services Holdings, Inc., a Delaware corporation (Compressor Services; Coltec
International, GGB Inc., Stemco Holdings, Compressor Products, and Compressor Services each
individually referred to herein as a Subsidiary Guarantor and collectively as the
Subsidiary Guarantors and together with Parent, the Guarantors; the Borrowers
and the Guarantors being referred to herein as the Loan Parties), in connection with the
Loan Agreement referred to hereinbelow. This opinion letter is being delivered pursuant to Section
11.1.6 of the Loan Agreement referred to below. Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings accorded such terms in the Loan Agreement.
In connection with this opinion, we have examined fully-executed originals, or copies
identified to our satisfaction, of the following documents, each of which is dated as of the date
hereof unless otherwise indicated:
(1) the Second Amended and Restated Loan and Security Agreement (the Loan Agreement)
between Wells Fargo Bank, National Association, SunTrust Bank and Bank of America, N.A., as lenders
(collectively, the Lenders), Bank of America, N.A., as agent for the Lenders (in such
capacity, the Agent) (the Lenders and the Agent collectively being referred to herein as
the Lender Parties) and the Loan Parties;
(2) the Second Amended and Restated Parent Guarantee (the Parent Guarantee) made by
Parent in favor of the Agent;
Bank of America, N.A., as Agent
March 31, 2011
Page 2
(3) the Second Amended and Restated Subsidiary Guarantee (the Subsidiary Guarantee)
made by the Subsidiary Guarantors in favor of the Agent;
(4) the Second Amended and Restated Trademark Security Agreement, the Second Amended and
Restated Patent Security Agreement, and the Second Amended and Restated Copyright Security
Agreement (collectively, the Intellectual Property Security Agreements) between the Loan
Parties party thereto and the Agent;
(5) the Second Amended and Restated Intercompany Subordination Agreement, between the Loan
Parties party thereto and the Agent; and
(6) Uniform Commercial Code (UCC) financing statements listed on Schedule A hereto,
in the form attached as Exhibit A hereto (the Financing Statements), each naming a Loan
Party as debtor and the Agent as secured party and describing certain collateral pledged to the
Agent under the Loan Agreement and the Intellectual Property Security Agreements, to be filed in
the offices (the Filing Offices) shown on Schedule A.
The documents referenced in (1) (5) above are collectively referred to herein as the
Loan Documents.
In connection with this opinion we also have examined originals, or copies identified to our
satisfaction, of such other documents and considered such matters of law and fact as we, in our
professional judgment, have deemed appropriate to render the opinions contained herein. Where we
have considered it appropriate, as to certain facts we have relied, without investigation or
analysis of any underlying data contained therein, upon certificates, statements (including
representations and warranties in the Loan Documents) or other comparable documents of public
officials and officers or other appropriate representatives of the Loan Parties.
In rendering the opinions contained herein, we have assumed, among other things: the
correctness of the opinions stated in the opinion letter of Robert S. McLean, Vice President -
Legal to Parent, delivered to you as of the date hereof; the legal capacity of all natural persons;
the authenticity of all documents submitted to us as originals; that all documents submitted to us
as copies conform with the originals thereof; that the Loan Documents fully state the agreement
between the Loan Parties and the Lender Parties with respect to the matters stated therein and are
intended to be the final, complete and exclusive expression of the agreement between the Loan
Parties, the Agent and the Lenders; that the Loan Documents constitute legal, valid and binding
obligations of the parties thereto other than the Loan Parties, enforceable against such parties in
accordance with their respective terms; that the Loan Documents were not executed or delivered
under fraud, duress or mistake; that when exercising rights and remedies under the Loan Documents,
each Lender Party will act in good faith; that all attachments, schedules and exhibits referenced
in each of the Financing Statements shall be correctly and properly attached to and filed or
recorded with such Financing Statements; that the Loan Documents have been duly authorized,
executed and delivered by each Lender Party party thereto and are within the corporate power of
each Lender Party party thereto; that each of the Loan Parties has sufficient rights in the
Collateral, and has received sufficient value and consideration in connection with the security
interest granted under the Loan Agreement and the Intellectual Property Security
Bank of America, N.A., as Agent
March 31, 2011
Page 3
Agreements for the security interest of the Lender Parties set forth therein to attach; and
that each of the Loan Agreement and the Intellectual Property Security Agreements and each
Financing Statement reasonably identifies the collateral subject thereto.
The phrases to our knowledge and known to us mean the conscious awareness, without
independent investigation, by lawyers in the primary lawyer group of factual matters such lawyers
recognize as being relevant to the opinion or confirmation so qualified. Primary lawyer group
means any lawyer in this firm (i) who signs this opinion letter or (ii) who is actively involved in
negotiating or preparing the Loan Documents.
The opinions set forth herein are limited to matters governed by the laws of the State of
North Carolina, the federal laws of the United States, and certain provisions of the UCCs of the
States of Delaware, Colorado, Michigan, Texas and the Commonwealth of Pennsylvania, as set forth in
paragraph P below, and no opinion is expressed herein as to any other laws, including the laws of
any other jurisdiction. For purposes of our opinions, we have disregarded any choice of law
provisions in the Loan Documents and, instead, have assumed that the Loan Documents are governed
exclusively by the internal, substantive laws and judicial interpretations of the State of North
Carolina. We express no opinion concerning any matter respecting or affected by any laws other
than laws that a lawyer in North Carolina exercising customary professional diligence would
reasonably recognize as being directly applicable to the Loan Parties, the Loan Documents or any of
them, and we express no opinion regarding compliance with antitrust and unfair competition laws,
securities laws, tax laws, zoning and land use laws, bank regulatory laws or environmental laws or
regulations.
Based upon and subject to the foregoing and the further limitations and qualifications
hereinafter expressed, it is our opinion that:
1. Each of the Loan Documents constitutes the legal, valid and binding obligation of each of
the Loan Parties party thereto, enforceable against each such Loan Party in accordance with its
terms.
2. The provisions of the Loan Agreement and the Intellectual Property Security Agreements are
sufficient to create in favor of the Agent, for the benefit of the Secured Parties, a security
interest in the applicable Loan Parties interest in the collateral described therein in which a
security interest may be created under Article 9 of the UCC as in effect in North Carolina.
3. The Financing Statements are in proper form for filing with the Filing Offices. Assuming
value has been given by the Lenders, and upon the proper filing of the Financing Statements in the
Filing Offices and payment of all filing fees, the Agent will have a perfected security interest in
the Loan Parties right, title and interest in the collateral described in such Financing
Statements (other than goods that are or are to become fixtures), but only to the extent that such
collateral is also described in the Loan Agreement or any Intellectual Property Security Agreement
and a security interest in such collateral may be perfected by the filing of a financing statement
pursuant to Article 9 of the UCC as in effect in North Carolina, Delaware, Pennsylvania, Colorado,
Michigan and Texas (the States), as applicable.
Bank of America, N.A., as Agent
March 31, 2011
Page 4
4. None of the Loan Parties is an investment company within the meaning of the Investment
Company Act of 1940, as amended, or, to our knowledge, controlled by such a company within the
meaning of the Investment Company Act of 1940, as amended.
5. The Loan Documents do not provide for collection of interest or fees in excess of those
permitted by the usury laws of the State of North Carolina.
6. The execution and delivery by each Loan Party of the Loan Documents to which it is a party,
and the performance by each Loan Party of its obligations thereunder, do not violate applicable
provisions of statutory laws or regulations applicable to such Loan Party.
The opinions expressed above are subject to the following qualifications and limitations:
A. Enforcement of the Loan Documents is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting the
enforcement of creditors rights generally.
B. Enforcement of the Loan Documents is subject to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law) by which a court with proper
jurisdiction may deny rights of specific performance, injunction, self-help, possessory remedies or
other remedies.
C. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents that (i) purport to excuse a party for liability for its own acts, (ii) purport to
make void any act done in contravention thereof, (iii) purport to authorize a party to act in its
sole discretion, (iv) require waivers or amendments to be made only in writing, (v) purport to
effect waivers of constitutional, statutory or equitable rights or the effect of applicable laws,
(vi) impose liquidated damages, penalties or forfeiture, or (vii) purport to indemnify a party for
its own negligence or willful misconduct. Indemnification provisions in the Loan Documents are
subject to and may be rendered unenforceable by applicable law or public policy, including
applicable securities law.
D. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents purporting to require a party thereto to pay or reimburse attorneys fees incurred
by another party, or to indemnify another party therefor, which may be limited by applicable
statutes and decisions relating to the collection and award of attorneys fees, including but not
limited to North Carolina General Statutes § 6-21.2.
E. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents purporting to waive the right of jury trial. Under North Carolina General Statutes
§ 22B-10, a provision for the waiver of the right to a jury trial is unconscionable and
unenforceable.
F. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents concerning choice of forum or consent to the jurisdiction of courts, venue of
actions or means of service of process.
Bank of America, N.A., as Agent
March 31, 2011
Page 5
G. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents purporting to reconstitute or change the terms thereof, or providing for rebates or
credits, as necessary to avoid a claim or defense of usury.
H. We assume that the prime rate of interest, as prescribed in the Loan Documents, is a
readily ascertainable rate of interest and that the Loan Parties would be able to ascertain the
rates so described at all times during the term of the credit facility contemplated by the Loan
Documents.
I. It is likely that North Carolina courts will enforce the provisions of the Loan Documents
providing for interest at a default rate that is higher than the rate otherwise stipulated in the
Loan Documents. The law, however, disfavors penalties, and it is possible that interest at a
default rate may be held to be an unenforceable penalty to the extent such rate exceeds the rate
applicable prior to a default under the Loan Documents.
J. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents relating to evidentiary standards or other standards by which the Loan Documents are
to be construed.
K. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents whereby any Loan Party appoints any Lender Party or other parties as an agent or
attorney-in-fact.
L. The Loan Documents contain provisions to the effect that the acceptance by the Lender
Parties of a past due installment or other performance from any Loan Party shall not be deemed a
waiver of its right to accelerate the Obligations of such Loan Party. We are unable to opine that
the above-described provisions would be enforceable under all circumstances unless the applicable
Lender Parties shall: (i) first provide written notice to such Loan Party that subsequent defaults
will not be accepted but will result in the Loan Partys being declared in default under the Loan
Documents; and (ii) thereafter timely and diligently pursue their default remedies under the Loan
Documents.
M. We do not express any opinion as to the enforceability of any provisions contained in the
Loan Documents that purport to grant any Lender Party (i) the right, without judicial process, to
obtain possession of or a present ownership in any assets or (ii) any rights of set-off.
N. Enforcement of the guarantees provided in the Subsidiary Guarantee and Parent Guarantee may
be limited by the provisions of Chapter 26 of the North Carolina General Statutes, and we express
no opinion as to the effectiveness of any waiver by any Guarantor of its rights under that Chapter.
O. Certain of the remedies provided under the terms of the Loan Documents may be further
limited or rendered unenforceable by applicable law, but in our opinion such law does not, subject
to the other qualifications and exceptions stated elsewhere in this opinion, make the
Bank of America, N.A., as Agent
March 31, 2011
Page 6
remedies afforded by the Loan Documents inadequate for the practical realization of the
benefits purported to be provided thereby.
P. This opinion does not cover any matter of title or priority of liens. Our opinion
regarding the perfection of the Agents security interest under Article 9 of the UCC as adopted in
Delaware, Pennsylvania, Colorado, Michigan and Texas is given (a) based on the assumption that each
of the Loan Agreement and the Intellectual Property Security Agreements are enforceable under the
laws of the States of Delaware, Colorado, Michigan and Texas and the Commonwealth of Pennsylvania
and (b) based solely upon on our review of unofficial compilations of Sections 9-102, 9-108, 9-109,
9-203, 9-301, 9-307, 9-308, 9-310, 9-501, 9-502(a), 9-504, 9-509 and 9-521 of Article 9 of the UCC
as adopted in Delaware, Pennsylvania, Colorado, Michigan and Texas, as such UCC Sections were
reported by the on-line LexisNexis® reporting service as of March 28, 2011, and we have not
reviewed or considered any other Delaware, Pennsylvania, Colorado, Michigan or Texas statutes,
rules or regulations or any judicial or administrative decisions interpreting Delaware,
Pennsylvania, Colorado, Michigan or Texas law in giving such opinion. With respect to the
collateral described in the Financing Statements, the Loan Agreement and the Intellectual Property
Security Agreements, we express no opinion and make no representations as to whether or not the
Loan Parties own (and, therefore, whether Agent has a security interest in) any particular personal
property described therein. We do not express any opinion as to any portion of the collateral that
constitutes commercial tort claims or electronic chattel paper. Additionally, we call your
attention to the following: (i) we express no opinion as to whether the description of the
collateral in the Loan Agreement and the Intellectual Property Security Agreements reasonably
identifies the collateral as required under the UCC as adopted in the States (see § 9-108 of the
UCC as adopted in the States); (ii) language, if any, purporting to create a security interest in
all of the Borrowers assets or personal property would not reasonably identify the collateral
as required under the UCC as adopted in the States (see Section 9-108(c) of the UCC as adopted in
the States) and, therefore, no security interest in such collateral may actually be created or
perfected by such language; (iii) our opinions may be limited by the future application of Sections
9-335 and 336 of the UCC as adopted in the States; and (iv) we express no opinion as to any
provisions in the Loan Documents that purport to waive the requirement under Section 9-610 of the
UCC as adopted in the States that every aspect of a sale of collateral must be commercially
reasonable or to define what is commercially reasonable. We disclaim any responsibility for
undertaking to file additional financing statements or continuation statements or to notify you of
the necessity of the same.
***
This opinion letter is delivered solely for the benefit of the Lender Parties in connection
with the execution and delivery of the Loan Documents and the transactions contemplated thereby;
provided, however, that at your request, we hereby consent to reliance hereon by
any future assignee of such parties interests in the loans under the Loan Agreement pursuant to an
assignment that is made and consented to in accordance with the express provisions of Section 14.3
of the Loan Agreement (each, a Future Assignee), on the condition and understanding that
(i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to
Bank of America, N.A., as Agent
March 31, 2011
Page 7
update this letter, to consider its applicability or correctness to any person other than its
original addressees, or to take into account changes in law, facts or any other developments of
which we may later become aware, and (iii) any such reliance by a Future Assignee must be actual
and reasonable under the circumstances existing at the time of assignment, including any changes in
law, facts or any other developments known to or reasonably knowable by the assignee at such time.
Copies of this opinion letter may not be furnished to any other person without the prior written
consent of this firm, except that each Lender Party and each permitted assignee may furnish copies
hereof (i) to its independent auditors and attorneys, (ii) in connection with a review of the Loan
Documents and transactions related thereto by a regulatory agency having supervisory authority over
it for the purpose of confirming the existence of this opinion, (iii) in response to a court order
or other appropriate legal process, and (iv) to any Future Assignee, subject to the conditions set
forth above. Our opinions expressed herein are as of the date hereof, and we undertake no
obligation to advise you of any changes of applicable law or any other matters that may come to our
attention after the date hereof that may affect our opinions expressed herein.
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Sincerely,
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ROBINSON BRADSHAW & HINSON, P.A. |
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Schedule A
Financing Statements and Filing Offices
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Loan Party |
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Filing Office |
Coltec Industries Inc
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Pennsylvania Department of State |
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Coltec Industrial Products LLC
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Delaware Secretary of State |
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GGB LLC
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Delaware Secretary of State |
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Corrosion Control Corporation
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Colorado Secretary of State |
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Stemco LP
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Texas Secretary of State |
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STEMCO Kaiser Incorporated
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Michigan Secretary of State |
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EnPro Industries, Inc.
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North Carolina Secretary of State |
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Coltec International Services Co
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Delaware Secretary of State |
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GGB, Inc.
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Delaware Secretary of State |
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Stemco Holdings, Inc.
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Delaware Secretary of State |
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Compressor Products Holdings, Inc.
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Delaware Secretary of State |
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Compressor Services Holdings, Inc.
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Delaware Secretary of State |
Exhibit A
Form of Financing Statements
(attached)
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of ______, 20__
Reference is made to the Second Amended and Restated Loan and Security Agreement dated March
__, 2011 (as at any time amended, modified, restated or supplemented, the Loan
Agreement), among Coltec Industries Inc and certain of its Affiliates, as borrowers, EnPro
Industries, Inc. and certain of its Affiliates, as guarantors, Bank of America, N.A., a national
banking association, in its capacity as collateral and administrative agent (Agent) for
the financial institutions from time to time party to the Loan Agreement (Lenders), and
such Lenders. Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Loan Agreement.
____________________________ (the Assignor) and ____________________________ (the
Assignee) agree as follows:
1. Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes from Assignor
(i) a principal amount of $________ of the outstanding Revolver Loans held by Assignor and
$___________ of participations of Assignor in LC Obligations (which amounts, according to the
records of Agent, represents _______% of the total principal amount of outstanding Revolver Loans
and LC Obligations) and (ii) a principal amount of $__________ of Assignors Revolver Commitment
(which amount includes Assignors outstanding Revolver Loans being assigned to Assignee pursuant to
clause (i) above and which, according to the records of Agent, represents (____%) of the total
Revolver Commitments of Lenders under the Loan Agreement) (the Assigned Interest),
together with an interest in the Loan Documents corresponding to the Assigned Interest. This
Agreement shall be effective from the date (the Assignment Effective Date) on which
Assignor receives both (x) the principal amount of the Assigned Interest in the Loans on the
Assignment Effective Date, if any, and (y) a copy of this Agreement duly executed by Assignee.
From and after the Assignment Effective Date, Assignee hereby expressly assumes, and undertakes to
perform, all of Assignors obligations in respect of Assignors Commitments to the extent, and only
to the extent, of Assignees Assigned Interest, and all principal, interest, fees and other amounts
which would otherwise be payable to or for Assignors account in respect of the Assigned Interest
shall be payable to or for Assignees account, to the extent such amounts have accrued subsequent
to the Assignment Effective Date.
2. Assignor (i) represents that as of the date hereof, the aggregate of its Commitments under
the Loan Agreement (without giving effect to assignments thereof, which have not yet become
effective) is $__________, and the outstanding balance of its Loans and participations in LC
Obligations (unreduced by any assignments thereof, which have not yet become effective) is
$__________; (ii) makes no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the Loan Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Agreement or any other instrument or document furnished pursuant thereto, other than that Assignor
is the legal and beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Borrowers, the performance or
observance by Borrowers of any of their obligations under the Loan Agreement or any of the Loan
Documents.
3. Assignee (i) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (ii) confirms that it has received a copy of the Loan Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 10.1.3
thereof, and copies of such other Loan Documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Acceptance; (iii)
agrees that it shall, independently and without reliance upon the Assignor and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Agreement; (iv) confirms that it is
eligible to become an Assignee; (v) appoints and authorizes Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Agreement as are delegated to Agent by the
terms thereof, together with such powers as are incidental thereto; (vi) agrees that it will
strictly observe and perform all the obligations that are required to be performed by it as a
Lender under the terms of the Loan Agreement and the other Loan Documents; (vii) agrees that it
will keep confidential all information with respect to Obligors furnished to it by Obligors or the
Assignor to the extent provided in the Loan Agreement; and (vii) represents and warrants that the
assignment evidenced hereby will not result in a non-exempt prohibited transaction under Section
406 of ERISA.
4. Assignee acknowledges and agrees that it will not sell or otherwise dispose of the Assigned
Interest or any portion thereof, or grant any participation therein, in a manner which, or take any
action in connection therewith which, would violate the terms of any of the Loan Documents.
5. This Agreement and all rights and obligations shall be interpreted in accordance with and
governed by the laws of the State of North Carolina. If any provision hereof would be invalid
under Applicable Law, then such provision shall be deemed to be modified to the extent necessary to
render it valid while most nearly preserving its original intent; no provision hereof shall be
affected by another provisions being held invalid.
6. Each notice or other communication hereunder shall be in writing, shall be sent by
messenger, by telecopy or facsimile transmission or by first-class mail, shall be deemed given when
sent and shall be sent as follows:
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(a) |
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If to Assignee, to the following address (or to such other
address as Assignee may designate from time to time): |
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__________________________ |
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__________________________ |
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__________________________ |
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(b) |
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If to Assignor, to the following address (or to such other
address as Assignor may designate from time to time): |
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__________________________ |
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__________________________ |
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__________________________ |
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__________________________ |
Payments hereunder shall be made by wire transfer of immediately available Dollars as follows:
If to Assignee, to the following account (or to such other account as Assignee may designate
from time to time):
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ABA No. |
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Account No. |
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Reference: |
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If to Assignor, to the following account (or to such other account as Assignor may designate
from time to time):
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ABA No. |
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Account No. |
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Reference: |
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed and delivered by their respective duly authorized officers, as of the date first above
written.
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(Assignor)
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By: |
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Name: |
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Title: |
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(Assignee)
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By: |
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Name: |
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Title: |
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EXHIBIT D
FORM OF NOTICE
Reference is made to (i) the Second Amended and Restated Loan and Security Agreement dated
March __, 2011 (as at any time amended, modified, restated or supplemented, the Loan
Agreement), among Coltec Industries Inc and certain of its Affiliates, as borrowers, EnPro
Industries, Inc. and certain of its Affiliates, as guarantors, Bank of America, N.A., a national
banking association, in its capacity as collateral and administrative agent (Agent) for
the financial institutions from time to time party to the Loan Agreement (Lenders), and
such Lenders, and (ii) the Assignment and Acceptance dated as of ____________, 20__ (the
Assignment Agreement) between __________________ (the Assignor) and
____________________ (the Assignee). Except as otherwise defined herein, capitalized
terms used herein which are defined in the Loan Agreement are used herein with the respective
meanings specified therein.
The Assignor hereby notifies Borrowers and Agent of Assignors intent to assign to Assignee
pursuant to the Assignment Agreement a principal amount of (i) $________ of the outstanding
Revolver Loans and participations in LC Obligations held by Assignor, (ii) $___________ of
Assignors Revolver Commitment (which amount includes the Assignors outstanding Revolver Loans
being assigned to Assignee pursuant to clause (i) above), together with an interest in the Loan
Documents corresponding to the interest in the Loans and Commitments so assigned. Pursuant to the
Assignment Agreement, Assignee has expressly assumed all of Assignors obligations under the Loan
Agreement to the extent of the Assigned Interest (as defined in the Assignment Agreement).
For purposes of the Loan Agreement, Agent shall deem Assignors share of the Revolver
Commitment to be reduced by $_________ and Assignees share of the Revolver Commitment to be
increased by $________.
The address of the Assignee to which notices, information and payments are to be sent under
the terms of the Loan Agreement is:
________________________
________________________
________________________
________________________
Assignees LIBOR Lending Office address is as follows:
________________________
________________________
________________________
________________________
This Notice is being delivered to Borrowers and Agent pursuant to Section 14.3 of the Loan
Agreement. Please acknowledge your receipt of this Notice by executing and returning to Assignee
and Assignor a copy of this Notice.
IN WITNESS WHEREOF, the undersigned have caused the execution of this Notice, as of
_________________, 20_.
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(Assignor)
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By: |
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Name: |
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Title: |
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(Assignee)
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By: |
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Name: |
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Title: |
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ACKNOWLEDGED AND AGREED TO AS OF THE DATE SET FORTH ABOVE:
BORROWERS:*
COLTEC INDUSTRIES INC, as Borrower Representative
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By: |
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Name: |
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Title: |
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BANK OF AMERICA, N.A., as Agent
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By: |
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Name: |
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Title: |
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* |
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No signature required by any Borrower when an Event of
Default exists. |
Schedule 2.3.5
Existing Letters of Credit
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1.
|
|
Beneficiary:
|
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Liberty Mutual
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Amount:
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US $4,112,000.00
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Expiry Date:
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11/12/2011 |
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Issuing Bank:
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Bank of America, N.A.
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L/C Number:
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68031644 |
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Issue Date:
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11/12/2008 |
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Schedule 8.1.1
Business Locations
Chief Executive Offices:
|
|
|
Obligor |
|
Chief Executive Office |
EnPro Industries, Inc. |
|
5605 Carnegie Blvd., Suite 500 |
Coltec Industries Inc |
|
Charlotte, NC 28209 |
Coltec International Services Co. |
|
|
Compressor Services Holdings, Inc. |
|
|
Compressor Products Holdings, Inc. |
|
|
Stemco Holdings, Inc. |
|
|
Coltec Industrial Products LLC |
|
4410 Greenbriar |
|
|
Stafford, TX 77477 |
Corrosion Control Corporation (d/b/a Pikotek) |
|
4990 Iris St. |
|
|
Wheat Ridge, CO 80033 |
GGB, Inc. |
|
700 Mid Atlantic Parkway |
GGB LLC |
|
Thorofare, NJ 08086-0189 |
Stemco LP |
|
300 Industrial Blvd. |
|
|
Longview, TX 75602-4720 |
STEMCO Kaiser Incorporated |
|
4641 Industrial Drive |
|
|
Millington, MI 48746 |
Inventory locations owned or leased by Obligors:
|
|
|
|
|
|
|
Obligor |
|
Division |
|
Address |
|
Owned/Leased |
Coltec Industrial
Products LLC
|
|
CC Technology
|
|
Curtis & Nancy Roys
3201 West Wall St
Midland, TX 79701
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Principal Life Insurance
4410 Greenbriar Dr
Stafford, TX 77477
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Interra Properties
11133 I-45 S, Bldg H
Conroe, TX 77302
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Ralston Business Center, LLC
5405 W 56th Ave, Unit E
Arvada, CO 80002
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Dee Cee Jay Corp
105 William Leigh Dr
Tully Town, PA 19007
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Third Generation, LLC
11540 Sun Belt Ct
Baton Rouge, LA 70809
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Guthrie Rancho Way LLC
19520 Rancho Way, #206
Rancho Dominguez, CA 90220
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
U&J Land, Inc.
11113 Norton Coeburn
Coeburn, VA 24230
|
|
leased |
Schedule 8.1.1
Business Locations
|
|
|
|
|
|
|
Obligor |
|
Division |
|
Address |
|
Owned/Leased |
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Normad Properties
1236 Turnbull Bay Rd
New Smyrna Beach, FL 32168
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Lallo Investments
1600 South 1625 East
Vernal, UT 84078
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
John R. Michaelis
695B Buckhorn Dr
Rifle, CO 81650
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
S&P Properties
1117 Energy St
Gillette, WY 82716
|
|
leased |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
Dotter
1753 East 1500 South
Vernal, UT 84078
|
|
leased |
|
|
|
|
|
|
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Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
AJ Industries, Inc.
4180 West Interstate 20
Weatherford, TX 76088
|
|
leased |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine
|
|
Fairbanks Morse Engine
701 White Avenue Beloit
Beloit, WI 53511
|
|
owned |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine
|
|
The Runnymede Corporation
630 Tidewater Drive
Norfolk, VA 23504
|
|
leased |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine
|
|
The Texas Development
Company
12253 FM 529
Houston, TX 77041
|
|
leased |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine
|
|
LIT Industrial Limited
Partnership
18926 S 13th Place
Seattle, WA 98148
|
|
leased |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine
|
|
Tidelands Partners, LLC
1545 Tidelands Avenue,
Suites H, I, J, K, & L
National City, CA 91950
|
|
leased |
|
|
|
|
|
|
|
GGB LLC
|
|
GGB
|
|
GGB LLC
700 Mid Atlantic Parkway
Thorofare, NJ 08086
|
|
owned |
|
|
|
|
|
|
|
GGB LLC
|
|
GGB
|
|
M-C Metropolitan Realty LLC
1451 Metropolitan Ave.
Thorofare, NJ 08086
|
|
leased |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Garlock Rubber
Technologies
|
|
Garlock Rubber Technologies
201 Dana Drive
Paragould, AR 72450
|
|
owned |
Schedule 8.1.1
Business Locations
|
|
|
|
|
|
|
Obligor |
|
Division |
|
Address |
|
Owned/Leased |
Coltec Industries Inc |
|
Helicoflex |
|
Helicoflex |
|
owned |
|
|
|
|
2791 The Boulevard |
|
|
|
|
|
|
Columbia, SC 29209 |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc |
|
Helicoflex |
|
Grubb & Ellis/Wilson Kibler |
|
leased |
|
|
|
|
2770 The Boulevard |
|
|
|
|
|
|
Columbia, SC 29209 |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc |
|
Hydrodyne |
|
Hydrodyne |
|
owned |
|
|
|
|
3125 Damon Way |
|
|
|
|
|
|
Burbank, CA 91505 |
|
|
|
|
|
|
|
|
|
Corrosion Control |
|
Pikotek |
|
Pikotek |
|
owned |
Corporation |
|
|
|
4990 Iris St. |
|
|
|
|
|
|
Wheat Ridge, CO 80033 |
|
|
|
|
|
|
|
|
|
Corrosion Control |
|
PSI |
|
PSI |
|
owned |
Corporation |
|
|
|
6525 Goforth St |
|
|
|
|
|
|
Houston, TX 77021 |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc |
|
Plastomer Technologies |
|
Dct Bondesen-Beltway |
|
leased |
|
|
|
|
8-Rittiman Gp LLC |
|
|
|
|
|
|
10633 W. Little York Rd |
|
|
|
|
|
|
Houston, TX 77041 |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc |
|
Plastomer Technologies |
|
ProLogis |
|
leased |
|
|
|
|
6455 Clara Road |
|
|
|
|
|
|
Houston, TX 77041 |
|
|
|
|
|
|
|
|
|
Coltec Industrial |
|
Premier |
|
Richard & Mary Ann Carson |
|
leased |
Products LLC |
|
|
|
14105 Packard St. |
|
|
|
|
|
|
Houston, TX 77040 |
|
|
|
|
|
|
|
|
|
Coltec Industrial |
|
Progressive |
|
Richard & Mary Ann Carson |
|
leased |
Products LLC |
|
|
|
14028 Aston Ave. |
|
|
|
|
|
|
Houston, TX 77040 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser Incorporated |
|
Rome Tool & Die |
|
Rome Tool & Die |
|
owned |
|
|
|
|
113 Hemlock Street |
|
|
|
|
|
|
Rome, GA 30161 |
|
|
|
|
|
|
|
|
|
Stemco LP |
|
STEMCO |
|
STEMCO LP |
|
owned |
|
|
|
|
300 Industrial Blvd. |
|
|
|
|
|
|
Longview, TX 75602 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser Incorporated |
|
STEMCO Kaiser |
|
Kaiser Holding Company |
|
leased |
|
|
|
|
4599 Industrial Drive |
|
|
|
|
|
|
Millington, MI 48746 |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc |
|
Technetics |
|
Technetics |
|
owned |
|
|
|
|
1700 E. International |
|
|
|
|
|
|
Speedway Blvd. |
|
|
|
|
|
|
DeLand, FL 32724 |
|
|
Schedule 8.1.1
Business Locations
Inventory located with bailees, warehouseman and consignees:
|
|
|
|
|
|
|
Obligor |
|
Division |
|
Address |
|
Nature of Relationship |
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
UStx Contract Services, Inc.
14141 US Hwy 290 West, Ste
100
Austin, TX 78737
|
|
third-party warehouse
arrangement |
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Compressor Products
International
|
|
GYBCO
18450 County Road 12
Foley, AL 36535
|
|
third-party warehouse
arrangement |
|
|
|
|
|
|
|
GGB LLC
|
|
GGB
|
|
A.Duie Pyle
650 Westtown Rd
West Chester, PA 19381-0564
|
|
third-party warehouse
arrangement |
|
|
|
|
|
|
|
Corrosion Control
Corporation
|
|
Pikoek
|
|
Midcontinent
Gapton Hall Road
Great Yarmouth, Norfolk,
England NR31 OHX
|
|
consignment |
|
|
|
|
|
|
|
Corrosion Control
Corporation
|
|
Pikotek
|
|
Altona
17 Kallang Way 5
Singapore 349035
|
|
consignment |
|
|
|
|
|
|
|
Corrosion Control
Corporation
|
|
Pikotek
|
|
Pipetech Corporation Ltd.
3311 114 Avenue SE
Calgary, Alberta, Canada
T2Z 3X2
|
|
consignment |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Plastomer
Technologies
|
|
DB Schenker
17 Changi South Street 2
Singapore 486129
|
|
third-party warehouse
arrangement |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Plastomer
Technologies
|
|
Carlisle Interconnect
Technologies
100 tensolite Drive
St. Augustine, FL 32092
|
|
consignment |
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Plastomer
Technologies
|
|
Applied Materials
Bldg. 4, 2230 Outer Loop
Dock, #409
Louisville, KY 40219
|
|
consignment |
|
|
|
|
|
|
|
STEMCO Kaiser
Incorporated
|
|
Rome Tool & Die
|
|
Arvin Meritor
7975 Dixie Hwy
Florence, KY 41042
|
|
consignment |
|
|
|
|
|
|
|
STEMCO Kaiser
Incorporated
|
|
Rome Tool & Die
|
|
Arvin Meritor
849 Whitaker Road
Plainfield, IN 46168
|
|
consignment |
|
|
|
|
|
|
|
STEMCO Kaiser
Incorporated
|
|
Rome Tool & Die
|
|
Federal Mogul
c/o Goggin Warehousing LLC
316 Babb Drive
Lebanon, TN 37087
|
|
consignment |
|
|
|
|
|
|
|
Stemco LP
|
|
STEMCO
|
|
Sam Dunn Enterprises
1320 E. Harrison Rd.
Longview, TX 75604
|
|
third-party warehouse
arrangement |
Schedule 8.1.1
Business Locations
|
|
|
|
|
|
|
Obligor |
|
Division |
|
Address |
|
Nature of Relationship |
Stemco LP |
|
STEMCO |
|
Western States Friction Group
|
|
Consignment |
|
|
|
|
1153 S 3600 W #B
|
|
|
|
|
|
|
Salt Lake City, UT 84104 |
|
|
|
|
|
|
|
|
|
Stemco LP |
|
STEMCO |
|
Uni-bond Brake, LLC
|
|
consignment |
|
|
|
|
1350 Jarvis St.
|
|
|
|
|
|
|
Ferndale, MI 48220 |
|
|
|
|
|
|
|
|
|
Stemco LP |
|
STEMCO |
|
Syncro Corporation
|
|
third-party warehouse |
|
|
|
|
1030 Sundown Dr. NW
|
|
arrangement |
|
|
|
|
Arab, AL 35016 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Enders & Associates Warehouse
|
|
third-party warehouse |
Incorporated |
|
|
|
2535 N. Hayden Island Dr.,Bldg
|
|
arrangement |
|
|
|
|
C
|
|
|
|
|
|
|
Portland, OR 97217 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Mystec Warehouse
|
|
third-party warehouse |
Incorporated |
|
|
|
5110 H Fulton Industrial Blvd.
|
|
arrangement |
|
|
|
|
Atlanta, GA 30336 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Warehouse Services
|
|
third-party warehouse |
Incorporated |
|
|
|
500 A South Good Latimer
|
|
arrangement |
|
|
|
|
Dallas, TX 75226 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Enders & Associates Warehouse
|
|
third-party warehouse |
Incorporated |
|
|
|
20488 84th Ave. So.
|
|
arrangement |
|
|
|
|
Kent, WA 98032 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Crown Packaging Products
|
|
third-party warehouse |
Incorporated |
|
|
|
11901 Burke Street
|
|
arrangement |
|
|
|
|
Santa Fe Springs, CA 90670 |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser |
|
STEMCO Kaiser |
|
Adams Distribution Center
|
|
third-party warehouse |
Incorporated |
|
|
|
295 McCarty Ave.
|
|
arrangement |
|
|
|
|
Houston, TX 77029 |
|
|
Schedule 8.1.2
Obligors Insurance
Aircraft Products Liability Insurance
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: Chartis
LIMITS: US$100,000,000
PRINCIPAL COVERAGES:
|
|
Will pay on behalf of the insured sums the insured is legally obligated to pay as damages
because of personal injury sustained by any person and because of injury to or destruction
of property, including the loss of use thereof caused by an accident arising out of an
aircraft product or service. |
|
|
|
Will pay on behalf of the insured sums the insured is legally obligated to pay as damages
because of the loss of use of completed aircraft occurring after delivery to and acceptance
by a purchaser or operator of such aircraft for flight operations, and caused by a Grounding
following an accident arising out of an aircraft product. |
|
|
|
Insurance altering provisions contained in customer contracts are covered subject to
notification to Underwriters within 90 days of contract execution. |
PRINCIPAL EXCLUSIONS:
|
1) |
|
Liability from products before their release to third parties. |
|
|
2) |
|
Destruction of owned, rented and leased property (covered under
property/general liability). |
|
|
3) |
|
The policy does not cover warranty claims or product recall. |
DEDUCTIBLES: Nil
Primary Automobile Liability Insurance (U.S. and Canada Only)
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: Liberty Mutual Insurance Company
LIMITS: US$3,000,000
PROGRAM STRUCTURE:
|
1) |
|
This policy provides coverage for operations within the United States and Canada. |
|
|
2) |
|
For international operations, locally purchased policies are purchased as
required in order to comply with individual country regulations. Discuss local
requirements with your local Marsh representative (see Foreign Broker Contact List). |
|
|
3) |
|
Excess coverage over locally purchased policies is provided under EnPros
master excess liability policy. |
PRINCIPAL COVERAGES:
|
1) |
|
Provides coverage for losses due to bodily injury and property damage caused by
an accident resulting from the ownership, maintenance or use of a covered auto. |
|
|
2) |
|
Covers company owned or leased vehicles used in the course of business. |
PRINCIPAL EXCLUSIONS:
|
1) |
|
Liability assumed under contract or agreement. |
|
|
2) |
|
Fellow employee losses. |
|
|
3) |
|
Property damage to property in the insureds care, custody or control. |
|
|
4) |
|
Bodily injury or property damages due to gradual discharge or escape of irritants, pollutants or contaminants. |
DEDUCTIBLE: $250,000
Schedule 8.1.2
Obligors Insurance
Worldwide Ocean Cargo Insurance
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: FM Global
LIMIT: US$2,500,000
PRINCIPAL COVERAGES:
1) |
|
Covers goods or merchandise, prepaid freight/ advanced freight/ freight payable in
which the insured may have an interest or be required to insure or choose to insure
without instruction from the owner. |
|
2) |
|
Coverage applies to shipments involving trans-oceanic transit only (purely inland shipments covered by the global Property insurance program). |
|
3) |
|
Includes manufactured products, raw material, automobiles, machinery and spare parts and personal effects for employees traveling outside the U.S. |
|
4) |
|
Warehouse to warehouse coverage. |
PRINCIPAL EXCLUSIONS:
1) |
|
Loss from capture, seizure, arrest. |
|
2) |
|
Delay or loss of market (e.g. business interruption). |
|
3) |
|
Absence of fuel or power. |
DEDUCTIBLE: $2,500, except $10,000 on shipments of diesel engines
Primary General Liability Insurance (U.S./Canada Operations Only)
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: Liberty Mutual Insurance Company
LIMIT: US$2,000,000 per occurrence, US$2,500,000 aggregate
PROGRAM STRUCTURE:
|
|
The EnPro Primary General Liability Policy provides insurance to US and Canadian operations
for general and products liability. Coverage is provided for occurrences taking place during the
policy period only. Program limits of $2,000,000 are provided in excess of the self-insured
retention of $1,000,000, with the Global Excess Liability Program providing additional excess
catastrophic cover. |
PRINCIPAL COVERAGES:
|
1) |
|
Covers losses which EnPro is obligated to pay by reason of liability imposed by
law or assumed under insured contract or agreement which arise out of personal injury
or property damage. |
|
|
2) |
|
Defense costs covered within the policy limits, but do not erode retentions. |
|
1) |
|
Aircraft products liability (covered under separate policy). |
|
|
2) |
|
Costs of product recall |
|
|
3) |
|
Discrimination |
|
|
4) |
|
Property damage to real or personal property owned, leased or used by EnPro or
within EnPros care, custody or control (covered under separate policy). |
|
|
5) |
|
Total Pollution (including Asbestos) |
DEDUCTIBLE: $1,000,000 (SIR)
Schedule 8.1.2
Obligors Insurance
Global Excess Liability Insurance
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: Lexington (AIG), XL London, Catlin, Scor, Aspen
LIMIT: US$200,000,000
PROGRAM STRUCTURE:
|
1) |
|
The EnPro master policy, procured in the United States, provides coverage for
operations worldwide. |
|
|
2) |
|
The policy shall be excess over the primary gl and auto liability programs in
the US/Canada |
|
|
3) |
|
For non-United States operations, this master policy shall be excess over any
locally purchased policies. |
PRINCIPAL COVERAGES:
|
1) |
|
Covers losses which EnPro is obligated to pay by reason of liability imposed by
law or assumed under insured contract or agreement which arise out of personal injury,
property damage or advertising liability. |
|
|
2) |
|
Defense costs covered within the policy limits. |
|
|
3) |
|
With certain limitations, pollution coverage provided in the event that any
discharge, dispersal, release or escape results from: |
|
a) |
|
Violent breaking open or explosion of any plant, equipment or building for which EnPro has legal
responsibility, either as owner or operator. |
|
|
b) |
|
Fire, lightning or windstorm damage to any plant, equipment or
building for which EnPro has legal responsibility, either as owner or operator. |
|
|
c) |
|
Collision, overturning or upset of any automobile or railcar |
|
|
d) |
|
Any product liability claim resulting from atmospheric exposure. |
PRINCIPAL EXCLUSIONS:
|
1) |
|
Aircraft products liability (covered under separate policy). |
|
|
2) |
|
Costs of product recall (covered by excess XL policies only) |
|
|
3) |
|
Discrimination |
|
|
4) |
|
Property damage to real or personal property owned, leased or used by EnPro or within
EnPros care, custody or control (covered under separate policy). |
DEDUCTIBLE: United States:
|
|
|
$3,000,000 Per occurrence (and in the aggregate for non-products/ completed
operations losses) for personal injuries, property damage and advertising
liability each loss except;
$10,000,000 Integrated Occurrence
$7,000,000 Aggregate for product liability/completed operations |
|
|
|
|
Non-United States:
$3,000,000 Per occurrence for products/completed operation liability.
$2,000,000 Per occurrence and in the aggregate for public liability for all
personal injuries, property damage and advertising liability each loss. |
EXECUTIVE RISK
Directors & Officers Liability and Company Reimbursement Liability
Crime, Fiduciary Liability, Employment Practices Liability,
Schedule 8.1.2
Obligors Insurance
Employed Lawyers Professional Liability
Description
Directors & Officers Liability:
Covers payments made by directors and officers for losses from claims against them, which are not
or cannot be indemnified by EnPro. As defined in this policy, Directors & Officers means any
director of EnPro, including officer positions held by those individuals and any duly elected,
appointed or staff officer positions, including foreign equivalent positions, in EnPro, or its
subsidiaries. Coverage extends to directors and officers of EnPro serving on outside,
not-for-profit boards subject to policy terms and conditions.
Company Reimbursement Liability:
Reimburses EnPro for the amounts the Company is required/permitted to pay individual directors and
officers to indemnify them for claims. Also reimburses EnPro for amounts incurred for losses
arising from Securities Claims.
Crime:
Reimburses EnPro for losses due to employee theft, robbery, burglary, destruction or computer theft
of money, securities or other property, and forgery or alteration of any check, draft, or
promissory note issued by EnPro. Coverage also includes computer theft legal liability including
losses of client money, securities or other property arising from actual or alleged theft by use of
EnPro electronic and data processing systems.
Fiduciary Liability:
Covers EnPro for employee benefit plans, and the trustees and fiduciaries of these plans for legal
liability arising from claims alleging mismanagement or misadministration of these plans based on
ERISA (Employee Retirement Income Security Act of 1974) or common law violations.
Employed Lawyers Professional Liability:
Covers Employed Lawyers for liability arising from claims alleging errors or omissions in the
performance of their professional duties for EnPro. Coverage also protects the Company for its
cost of defense and for any losses it pays to an employed lawyer.
Employment Practices Liability:
Covers EnPro for liability arising from claims for employment practices wrongful acts including
alleged discrimination, sexual harassment, wrongful termination, breach of implied employment
contract, failure to employ/promote, wrongful discipline, failure to grant tenure, negligent
evaluation, retaliation, damages arising out of defamation, humiliation, mental anguish, emotional
distress, libel/slander, invasion of privacy, civil rights violations, workplace harassment and
failure to provide/enforce corporate policy. Coverage provides judgments, back pay, forward pay,
appeals, bonds, multiple damages, punitive damages (where permitted), pre and post judgment
interest awards.
INSURER: Greenwich Insurance (XL Capital), Zurich, Arch, Beazley
LIMIT:
$60,000,000 Directors and Officers
$25,000,000 All other coverages
DEDUCTIBLES:
Directors & Officers: None
Corporate Reimbursement: $1,000,000 each claim, $3,000,000 in the policy period aggregate
Employment Practices Liability $3,000,000 each claim, $6,000,000 in the policy aggregate
Schedule 8.1.2
Obligors Insurance
Global Property Insurance
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
INSURER: FM Global
LIMIT: US$1,400,000,000
PROGRAM STRUCTURE:
|
1) |
|
The EnPro master policy, procured in the United States, provides coverage for
operations worldwide. |
|
|
2) |
|
The EnPro master policy is considered primary in the United States and certain
international locations. |
|
|
3) |
|
For operations in the EU, Australia, Mexico, China, Canada and Brazil, the
master policy shall be excess over locally issued policies required by local laws. |
PRINCIPAL COVERAGES:
|
1) |
|
Provides replacement cost cover for all risks of direct physical loss or damage
to all real and personal property of the insured, and resulting business interruption/
extra expense loss. Boiler and machinery cover is also provided at replacement cost. |
|
|
2) |
|
Covers property under construction, erection or installation |
|
|
3) |
|
Covers property of others in the insureds care, custody or control |
|
|
4) |
|
Covers personal property of employees at insured premises |
|
|
5) |
|
Coverage includes debris removal expense |
|
|
6) |
|
Coverage includes property in transit worldwide |
PRINCIPAL EXCLUSIONS:
|
1) |
|
War Risk |
|
|
2) |
|
Aircraft, Watercraft, Satellite, Spacecraft, Motor Vehicles, Land, Water, Animals, Trees |
|
|
3) |
|
Mold, Fungi Damage |
|
|
4) |
|
Ordinary wear, tear, settling, shrinking or expansion of foundations, walls,
floors, roofs or ceilings |
DEDUCTIBLES:
|
|
|
|
|
|
|
$250,000
|
|
Property/Business Interruption (BI subject to a 24 hour waiting period) all locations, except; |
|
|
|
|
|
|
|
Earthquake
|
|
$250,000 (for location in critical quake zones, greater of $250,000 or 5% of the
total insured values applied only at locations sustaining damage and for which a claim
is being made under this policy). |
|
|
|
|
|
|
|
Flood
|
|
$250,000 (for locations in critical flood zones, separate deductibles of
$500,000 will apply to buildings, $500,000 to contents and $250,000 to business
interruption). |
|
|
|
|
|
|
|
Wind
|
|
$250,000 (for Bay Minette, AL, greater of $250,000 or 3% of the total
insured values plus 3% of business interruption values). |
|
|
|
|
|
|
|
Transit
|
|
$25,000 |
Workers Compensation and Employers Liability (U.S. Only)
INSURED: EnPro and any owned, controlled, associated, affiliated or subsidiary companies.
Schedule 8.1.2
Obligors Insurance
INSURER: Liberty Mutual Insurance
LIMIT: Statutory Limits for WC, US$2,000,000 EL
PRINCIPAL COVERAGES:
|
1) |
|
STATUTORY: Covers employees for loss due to work related injuries for bodily
injury, death and occupational disease. |
|
|
2) |
|
EMPLOYERS LIABILITY: Covers employers liability resulting from injuries to
employees occurring in the course of their employment. |
PRINCIPAL EXCLUSIONS:
|
1) |
|
Operations covered by monopolistic workers compensation fund coverage. |
|
|
2) |
|
Contractual Liability |
DEDUCTIBLE: $750,000 per accident
Asbestos
Reference is made to the discussion of insurance coverage for asbestos claims in the Form 10-K
for the year ended December 31, 2010 filed by EnPro Industries, Inc., which discussion appears in
various sections including Part II, Item 7, Managements Discussion and Analysis of Financial
Condition and Results of Operations under the heading Contingencies and the subheading
Asbestos and in the notes to the Consolidated Financial Statements attached thereto (Note 19,
Commitments and Contingencies under the heading Asbestos).
Schedule 8.4
Deposit Accounts
EnPro Industries, Inc.
All U.S. Bank Accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Cash Concentration System |
Bank |
|
Account Number |
|
Lock Box |
|
Currency |
|
Account Type |
|
Company |
|
Division |
|
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Corrosion Control Corporation
|
|
Pikotek |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Plastomer Products |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Garlock Rubber Technologies |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Texolon |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Garlock Helicoflex |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
GGB LLC
|
|
GGB LLC |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industrial Products LLC
|
|
Compressor Products International |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Stemco LP
|
|
Stemco LP |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Coltec Industries Inc
|
|
Coltec Industries Inc |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Stemco Kaiser Incorporated
|
|
Stemco Kaiser |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Corrosion Control Corporation
|
|
PSI (Pipeline Seal and Insulator) |
Bank of America Georgia
|
|
|
|
|
|
USD
|
|
Controlled Disbursement
|
|
Stemco Kaiser Incorporated
|
|
Rome Tool & Die |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Concentration
|
|
Coltec Industries Inc
|
|
Coltec Industries Inc |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Funding
|
|
EnPro Industries, Inc.
|
|
EnPro Industries, Inc. |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Funding/Concentration
|
|
Coltec Industries Inc
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
Lock Box Depository |
|
|
|
|
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Coltec Industries Inc
|
|
Garlock Rubber Technologies |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Coltec Industrial Products LLC
|
|
Compressor Products International |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Account
|
|
Corrosion Control Corporation
|
|
Pikotek |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
DDA Lock Box Depository
|
|
GGB, Inc.
|
|
GGB, Inc. |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Account
|
|
Stemco Kaiser Incorporated
|
|
Stemco Kaiser |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
DDA
|
|
Corrosion Control Corporation
|
|
PSI (Pipeline Seal and Insulator) |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
DDA Lock Box Depository
|
|
Stemco Kaiser Incorporated
|
|
Rome Tool & Die |
Bank of America California
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Coltec Industries Inc
|
|
Plastomer Products |
Bank of America California
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine |
Schedule 8.4
Deposit Accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Cash Concentration System |
Bank |
|
Account Number |
|
Lock Box |
|
Currency |
|
Account Type |
|
Company |
|
Division |
|
Bank of America California
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
GGB LLC
|
|
GGB LLC |
Bank of America California
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Coltec Industries Inc
|
|
Garlock Helicoflex |
Bank of America California
|
|
|
|
|
|
USD
|
|
Account Lock Box Depository
|
|
Stemco LP
|
|
Stemco LP |
Bank of America California
|
|
|
|
|
|
USD
|
|
Account
|
|
Coltec Industries Inc
|
|
Texolon |
|
|
|
|
|
|
USD
|
|
|
|
Coltec Industries Inc
|
|
Texolon (for Amicon deposits) |
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Stand-alone Accounts |
Bank |
|
Account Number |
|
Lock Box |
|
Currency |
|
Account Type |
|
Company |
|
Division |
|
Bank of America
|
|
|
|
|
|
USD
|
|
Petty Cash
|
|
Coltec Industries Inc
|
|
FM Engine (Seattle, WA service
center) |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Petty Cash
|
|
Coltec Industries Inc
|
|
FM Engine (Houston, TX service
center) |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Petty Cash
|
|
Coltec Industries Inc
|
|
FM Engine (Norfolk, VA service
center) |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
PAC
|
|
EnPro Industries, Inc. PAC
|
|
EnPro Industries, Inc. PAC |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Checking Account
|
|
Coltec Industrial Products LLC
|
|
CC Technology |
Bank of America Texas
|
|
|
|
|
|
USD
|
|
Checking Account
|
|
Coltec Industries Inc
|
|
Hydrodyne |
Bank of America
|
|
|
|
|
|
USD
|
|
Checking Account
|
|
Coltec Industries Inc
|
|
Technetics |
|
|
|
|
|
|
|
|
|
|
|
|
|
Amegy Bank
|
|
|
|
|
|
USD
|
|
Commercial Checking
|
|
Coltec Industrial Products LLC
|
|
CPI Premier Lubrication Systems |
Sterling Bank
|
|
|
|
|
|
USD
|
|
Commercial Checking
|
|
Coltec Industrial Products LLC
|
|
CPI -Progressive Equipment |
Schedule 9.1.1
Qualifications
|
|
|
|
|
Name |
|
Incorporation |
|
Qualified |
COLTEC INDUSTRIES INC
|
|
Pennsylvania
|
|
Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut,
Delaware, District of Columbia, Florida,
Georgia, Hawaii, Idaho, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine,
Massachusetts, Michigan, Minnesota,
Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico,
New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon,
Rhode Island, South Carolina, South
Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia,
Wisconsin, Wyoming |
|
|
|
|
|
COLTEC INDUSTRIAL PRODUCTS LLC
|
|
Delaware
|
|
California, Colorado,
Georgia, Illinois,
Indiana, Louisiana,
New Jersey, Oklahoma,
Pennsylvania, Texas,
Utah, Washington |
|
|
|
|
|
GGB LLC
|
|
Delaware
|
|
New Jersey |
|
|
|
|
|
GGB, INC.
|
|
Delaware
|
|
Michigan |
|
|
|
|
|
COLTEC INTERNATIONAL SERVICES CO
|
|
Delaware |
|
|
|
|
|
|
|
CORROSION CONTROL CORPORATION
|
|
Colorado |
|
|
|
|
|
|
|
STEMCO LP
|
|
Texas
|
|
Arizona, Kentucky,
Nevada, North
Carolina |
|
|
|
|
|
STEMCO HOLDINGS, INC.
|
|
Delaware |
|
|
|
|
|
|
|
COMPRESSOR SERVICES HOLDINGS,
INC.
|
|
Delaware |
|
|
|
|
|
|
|
COMPRESSOR PRODUCTS HOLDINGS,
INC.
|
|
Delaware |
|
|
|
|
|
|
|
STEMCO KAISER INCORPORATED
|
|
Michigan |
|
|
|
|
|
|
|
ENPRO INDUSTRIES, INC.
|
|
North Carolina |
|
|
Schedule 9.1.4
Capital Structure
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
|
|
|
Name |
|
Incorporation |
|
Authorized |
|
Issued |
|
Issued To1 |
EnPro Industries, Inc.
|
|
North Carolina
|
|
100,000,000 Common
Shares;
50,000,000
Preferred Shares;
204,150 Series A
Junior
Participating
Preferred Shares
|
|
20,669,747 Common
Shares2;
0 Preferred Shares;
0 Series A Junior
Participating
Preferred Shares
|
|
Coltec Industries Inc
(235,167 Common
Shares)
Public (20,434,580
Common Shares) |
|
|
|
|
|
|
|
|
|
Allwest Compressor
Products ULC
|
|
Canada
|
|
1,000 shares
|
|
650 shares
|
|
Compressor Products
Holdings, Inc. |
|
|
|
|
|
|
|
|
|
Alpha Engineering SRL
|
|
Italy
|
|
|
|
12,688 EUR issued
equity interests
(of which EnPro
holds 2,288 EUR)
|
|
EnPro Luxembourg
Holding Company
S.a.r.l. (18.03%) |
|
|
|
|
|
|
|
|
|
The Anchor Packing
Company
|
|
North Carolina
|
|
3,750 shares
|
|
1,000 shares
|
|
Garrison Litigation
Management Group, Ltd. |
|
|
|
|
|
|
|
|
|
CAB Compressores
Industrie e Comercio
Ltda.
|
|
Brazil
|
|
774.00 quotas
|
|
774.00 quotas
|
|
Compressor Products
International Ltda. |
|
|
|
|
|
|
|
|
|
Coltec do Brasil
Produtos Industrias
Ltda.
|
|
Brazil
|
|
10,309 quotas
|
|
10,309 quotas
|
|
Coltec Industries Inc -
9,175 quotas (89%)
Coltec International
Services Co. 1,134
quotas (11%) |
|
|
|
|
|
|
|
|
|
Coltec Finance Company
Ltd.
|
|
U.K.
|
|
100 shares
|
|
100 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Coltec Industrial
Products LLC
|
|
Delaware
|
|
1,000 units
|
|
1,000 units
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Coltec Industries Inc
|
|
Pennsylvania
|
|
1,000 shares
|
|
1,000 shares
|
|
EnPro Industries, Inc. |
|
|
|
|
|
|
|
|
|
Coltec Industries
|
|
France
|
|
60.250.000 francs
|
|
60.250.000 francs
|
|
Garlock GmbH |
France SAS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Coltec Industries
|
|
Singapore
|
|
100,000$$
|
|
100$$
|
|
Coltec Industries Inc |
Pacific Pte. Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Coltec International
Services Co
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Compressor Products
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
Holdings, Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compressor Products
Holdings, Limited
|
|
United Kingdom
|
|
10,000 shares
|
|
10,000 shares
|
|
Coltec Industries Inc |
|
|
|
1 |
|
Unless otherwise noted , all Equity Interests are common or the equivalent and all ownership percentages are 100%. |
|
2 |
|
As of March 25, 2011. |
Schedule 9.1.4
Capital Structure
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
|
|
|
Name |
|
Incorporation |
|
Authorized |
|
Issued |
|
Issued To1 |
Compressor Products
International Canada,
Inc.
|
|
Canada
|
|
unlimited
|
|
11,000,001
|
|
EnPro Luxembourg
Holding Company
S.a.r.l. |
|
|
|
|
|
|
|
|
|
Compressor Products
International GMBH
|
|
Germany
|
|
25,000 shares
|
|
25,000 shares
|
|
Garlock GmbH |
|
|
|
|
|
|
|
|
|
Compressor Products
International, Limited
|
|
United Kingdom
|
|
10,000 Preferred
Ordinary 109,964
New Ordinary
|
|
10,000 Preferred
Ordinary
109,964 New Ordinary
|
|
Compressor Products
Holdings, Limited |
|
|
|
|
|
|
|
|
|
Compressor Products
International Ltda.
|
|
Brazil
|
|
5,000,000 reals
|
|
5,000,000 reals
|
|
Compressor Products
International, Limited
(99%)
CPI Investments
Limited (1%) |
|
|
|
|
|
|
|
|
|
Compressor Products
International
(Shanghai) Co., Ltd.
|
|
China
|
|
$1,400,000
|
|
$950,000
|
|
EnPro Hong Kong
Holdings Company
Limited |
|
|
|
|
|
|
|
|
|
Compressor Services
Holdings, Inc.
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Corrosion Control
Corporation
|
|
Colorado
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
CPI Investments Limited
|
|
United Kingdom
|
|
1,000 shares
|
|
1,000 shares
|
|
Compressor Products |
|
|
|
|
|
|
|
|
International, Limited |
|
|
|
|
|
|
|
|
|
CPI-Liard SAS
|
|
France
|
|
3,014,350
|
|
3,014,350
|
|
Compressor Products |
|
|
|
|
|
|
|
|
International Ltd. |
|
|
|
|
|
|
|
|
|
CPI Pacific Pty Limited
|
|
Australia
|
|
1,000 shares
|
|
1,000 shares
|
|
Compressor Products |
|
|
|
|
|
|
|
|
International, Limited |
|
|
|
|
|
|
|
|
|
EnPro Corporate
Management Consulting
(Shanghai) Co., Ltd.
|
|
China
|
|
$150,000
|
|
$70,000
|
|
EnPro Hong Kong
Holdings Company
Limited |
|
|
|
|
|
|
|
|
|
EnPro German Holding
GmbH
|
|
Germany
|
|
25,000 shares
|
|
25,000 shares
|
|
EnPro Luxembourg
Holding Company
S.a.r.l. |
|
|
|
|
|
|
|
|
|
EnPro Hong Kong
Holdings Company
Limited
|
|
China
|
|
HKD 10,000
|
|
HKD 10,000
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
EnPro India Private
Limited
|
|
India
|
|
10,000 shares
|
|
10,000 shares
|
|
Coltec Industries
Pacific Pte. Ltd. |
|
|
|
|
|
|
|
|
|
EnPro Industries
International Trading
(Shanghai) Co., Ltd.
|
|
China
|
|
$140,000 USD
|
|
$140,000 USD
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
EnPro Luxembourg
Holding Company
S.a.r.l.
|
|
Luxembourg
|
|
30,000 shares
|
|
30,000 shares
|
|
GGB, Inc. |
Schedule 9.1.4
Capital Structure
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
|
|
|
Name |
|
Incorporation |
|
Authorized |
|
Issued |
|
Issued To1 |
Franken Plastik GmbH
|
|
Germany
|
|
1 share, with a
nominal value of
DEM 2 million
|
|
1 share, with a
nominal value of
DEM 2 million
|
|
Garlock GmbH |
|
|
|
|
|
|
|
|
|
GGB, Inc.
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
GGB LLC
|
|
Delaware
|
|
1,000 units
|
|
1,000 units
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
GGB Austria GmbH
|
|
Austria
|
|
13.000.000 EUR
|
|
13.000.000 EUR
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB Bearing Technology
(Suzhou) Co., Ltd.
|
|
China
|
|
$6,400,000
|
|
$6,400,000
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB Brasil Industria de
Mancais e Componentes
Ltda.
|
|
Brasil
|
|
4,315,422 quotas
|
|
4,315,422 quotas
|
|
GGB, Inc. (4,315,421
quotas)
Coltec Industries Inc
(1 quota) |
|
|
|
|
|
|
|
|
|
GGB France E.U.R.L.
|
|
France
|
|
8,000 shares
|
|
8,000 shares
|
|
GGB Holdings E.U.R.L. |
|
|
|
|
|
|
|
|
|
GGB Heilbronn GmbH
|
|
Germany
|
|
25.000,00 EUR
|
|
25.000,00 Euro
|
|
EnPro German Holding
GmbH |
|
|
|
|
|
|
|
|
|
GGB Holdings E.U.R.L.
|
|
France
|
|
8.000 EUR
|
|
8.000 EUR
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB Italy s.r.l
|
|
Italy
|
|
10.000 EUR
|
|
10.000 EUR
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB
Kunststoff-Technologie
GmbH
|
|
Germany
|
|
35.000 EUR
|
|
35.000 EUR
|
|
GGB Heilbronn GmbH |
|
|
|
|
|
|
|
|
|
GGB Real Estate GmbH
|
|
Germany
|
|
25.000 EUR
|
|
25.000 EUR
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB Slovakia s.r.o
|
|
Slovakia
|
|
500,000 SKK
|
|
500,000 SKK
|
|
GGB, Inc. |
|
|
|
|
|
|
|
|
|
GGB Tristar Suisse S.A.
|
|
Switzerland
|
|
250 shares
|
|
250 shares
|
|
GGB, Inc. (246 shares)
Hans Hussy (1 share)
Horst Matzner (1 share)
Jean de Raemy (1 share)
Bernd Fischer (1 share)
|
|
|
|
|
|
|
|
|
|
Garlock de Mexico,
S.A. de C.V.
|
|
Mexico
|
|
156,000 (CF)
1,995,000 (CV)
2,151,000 (total
capital fijo and
variable)
|
|
156,000 (CF)
1,995,000 (CV)
2,151,000 (total
capital fijo and
variable)
|
|
Garlock Sealing
Technologies LLC
155,998 (CF);
1,995,000 (CV)
Garlock Overseas
Corporation 2 (CF) |
|
|
|
|
|
|
|
|
|
Garlock France SAS
|
|
France
|
|
302,500
|
|
302,500
|
|
Coltec Industries
France SAS |
|
|
|
|
|
|
|
|
|
Garlock GmbH
|
|
Germany
|
|
150,000 DM
|
|
150,000 DM
|
|
EnPro German Holding
GmbH |
|
|
|
|
|
|
|
|
|
Garlock (Great
Britain) Limited
|
|
United Kingdom
|
|
40,000 shares
|
|
15,000 shares
|
|
Coltec Industries Inc |
Schedule 9.1.4
Capital Structure
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
|
|
|
Name |
|
Incorporation |
|
Authorized |
|
Issued |
|
Issued To1 |
Garlock
International Inc
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Garlock Sealing
Technologies LLC |
|
|
|
|
|
|
|
|
|
Garlock of Canada Ltd.
|
|
Canada
|
|
100 shares
|
|
100 shares
|
|
Garlock
International Inc |
|
|
|
|
|
|
|
|
|
Garlock Overseas
Corporation
|
|
Delaware
|
|
500 Common Shares
500 Preferred Shares
|
|
1 Common Share
|
|
Garlock Sealing
Technologies LLC |
|
|
|
|
|
|
|
|
|
Garlock Pty Limited
|
|
Australia
|
|
500,000 shares
|
|
300,000 shares
|
|
Garlock Sealing
Technologies LLC |
|
|
|
|
|
|
|
|
|
Garlock Sealing
Technologies LLC
|
|
North Carolina
|
|
100 units
|
|
100 units
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Garlock Sealing
Technologies
(Shanghai) Co., Ltd.
|
|
China
|
|
1,700,000 shares
|
|
1,700,000 shares
|
|
EnPro Hong Kong
Holdings Company
Limited |
|
|
|
|
|
|
|
|
|
Garlock Valqua Japan,
Inc.
|
|
Japan
|
|
1,600 shares
|
|
1,600 shares
|
|
Garlock Sealing
Technologies LLC
(49%) |
|
|
|
|
|
|
|
|
|
Garrison Litigation
Management
Group, Ltd.
|
|
North Carolina
|
|
1,500,000 Common Shares
300,000 Preferred
Shares
|
|
1,300,000 Common Shares
250,000 Preferred
Shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
HTCI, Inc.
|
|
Michigan
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Link Seal Japan Ltd.
|
|
Japan
|
|
800 shares
|
|
200 shares
|
|
Coltec Industries
Pacific Pte. Ltd.
(50%) |
|
|
|
|
|
|
|
|
|
QFM Sales and
Services, Inc.
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
Pipeline Seal &
Insulator Co. Limited
|
|
United Kingdom
|
|
1,500,000 shares
|
|
1,500,000 shares
|
|
Garlock (Great
Britain) Limited |
|
|
|
|
|
|
|
|
|
PSI Products GmbH
|
|
Germany
|
|
100,000 DEM /1 share
with a nominal value
51,200 EUR
|
|
100,000 DEM /1 share
with a nominal value
51,200 EUR
|
|
Franken Plastik GmbH |
|
|
|
|
|
|
|
|
|
PSI (SEA) SDN BHD
|
|
Malaysia
|
|
1 million ordinary
shares
|
|
600,000 ordinary shares
|
|
Coltec Industries
Pacific Pte. Ltd.
(50%) |
|
|
|
|
|
|
|
|
|
Robix Limited
|
|
United Kingdom
|
|
100,000 shares
|
|
100,000 shares
|
|
Compressor Products
International,
Limited |
|
|
|
|
|
|
|
|
|
Stemco Crewson LLC
|
|
Texas
|
|
|
|
|
|
Stemco LP (20%) |
|
|
|
|
|
|
|
|
|
STEMCO Kaiser
Incorporated
|
|
Michigan
|
|
10,000 Preferred Shares
2,000 Common Shares
|
|
540 Common Shares
|
|
Coltec Industries Inc |
Schedule 9.1.4
Capital Structure
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
|
|
|
Name |
|
Incorporation |
|
Authorized |
|
Issued |
|
Issued To1 |
Stemco LP
|
|
Texas
|
|
Partnership Interest
|
|
Partnership Interest
|
|
Coltec Industries
Inc General
Partner (1%)
Stemco Holdings,
Inc. Limited
Partner (99%) |
|
|
|
|
|
|
|
|
|
Stemco Holdings, Inc.
|
|
Delaware
|
|
1,000 shares
|
|
1,000 shares
|
|
Coltec Industries Inc |
|
|
|
|
|
|
|
|
|
StemPro de Mexico,
S. de R.L.
De C.V.
|
|
Mexico
|
|
3,000 Pesos
|
|
3,000 Pesos
|
|
Coltec Industries
Inc (75%)
Coltec Internacional
Services Co. (25%) |
|
|
|
|
|
|
|
|
|
Texflo Compressor
Services ULC
|
|
Canada
|
|
14,000,000 shares
|
|
1,000 shares
|
|
Compressor Services
Holdings, Inc. |
Schedule 9.1.5
Corporate Names; Mergers/Consolidations/Acquisitions
Corporate Names
|
|
|
|
|
Previous Corporate Name, |
Legal Entity |
|
Fictitious Name or Tradename |
Coltec Industrial Products LLC
|
|
Coltec Industrial Products Inc |
|
|
Air Perfection |
|
|
CC Technology |
|
|
France Compressor Products |
|
|
FCP |
|
|
Plastomer Products |
|
|
Plastomer Technologies |
|
|
Porter Process |
|
|
Horizon Compressor Services |
|
|
Premier Lubrication |
|
|
Progressive Lubrication |
|
|
CPI RAM Air |
|
|
CPI HAR |
|
|
CPI Southwest Compressor Services |
|
|
USA Parts & Service |
|
|
Total & Superior Compression Service |
|
|
Valves & Industrial Plastics |
|
|
|
Coltec Industries Inc
|
|
Fairbanks Morse Engine |
|
|
FME |
|
|
Garlock Rubber Technologies |
|
|
Plastomer Products |
|
|
Plastomer Technologies |
|
|
Quincy Compressor/Ortman Fluid Power |
|
|
Quincy Compressor |
|
|
Quincy/Ortman |
|
|
Sterling Die |
|
|
Sterling Die Operations |
|
|
Garlock Helicoflex |
|
|
Coltec Specialty Products |
|
|
Specialty Products Tex-O-Lon |
|
|
Specialty Products Repro-Lon |
|
|
Tex-O-Lon |
|
|
Repro-Lon |
|
|
Air Science Engineering |
|
|
Coltec North Carolina Inc. |
|
|
Amicon Plastics |
|
|
Hydrodyne |
|
|
Technetics Corporation |
|
|
|
Corrosion Control Corporation
|
|
Pikotek |
|
|
PSI U.S. |
|
|
Texas Plasticote |
Schedule 9.1.5
Corporate Names; Mergers/Consolidations/Acquisitions
|
|
|
|
|
Previous Corporate Name, |
Legal Entity |
|
Fictitious Name or Tradename |
Stemco LP
|
|
Stemco Inc |
|
|
Stemco LLC |
|
|
Stemco |
|
|
Stemco Truck Products |
|
|
|
GGB LLC
|
|
Glacier Garlock Bearings North America |
|
|
Garlock Bearings, LLC |
|
|
Glacier Garlock Bearings, LLC |
|
|
GGB |
|
|
GGB North America LLC |
|
|
|
GGB Inc.
|
|
Glacier Garlock Bearings, Inc. |
|
|
|
STEMCO Kaiser Incorporated
|
|
V.W. Kaiser Engineering, Incorporated |
|
|
Rome Tool & Die |
|
|
Stemco Kaiser |
|
|
|
Compressor Products Holdings, Inc.
|
|
Allwest Compressor Products |
|
|
|
Compressor Services Holdings, Inc.
|
|
Texflo Compressor Services |
The corporate names of the other Obligors set forth on Schedule 9.1.1 are hereby incorporated
by reference.
Mergers/Consolidations/Acquisitions
|
|
|
May 31, 2006
|
|
Acquisition by Compressor Products Holdings, Inc. of all
of the issued and outstanding Equity Interests of
Allwest Compressor Products |
|
|
|
June 16, 2006
|
|
Acquisition by Coltec Industries Inc of substantially
all of the assets of Amicon Interests, LP |
|
|
|
August 9, 2006
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of Southwest Compressor
Services Ltd., LLP and HAR Compressor Products, LLC |
|
|
|
February 29, 2008
|
|
Acquisition by Coltec Industries Inc of all of the
issued and outstanding Equity Interests of STEMCO Kaiser
Incorporated (f/k/a V.W. Kaiser Engineering,
Incorporated) |
|
|
|
May 23, 2008
|
|
Acquisition by Coltec Industries Inc of substantially
all of the assets of Air Perfection, Inc. |
|
|
|
October 15, 2008
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of Horizon Compressor
Services, Inc. |
|
|
|
November 21, 2008
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of Reciprocating
Aircompressor Maintenance, Inc. (d/b/a RAM Air, Inc.) |
Schedule 9.1.5
Corporate Names; Mergers/Consolidations/Acquisitions
|
|
|
August 6, 2009
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of USA Parts & Service,
LLC |
|
|
|
December 31, 2009
|
|
Acquisition by Coltec Industries Inc of substantially
all of the assets of Technetics Corporation |
|
|
|
July 8, 2010
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of Total & Superior
Compression Service & Supply, Inc. |
|
|
|
July 30, 2010
|
|
Acquisition by Coltec Industrial Products LLC of all of
the issued and outstanding Equity Interests of Premier
Lubrication Systems, Inc. and Progressive Equipment,
Inc. |
|
|
|
July 30, 2010
|
|
Acquisition by Coltec Industrial Products LLC of
substantially all of the assets of CC Technology, Inc. |
|
|
|
September 20, 2010
|
|
Acquisition by Coltec Industries Inc of substantially
all of the assets of Hydrodyne (F.P.I., Inc.) |
|
|
|
September 23, 2010
|
|
Merger of Progressive Equipment, Inc. with and into
Coltec Industrial Products LLC |
|
|
|
January 6, 2011
|
|
Acquisition by STEMCO Kaiser Incorporated of
substantially all of the assets of Rome Tool & Die Co.,
Inc. |
|
|
|
February 14, 2011
|
|
Acquisition by Corrosion Control Corporation of
substantially all of the assets of Pipeline Seal and
Insulator, Inc. and Texas Plasticote, Inc. |
Schedule 9.1.12
Surety Obligations
None.
Schedule 9.1.13
Federal Employer Identification Numbers
|
|
|
Obligor |
|
FEIN |
EnPro Industries, Inc. |
|
01-0573945 |
Coltec Industries Inc |
|
|
Coltec Industrial Products LLC |
|
|
Stemco Holdings, Inc. |
|
|
Stemco LP |
|
|
Corrosion Control Corporation |
|
|
Coltec International Services Co. |
|
|
GGB, Inc. |
|
|
GGB LLC |
|
|
Compressor Services Holdings, Inc. |
|
|
Compressor Products Holdings, Inc. |
|
|
STEMCO Kaiser Incorporated |
|
|
Schedule 9.1.15
Intellectual Property
1. |
|
Obligors U.S. registered patents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Owner Name |
|
Title |
|
Serial No. |
|
Filed Date |
|
Patent No. |
|
Issue Date |
Coltec Industrial
Products LLC
|
|
FIRE-RESISTANT FLANGE SPACER
|
|
09/708,260
|
|
11/8/2000
|
|
6,484,749 |
|
11/26/2002 |
Coltec Industrial
Products LLC
|
|
PROCESS FOR PRODUCING FILLED
POLYTETRAFLUOROETHYLENE RESIN
COMPOSITE MATERIALS AND
PRODUCTS
|
|
08/608,304
|
|
2/28/1996
|
|
5,697,390 |
|
12/16/1997 |
Coltec Industrial
Products LLC
|
|
PROFILED PLATE VALVE
|
|
09/759,779
|
|
1/11/2001
|
|
6,510,868 |
|
1/28/2003 |
Coltec Industrial
Products LLC
|
|
VALVE FOR SENSING AT LEAST ONE
CONDITION WITHIN A COMPRESSOR
|
|
09/733,142
|
|
12/8/2000
|
|
6,485,265 |
|
11/26/2002 |
Coltec Industrial
Products LLC
|
|
ABRASION-RESISTANT
POLYTETRAFLUOROETHYLENE TAPE
|
|
09/992,776
|
|
11/14/2001
|
|
7,008,989 |
|
3/7/2006 |
Coltec Industrial
Products LLC
|
|
CYCLE INDICATOR FOR FLUID
DISTRIBUTION SYSTEMS
|
|
11/186,461
|
|
7/21/2005
|
|
7,461,670 |
|
12/9/2008 |
Coltec Industrial
Products LLC
|
|
CYCLE INDICATOR FOR FLUID
DISTRIBUTION SYSTEMS
|
|
29/304,491
|
|
3/3/2008
|
|
D570,236 |
|
6/3/2008 |
Coltec Industrial
Products LLC
|
|
CYCLE INDICATOR FOR FLUID
DISTRIBUTION SYSTEMS
|
|
29/319,038
|
|
6/3/2008
|
|
D591,627 |
|
5/5/2009 |
Coltec Industrial
Products LLC
|
|
CYCLE INDICATOR FOR FLUID
DISTRIBUTION SYSTEMS
|
|
29/336,545
|
|
5/5/2009
|
|
D613,631 |
|
4/13/2010 |
Coltec Industrial
Products LLC
|
|
CYCLE INDICATOR FOR FLUID
DISTRIBUTION SYSTEMS
|
|
29/359,497
|
|
4/12/2010 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
ENVIRONMENTAL COMPRESSOR
PROTECTION ASSEMBLY
|
|
11/867,487
|
|
10/4/2007 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
ENVIRONMENTAL COMPRESSOR
PROTECTION ASSEMBLY
|
|
11/867,519
|
|
10/4/2007
|
|
7,806,235 |
|
10/5/2010 |
Coltec Industrial
Products LLC
|
|
ENVIRONMENTAL COMPRESSOR
PROTECTION ASSEMBLY
|
|
29/322,344
|
|
8/1/2008
|
|
D597,630 |
|
8/4/2009 |
Coltec Industrial
Products LLC
|
|
FLUID DIVIDER BLOCK
|
|
29/331,773
|
|
1/30/2009
|
|
D615,619 |
|
5/11/2010 |
Coltec Industrial
Products LLC
|
|
FLUID DIVIDER BLOCK
|
|
29/361,348
|
|
5/10/2010 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
FLUID DIVIDER BLOCK SUITABLE
FOR USE AT HIGH PRESSURES
|
|
10/816,212
|
|
4/1/2004
|
|
7,096,889 |
|
8/29/2006 |
Coltec Industrial
Products LLC
|
|
FLUID DIVIDER BLOCK SUITABLE
FOR USE AT HIGH PRESSURES
|
|
12/582,569
|
|
10/20/2009 |
|
|
|
|
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Owner Name |
|
Title |
|
Serial No. |
|
Filed Date |
|
Patent No. |
|
Issue Date |
Coltec Industrial
Products LLC
|
|
FLUID DIVIDER BLOCK SUITABLE
FOR USE AT HIGH PRESSURES
(APPEAL NO. 2010-007151)
|
|
11/405,383
|
|
4/17/2006 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
FLUID FLOW MONITOR AND CONTROL
SYSTEM
|
|
10/402,205
|
|
3/26/2003
|
|
6,850,849 |
|
2/1/2005 |
Coltec Industrial
Products LLC
|
|
FLUID FLOW MONITOR AND CONTROL
SYSTEM
|
|
11/003,932
|
|
12/3/2004
|
|
7,720,574 |
|
5/18/2010 |
Coltec Industrial
Products LLC
|
|
FLUID FLOW MONITOR AND CONTROL
SYSTEM
|
|
12/759,468
|
|
4/13/2010 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
FLUID FLOW MONITORING SYSTEM
|
|
10/176,385
|
|
6/20/2002
|
|
6,823,270 |
|
11/23/2004 |
Coltec Industrial
Products LLC
|
|
FLUID FLOW MONITORING SYSTEM
|
|
10/996,129
|
|
11/22/2004
|
|
7,379,827 |
|
5/27/2008 |
Coltec Industrial
Products LLC
|
|
IMPROVED CHECK VALVE AND
METHOD AND APPARATUS FOR
EXTENDING CHECK VALVE LIFE
|
|
11/411,424
|
|
4/26/2006 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
IMPROVED CHECK VALVE AND
METHOD AND APPARATUS FOR
EXTENDING CHECK VALVE LIFE
|
|
12/423,375
|
|
4/14/2009 |
|
|
|
|
Coltec Industrial
Products LLC
|
|
INGREDIENT FILLED
POLYTETRAFLUOROETHYLENE DENTAL
FLOSS DEVOID TO GRIP ENHANCING
COATING
|
|
08/678,619
|
|
7/10/1996
|
|
5,911,228 |
|
6/15/1999 |
Coltec Industrial
Products LLC
|
|
INTEGRATED FLUID FLOW
EVALUATION APPARATUS AND
METHOD
|
|
08/528,865
|
|
9/15/1995
|
|
5,835,372 |
|
11/10/1998 |
Coltec Industrial
Products LLC
|
|
LASER MARKABLE
POLYTETRAFLUOROETHYLENE RESIN
MATERIAL AND METHOD OF MAKING
|
|
08/385,724
|
|
2/8/1995
|
|
5,501,827 |
|
3/26/1996 |
Coltec Industrial
Products LLC
|
|
REPLACEABLE CYLINDER PISTON
ASSEMBLY FOR A LUBRICATOR PUMP
|
|
08/529,277
|
|
9/15/1995
|
|
5,662,023 |
|
9/2/1997 |
Coltec Industrial
Products LLC
|
|
METHOD OF MANUFACTURING A PTFE
PREFORM USING THERMAL FUSION
|
|
10/212,631
|
|
8/05/2002
|
|
6,743,511 |
|
06/01/04 |
Coltec Industries
Inc.
|
|
AUTOMATED CATALYTIC REDUCTION
SYSTEM
|
|
07/987,044
|
|
12/7/1992
|
|
5,367,875 |
|
11/29/1994 |
Coltec Industries
Inc.
|
|
CAM SECTIONS FOR A V-TYPE
DIESEL ENGINE
|
|
07/922,581
|
|
7/30/1992
|
|
5,287,840 |
|
2/22/1994 |
Coltec Industries
Inc.
|
|
FUEL SUPPLY SYSTEM WITH HIGH
TURN DOWN RATIO
|
|
07/977,937
|
|
11/18/1992
|
|
5,297,520 |
|
3/29/1994 |
Coltec Industries
Inc.
|
|
ABRASIVE DENTAL FLOSS AND
METHOD OF MAKING SAME
|
|
12/057,058
|
|
3/27/2008 |
|
|
|
|
Coltec Industries
Inc.
|
|
GASKET
|
|
08/293,571
|
|
8/19/1994
|
|
5,421,594 |
|
6/6/1995 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Owner Name |
|
Title |
|
Serial No. |
|
Filed Date |
|
Patent No. |
|
Issue Date |
Coltec Industries
Inc.
|
|
HYBRID GASKET
|
|
08/935,687
|
|
9/23/1997
|
|
6,092,811 |
|
7/25/2000 |
Coltec Industries
Inc.
|
|
ANNULAR SEALING DEVICE
|
|
61/381,213
|
|
9/9/2010 |
|
|
|
|
Corrosion Control
Corporation
|
|
INCREASED PRESSURE FLUID
CARRYING PIPELINE SYSTEM AND
METHOD THEREFOR
|
|
08/798,362
|
|
2/10/1997
|
|
5,938,246 |
|
8/17/1999 |
Corrosion Control
Corporation
|
|
ISOLATION GASKET FOR CRITICAL
SERVICE FLOW LINE APPLICATIONS
|
|
07/853,489
|
|
3/18/1992
|
|
5,316,320 |
|
5/31/1994 |
Corrosion Control
Corporation
|
|
PROTECTIVE SEAL FOR USE IN
FLUID FLOW LINES AND METHOD
THEREFOR
|
|
07/960,781
|
|
10/14/1992
|
|
5,427,386 |
|
6/27/1995 |
Corrosion Control
Corporation
|
|
SEAL DEVICE FOR FLOW LINE
APPLICATIONS
|
|
08/110,562
|
|
8/23/1993
|
|
5,518,257 |
|
5/21/1996 |
Corrosion Control
Corporation
|
|
TANDEM SEAL DEVICE FOR FLOW
LINE APPLICATIONS
|
|
08/138,129
|
|
10/15/1993
|
|
5,564,715 |
|
10/15/1996 |
Corrosion Control
Corporation
|
|
ISOLATION GASKET, SYSTEM, AND
METHOD OF MANUFACTURE
|
|
12/058,498
|
|
3/28/2008 |
|
|
|
|
GGB, Inc.
|
|
BOREABLE PLAIN BEARING MATERIAL
|
|
10/792,429
|
|
3/3/2004
|
|
7,491,353 |
|
2/17/2009 |
GGB, Inc.
|
|
METAL-BACKED PLAIN BEARING
|
|
12/197,904
|
|
8/25/2008 |
|
|
|
|
GGB, Inc.
|
|
PLASTIC SHOES FOR COMPRESSORS
|
|
11/755,394
|
|
5/30/2007
|
|
7,849,783 |
|
12/14/2010 |
GGB, Inc.
|
|
VALVE MONITORING SYSTEM AND
METHOD
|
|
11/134,182
|
|
5/20/2005
|
|
7,318,350 |
|
1/15/2008 |
GGB, Inc.
|
|
BEARING MATERIAL
|
|
08/244,759
|
|
6/8/1994
|
|
5,416,154 |
|
5/16/1995 |
GGB, Inc.
|
|
METHOD OF FORMING A BEARING
|
|
09/297,791
|
|
5/6/1999
|
|
6,289,590 |
|
9/18/2001 |
GGB, Inc.
|
|
PRELOADED CUSHIONED BEARING
ASSEMBLY
|
|
09/581,281
|
|
6/9/2000
|
|
6,416,226 |
|
7/9/2002 |
GGB, Inc.
|
|
BEARING MATERIAL
|
|
09/762,336
|
|
2/5/2001
|
|
6,461,679 |
|
10/8/2002 |
GGB, Inc.
|
|
PLAIN BEARING
|
|
08/553,597
|
|
12/8/1995
|
|
5,911,514 |
|
6/15/1999 |
Stemco LP
|
|
APPARATUS FOR ISOLATING A
SENSOR FROM VIBRATION
|
|
12/388,403
|
|
2/18/2009 |
|
|
|
|
Stemco LP
|
|
CONTAMINANT EXCLUDING HUBCAP
VENT PLUG
|
|
08/891,477
|
|
7/11/1997
|
|
5,860,708 |
|
1/19/1999 |
Stemco LP
|
|
EARLY WARNING DEVICE FOR TIRE
RIMS AND HUB ASSEMBLIES
|
|
09/022,537
|
|
2/12/1998
|
|
5,959,365 |
|
9/28/1999 |
Stemco LP
|
|
ELECTRONIC HUBODOMETER
|
|
10/697,743
|
|
10/30/2003
|
|
6,940,940 |
|
9/6/2005 |
Stemco LP
|
|
GRAVITY BASED BRAKE STROKE
SENSOR METHODS AND SYSTEMS
|
|
11/201,009
|
|
8/10/2005
|
|
7,398,141 |
|
7/8/2008 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Owner Name |
|
Title |
|
Serial No. |
|
Filed Date |
|
Patent No. |
|
Issue Date |
Stemco LP
|
|
GRAVITY BASED BRAKE STROKE
SENSOR METHODS AND SYSTEMS
|
|
12/168,795
|
|
7/7/2008 |
|
|
|
|
Stemco LP
|
|
HUB SEAL WITH LOW INSTALLATION
LOAD AND ROTATION PREVENTION
STRUCTURE
|
|
09/102,534
|
|
6/22/1998
|
|
6,158,743 |
|
12/12/2000 |
Stemco LP
|
|
HUB SEAL WITH MACHINABLE
THRUST RING
|
|
08/957,807
|
|
10/24/1997
|
|
5,997,005 |
|
12/7/1999 |
Stemco LP
|
|
HUB SEAL WITH MACHINABLE
THRUST RING AND LAY-DOWN
SEALING LIP
|
|
09/048,379
|
|
3/26/1998
|
|
6,170,833 |
|
1/9/2001 |
Stemco LP
|
|
HUBCAP WITH VENTED CLOSURE
|
|
08/572,921
|
|
12/15/1995
|
|
5,752,746 |
|
5/19/1998 |
Stemco LP
|
|
IDENTIFICATION AND MONITORING
OF VEHICLE SENSORS
|
|
11/872,485
|
|
10/15/2007 |
|
|
|
|
Stemco LP
|
|
LOW TORQUE SEAL ASSEMBLY
|
|
10/134,134
|
|
4/26/2002
|
|
6,845,986 |
|
1/25/2005 |
Stemco LP
|
|
LOW TORQUE SEAL ASSEMBLY WITH
OPEN CELL FILTER MEDIA
|
|
10/159,991
|
|
5/31/2002
|
|
6,722,657 |
|
4/20/2004 |
Stemco LP
|
|
LUBRICANT DISTRIBUTING VANES
FOR UNITIZED WHEEL HUB AND
BEARING ASSEMBLY
|
|
09/324,329
|
|
6/2/1999
|
|
6,200,037 |
|
3/13/2001 |
Stemco LP
|
|
LUBRICANT MONITORING SYSTEM
|
|
10/157,566
|
|
5/29/2002
|
|
6,776,261 |
|
8/17/2004 |
Stemco LP
|
|
METHODS AND SYSTEMS FOR
MONITORING OF MOTOR VEHICLE
FUEL EFFICIENCY
|
|
11/872,444
|
|
10/15/2007 |
|
|
|
|
Stemco LP
|
|
MULTIPLE ACCELEROMETER
APPARATUS FOR COUNTING
ROTATIONS OF AN OBJECT, AND
METHODS OF USE
|
|
12/842,446
|
|
7/23/2010 |
|
|
|
|
Stemco LP
|
|
ON-BOARD LOW-POWER VEHICLE
CONDITION INDICATOR
|
|
12/617,433
|
|
11/12/2009 |
|
|
|
|
Stemco LP
|
|
REMOTE COMMUNICATION DEVICE
AND SYSTEM FOR COMMUNICATION
|
|
10/861,119
|
|
6/4/2004
|
|
7,710,239 |
|
5/4/2010 |
Stemco LP
|
|
SELF-LOCKING NUT
|
|
11/852,510
|
|
9/10/2007
|
|
7,811,038 |
|
10/12/2010 |
Stemco LP
|
|
SINGLE PIECE NUT ASSEMBLY
|
|
12/847,959
|
|
7/30/2010 |
|
|
|
|
Stemco LP
|
|
SINTERED COMPOSITE FRICTION
MATERIAL COMPRISING
FLUOROCARBON RESIN
|
|
07/717,221
|
|
6/17/1991
|
|
5,230,952 |
|
7/27/1993 |
Stemco LP
|
|
UNITIZED WHEEL HUB AND BEARING
ASSEMBLY
|
|
08/058,343
|
|
5/6/1993
|
|
5,328,275 |
|
7/12/1994 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Owner Name |
|
Title |
|
Serial No. |
|
Filed Date |
|
Patent No. |
|
Issue Date |
Stemco LP
|
|
UNITIZED WHEEL HUB AND BEARING
ASSEMBLY WITH LUBRICANT
DISTRIBUTING VANES
|
|
08/916,978
|
|
8/14/1997
|
|
5,904,427 |
|
5/18/1999 |
Stemco LP
|
|
VENTED HUBCAP
|
|
08/381,699
|
|
1/31/1995
|
|
5,785,390 |
|
7/28/1998 |
2. |
|
Obligors U.S. registered trademarks: |
|
|
|
|
|
|
|
|
|
|
|
Registration/(Application) |
|
Registration/(Application) |
Trademark |
|
Owner Name |
|
Number |
|
Date |
CVP |
|
Coltec Industrial Products LLC |
|
3,675,283 |
|
9/1/2009 |
FLUR-O-FRAN |
|
Coltec Industrial Products LLC |
|
807,815 |
|
5/3/1966 |
FRANCE |
|
Coltec Industrial Products LLC |
|
662,591 |
|
6/3/1958 |
NEOMAG |
|
Coltec Industrial Products LLC |
|
3,675,282 |
|
9/1/2009 |
PLASTI-THREAD |
|
Coltec Industrial Products LLC |
|
769,027 |
|
5/5/1964 |
PLASTOLON |
|
Coltec Industrial Products LLC |
|
3,042,223 |
|
1/10/2006 |
PLAST-O-LON |
|
Coltec Industrial Products LLC |
|
930,297 |
|
3/7/1972 |
POPR |
|
Coltec Industrial Products LLC |
|
3,738,330 |
|
1/12/2010 |
PREMIER |
|
Coltec Industrial Products LLC |
|
1,980,786 |
|
6/18/1996 |
PRIME-ETCH |
|
Coltec Industrial Products LLC |
|
3,277,482 |
|
8/7/2007 |
PRO FLO |
|
Coltec Industrial Products LLC |
|
3,781,132 |
|
4/27/2010 |
PRO-GRESS |
|
Coltec Industrial Products LLC |
|
1,579,869 |
|
1/30/1990 |
PROTECTING COMPRESSORS WORLD WIDE |
|
Coltec Industrial Products LLC |
|
3,773,979 |
|
4/13/2010 |
PROTECTING COMPRESSORS WORLD WIDE |
|
Coltec Industrial Products LLC |
|
3,779,958 |
|
4/27/2010 |
XDC |
|
Coltec Industrial Products LLC |
|
3,682,107 |
|
9/15/2009 |
ALCO |
|
Coltec Industries Inc |
|
578,534 |
|
8/11/1953 |
ALCO |
|
Coltec Industries Inc |
|
573,224 |
|
4/14/1953 |
AMICON |
|
Coltec Industries Inc |
|
3,355,162 |
|
12/18/2007 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Registration/(Application) |
|
Registration/(Application) |
Trademark |
|
Owner Name |
|
Number |
|
Date |
AMICON PLASTICS
|
|
Coltec Industries Inc
|
|
|
3,355,163 |
|
|
12/18/2007 |
CHEMISEAL
|
|
Coltec Industries Inc
|
|
|
439,630 |
|
|
7/6/1948 |
ENVIRO DESIGN
|
|
Coltec Industries Inc
|
|
|
1,896,777 |
|
|
5/30/1995 |
FAIRBANKS-MORSE
|
|
Coltec Industries Inc
|
|
|
1,297,387 |
|
|
9/25/1984 |
PLASTOMER
TECHNOLOGIES
|
|
Coltec Industries Inc
|
|
|
3,475,201 |
|
|
7/29/2008 |
RELIC WRAP
|
|
Coltec Industries Inc
|
|
|
3,708,465 |
|
|
11/10/2009 |
SOLAR THREAD
|
|
Coltec Industries Inc
|
|
|
3,674,805 |
|
|
8/25/2009 |
TEXOLON
|
|
Coltec Industries Inc
|
|
|
3,287,867 |
|
|
9/7/2007 |
PIKOTEK
|
|
Corrosion Control
Corporation
|
|
|
1,868,276 |
|
|
12/20/1994 |
DX
|
|
GGB, Inc.
|
|
|
1,711,161 |
|
|
9/1/1992 |
DX10 WITH DURASTRONG
TECHNOLOGY & Design
|
|
GGB, Inc.
|
|
|
3,616,793 |
|
|
5/5/2009 |
GGB
|
|
GGB, Inc.
|
|
|
3,634,366 |
|
|
6/9/2009 |
HI-EX
|
|
GGB, Inc.
|
|
|
1,727,003 |
|
|
10/27/1992 |
A HIGHER STANDARD OF
PERFORMANCE
|
|
Stemco LP
|
|
|
2,216,106 |
|
|
1/5/1999 |
AIRBAT
|
|
Stemco LP
|
|
|
3377995 |
|
|
2/5/2008 |
BAT RF
|
|
Stemco LP
|
|
|
3,054,033 |
|
|
1/31/2006 |
CREST XL
|
|
Stemco LP
|
|
|
3,897,802 |
|
|
12/28/2010 |
DATATRAC
|
|
Stemco LP
|
|
|
2,754,422 |
|
|
8/19/2003 |
DISCOVER
|
|
Stemco LP
|
|
|
2332418 |
|
|
3/21/2000 |
ENDEAVOR
|
|
Stemco LP
|
|
|
3,759,220 |
|
|
3/9/2010 |
GRIT GUARD
|
|
Stemco LP
|
|
|
1,034,829 |
|
|
3/2/1976 |
GUARDIAN
|
|
Stemco LP
|
|
|
884,653 |
|
|
1/20/1970 |
GUARDIAN
|
|
Stemco LP
|
|
|
1,120,036 |
|
|
6/12/1979 |
GUARDIAN HP
|
|
Stemco LP
|
|
|
2,282,686 |
|
|
10/5/1999 |
HANDBAT
|
|
Stemco LP
|
|
|
3377998 |
|
|
2/5/2008 |
HORIZON SP
|
|
Stemco LP
|
|
|
3,838,970 |
|
|
8/24/2010 |
HUBODOMETER
|
|
Stemco LP
|
|
|
2,272,084 |
|
|
8/24/1999 |
PRO-TORQ
|
|
Stemco LP
|
|
|
1,044,631 |
|
|
7/27/1976 |
SENTINEL
|
|
Stemco LP
|
|
|
2,214,200 |
|
|
12/29/1998 |
SENTINEL ESP
|
|
Stemco LP
|
|
|
2,554,894 |
|
|
4/2/2002 |
STEMCO
|
|
Stemco LP
|
|
|
788,516 |
|
|
4/20/1965 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
|
|
|
|
Registration/(Application) |
|
Registration/(Application) |
Trademark |
|
Owner Name |
|
Number |
|
Date |
STEMCO
|
|
Stemco LP
|
|
|
1016820 |
|
|
7/29/1975 |
STEMCO ESP
|
|
Stemco LP
|
|
|
2,606,528 |
|
|
8/13/2002 |
TOTAL QUALITY
MAINTENANCE
|
|
Stemco LP
|
|
|
2,521,359 |
|
|
12/18/2001 |
TRACBAT
|
|
Stemco LP
|
|
|
3378000 |
|
|
2/5/2008 |
ULTRA PEAK
|
|
Stemco LP
|
|
|
3,836,046 |
|
|
8/17/2010 |
VISTA HP
|
|
Stemco LP
|
|
|
3,901,389 |
|
|
1/4/2011 |
VOYAGER
|
|
Stemco LP
|
|
|
2,267,694 |
|
|
8/3/1999 |
WEBBAT
|
|
Stemco LP
|
|
|
3,651,761 |
|
|
7/7/2009 |
3. |
|
Obligors U.S. registered copyrights: |
|
|
|
|
|
|
|
|
|
Registration/(Application) |
Copyright |
|
Owner |
|
Number |
No. 122 Instruction
Manual Instructions for
use and care of the
ramset dual-action tool
|
|
Stemco LP
|
|
KK 52620 |
|
Ramset Fastening System
Light Duty Model
|
|
Stemco LP
|
|
AA 121862 |
|
Ramset Fastening System
Heavy Duty Model
|
|
Stemco LP
|
|
AA 121863 |
|
Ramset 122 Fastener
Specification Sheet
|
|
Stemco LP
|
|
KK 39473 |
|
The Stemco Corporation
|
|
Stemco LP
|
|
KK 67949 |
|
DataBAT
|
|
Stemco LP
|
|
TX 6-164-408 |
|
ENGINE DIAGNOSTIC
PROGRAM AND
INSTRUCTIONS
|
|
Coltec Industries Inc
|
|
TX 3-375-008 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions
3800TD8-1/8 Model
38TD8-1/8 Diesel
Stationary
|
|
Coltec Industries Inc
|
|
TX 625-885 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions 3800D8-1/8
Model 38D8-1/8 Diesel
Stationary
|
|
Coltec Industries Inc
|
|
TX 625-886 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions 3800D8-1/8
Model 38DD8-1/8 Dual
Fuel
|
|
Coltec Industries Inc
|
|
TX 625-887 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
Registration/(Application) |
Copyright |
|
Owner |
|
Number |
Fairbanks Morse Opposed
Piston Engines
Instructions
3800TD8-1/8 Model
38TDD8-1/8 Dual Fuel
|
|
Coltec Industries Inc
|
|
TX 625-888 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions
3800TD8-1/8 Model
38TD8-1/8 Diesel Marine
|
|
Coltec Industries Inc
|
|
TX 625-889 |
|
Colt*-Pielstick Type
PC-2.5V Diesel Engines
Instructions Type
PC-2.5V Diesel
|
|
Coltec Industries Inc
|
|
TX 625-890 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions 3800D8-1/8
Model 38D8-1/8 Diesel
Marine
|
|
Coltec Industries Inc
|
|
TX 625-891 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions 3800D8-1/8
Model 38DS8-1/8 Spark
Ignition
|
|
Coltec Industries Inc
|
|
TX 625-892 |
|
Colt-Pielstick PC-2
Series Diesels for
Power Generation (Sales
bulletin File 3038C)
|
|
Coltec Industries Inc
|
|
TX 639-031 |
|
From the makers of
Fairbanks Morse
Enginesthe worlds
most experienced marine
diesel, Colt-Pielstick.
|
|
Coltec Industries Inc
|
|
TX 639-032 |
|
Colt-Pielstick PC-2
Series Diesels for
Marine Service (Sales
bulletin File 3034C)
|
|
Coltec Industries Inc
|
|
TX 705-278 |
|
Engine description,
Colt-Pielstick PC2.5
diesel engines : [file
no. 3076]
|
|
Coltec Industries Inc
|
|
TX 705-279 |
|
Colt-Pielstick Type
PC-2.3 V Diesel Engines
Instructions Type
PC-2.3V Dual Fuel
|
|
Coltec Industries Inc
|
|
TX 1-393-078 |
|
Colt-Pielstick type
PC-2V diesel engines,
instructions type PC-2V
diesel marine.
|
|
Coltec Industries Inc
|
|
TX 1-393-079 |
|
Colt-Pielstick type
PC-2.3V diesel engines,
instructions type
PC-2.3V diesel engines.
|
|
Coltec Industries Inc
|
|
TX 1-393-080 |
Schedule 9.1.15
Intellectual Property
|
|
|
|
|
|
|
|
|
Registration/(Application) |
Copyright |
|
Owner |
|
Number |
Colt-Pielstick type
PC-2V diesel engines,
instructions type PC-2V
diesel.
|
|
Coltec Industries Inc
|
|
TX 1-393-081 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions
3800TDS8-1/8 Model
38TDS8-1/8 Spark
Ignition
|
|
Coltec Industries Inc
|
|
TX 1-393-082 |
|
Fairbanks Morse Opposed
Piston Engines
Instructions
P3800F5-1/4 Model
38F5-1/4
|
|
Coltec Industries Inc
|
|
TX 1-515-312 |
|
Fairbanks
MorseIgnition
Generator9000RT
Catalog
|
|
Coltec Industries Inc
|
|
TX 2-216-607 |
|
TA-7 FUEL CONTROL
SYSTEM TECHNICAL
DRAWINGS VOLUME #1
Collection of Technical
Drawings
|
|
Coltec Industries Inc
|
|
VAu 338-209 |
|
TA-7 FUEL CONTROL
SYSTEM TECHNICAL
DRAWINGS VOLUME #2
Collection of Technical
Drawings
|
|
Coltec Industries Inc
|
|
VAu 338-210 |
|
TA-7 FUEL CONTROL
SYSTEM TECHNICAL
DRAWINGS VOLUME #4
Collection of Technical
Drawings
|
|
Coltec Industries Inc
|
|
VAu 338-211 |
|
TA-7 FUEL CONTROL
SYSTEM TECHNICAL
DRAWINGS VOLUME #3
Collection of Technical
Drawings
|
|
Coltec Industries Inc
|
|
VAu 338-212 |
4. |
|
Obligors licenses related to registered Intellectual Property: |
|
a. |
|
License Agreement, dated January 9, 1995, between MAN B&W Diesel
Aktiengesellschaft and Coltec Industries Inc regarding MAN B&W 4-stroke Diesel and dual
fuel engines. |
|
|
b. |
|
License Agreement, dated April 20, 1983, between Societe DEtudes De Machines
Thermiques and Colt Industries Operating Corp, Fairbanks Morse Engine Division
regarding Type PC SEMT-PIELSTICK Engines. |
Schedule 9.1.15
Intellectual Property
|
c. |
|
License Agreement dated June 26, 2003 between Alien Technology Corporation and
Stemco LLC relating to RFID technology and patents. |
|
|
d. |
|
Nonexclusive License Agreement dated July 2004 between S&A Systems, Inc. and
Stemco LLC relating to U.S. Patent No. 5,524,034. |
Schedule 9.1.17
Compliance with Laws
1. |
|
Reference is made to the discussion of certain environmental matters in the Form 10-K for the
year ended December 31, 2010 filed by EnPro Industries, Inc., which discussion appears in various
sections including in Part II, Item 7, Managements Discussion and Analysis of Financial Condition
and Results of Operations under the heading Contingencies and the subheading Environmental and
in the notes to the Consolidated Financial Statements attached thereto (Note 19, Commitments and
Contingencies under the heading Environmental). |
Schedule 9.1.18
Permitted Restrictive Agreements
None.
Schedule 9.1.19
Litigation
1. |
|
Reference is made to the discussion of asbestos-related litigation in the Form 10-K for the year
ended December 31, 2010 filed by EnPro Industries, Inc., which discussion appears in various
sections including in Part II, Item 7, Managements Discussion and Analysis of Financial Condition
and Results of Operations under the heading Critical Accounting Policies and Estimates and the
subheading Asbestos and in the notes to the Consolidated Financial Statements attached thereto
(Note 19,Commitments and Contingencies under the heading Asbestos). |
Schedule 9.1.21
Capitalized and Operating Leases
1. |
|
EnPro Industries, Inc. is a party to a vehicle lease agreement with Donlen, which is subject
to renewal on an annual basis. Total annual lease payments are $1.5 million. |
|
2. |
|
Obligors and their Subsidiaries have entered into various operating leases in the Ordinary
Course of Business, none of which are Material Contracts. |
|
3. |
|
Obligors and their Subsidiaries are not party to any capitalized leases that are Material
Contracts. |
Schedule 9.1.24
Collective Bargaining Agreements
1. |
|
Agreement between the Fairbanks Morse Engine division of Coltec Industries Inc and the United
Steelworkers of America, AFL-CIO and Local Union 1533, August 16, 2008 to August 14, 2011. |
|
2. |
|
Agreement between GGB, LLC and Local No. 81134 of the International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers/Communication Workers of America AFL-CIO,
November 20, 2010 to November 20, 2014. |
Schedule 10.2.3
Permitted Debt
1. |
|
In connection with the issuance by EnPro Industries, Inc. of its 3.9375% Convertible Senior
Debentures due 2015, EnPro entered into call options (hedge and warrant transactions), which
entitle EnPro to purchase shares of its stock from Bank of America at $33.79 per share and
entitle Bank of America to purchase shares from EnPro at $46.78 per share. |
Schedule 10.2.4
Affiliate Transactions
1. |
|
Intercompany license arrangements related to Intellectual Property of the Obligors and their
Subsidiaries, entered into in the Ordinary Course of Business. |
2. |
|
Intercompany transfer pricing arrangements related to intercompany sales of good and services
among the Obligors and their Subsidiaries, entered into in the Ordinary Course of Business. |
Schedule 10.2.5
Permitted Liens
None.
Schedule 10.2.8
Restrictions on Upstream Payments
None.
Schedule 10.2.11
Approved Short-Term Investments
POLICY STATEMENT
|
|
|
|
|
Title: |
|
Tab: |
|
Number: |
SHORT TERM INVESTMENT
|
|
Finance
|
|
3.06 |
Policy
General Policy Statement
Periodically, the Company may have cash balances that are in excess of its immediate operating requirements.
It is the policy of this Company that such funds are to be consolidated centrally when possible and are to be
invested in appropriate short-term instruments for the benefit of the Company. It is, however, recognized
that exchange controls, tax considerations, debt covenants and other factors may limit the foreign
incorporated subsidiaries abilities to channel excess cash to the parent.
The purpose of this policy is to set forth guidelines and criteria for the operation of the Companys domestic
and foreign consolidated subsidiary short-term investment programs.
Investment Objectives (in order of importance)
1. To assure safety of principal.
2. To retain liquidity to meet projected and unexpected cash needs of the Company.
3. To attain the best available yield while retaining liquidity and minimizing risk.
Authority
The Treasurer is charged with oversight of the short-term investment program of the Company. The Treasurer
shall have such authority as is necessary and desirable to direct the program, including the authority to
open accounts with brokers and establish safekeeping accounts or other arrangements for the custody of
securities and to execute such documents as may be necessary. The Treasurer also has the authority within
this investment policy to delegate the daily investment activities to the senior cash management professional
within the Treasury Department and/or the Treasury Manager. The Treasurer will also be responsible for the
oversight of the investment strategies for each foreign incorporated subsidiary. Officers of a subsidiary,
authorized by that subsidiary to invest surplus funds, are responsible for implementation and compliance with
this investment policy for that subsidiary. Any deviations from this policy require the written approval of
the Companys Chief Financial Officer.
General Investment Parameters
|
1. |
|
All investments shall be denominated in the functional currency of the investing legal entity. Non-U.S.
Dollar denominated entities may also invest in USD instruments with the approval of the Treasurer. |
|
|
|
|
|
|
|
|
|
Initiated by: |
|
Issued by: |
|
Date Issued: |
|
Supercedes: |
|
Page: |
O. Lunking
|
|
W. Dries
|
|
4/30/10
|
|
6/30/05
|
|
1 of 3 |
Schedule 10.2.11
Approved Short-Term Investments
POLICY STATEMENT
|
|
|
|
|
|
|
Title: |
|
Tab: |
|
Number: |
SHORT TERM INVESTMENT
|
|
Finance
|
|
|
3.06 |
|
|
|
|
|
|
|
2. |
|
Investments must be capable of being liquidated into readily available cash with no loss of principal. |
|
|
3. |
|
Only high quality, investment grade instruments shall be used. |
|
|
4. |
|
Investments in tax-exempt securities or funds are authorized if the tax-equivalent yield is equal to or exceeds the yield on
taxable investments. |
|
|
5. |
|
Credit exposure (excluding settlement risk) to any one institution resulting from short-term investments shall not exceed $25
million. |
|
|
|
|
|
|
|
Approved Investments |
|
Limit |
1.
|
|
United States Treasury securities (bills, notes and
bonds) and securities of U.S. Government
agencies.
|
|
None |
|
|
|
|
|
2.
|
|
Direct government obligations of countries outside
the United States (must be rated A or better by S&P).
|
|
$25,000,000
($10,000,000 per issuer rated AA- or better) |
|
|
|
|
|
3.
|
|
Bank deposits or similar investments with any bank
that carries an S&P rating of A or better.
|
|
$50,000,000
($25,000,000 per institution
rated A or better,
$10,000,000 if rated BBB+) |
|
|
|
|
|
4.
|
|
Commercial paper (rated A-1 by Standard & Poors
and P-1 by Moodys) purchased directly from the
issuer or through recognized money market dealers.
|
|
$25,000,000
($5,000,000 per issuer) |
|
|
|
|
|
|
|
|
|
Initiated by: |
|
Issued by: |
|
Date Issued: |
|
Supercedes: |
|
Page: |
O. Lunking
|
|
W. Dries
|
|
4/30/10
|
|
6/30/05
|
|
2 of 3 |
Schedule 10.2.11
Approved Short-Term Investments
POLICY STATEMENT
|
|
|
|
|
|
|
Title: |
|
Tab: |
|
Number: |
SHORT TERM INVESTMENT
|
|
Finance
|
|
|
3.06 |
|
|
|
|
|
|
6.
|
|
Diversified short-term investment funds that primarily hold securities
similar to those described in 1 through 5 above.
|
|
None
($35,000,000 per fund) |
|
|
|
|
|
7.
|
|
All other prudent, liquid investments that are
consistent with the investment objectives and parameters contained in this
policy and are similar to securities described in 1 through 5 above.
|
|
$20,000,000 with CFO approval,
$5,000,000 with Treasurer approval |
|
|
|
|
|
|
|
|
|
Initiated by: |
|
Issued by: |
|
Date Issued: |
|
Supercedes: |
|
Page: |
O. Lunking
|
|
W. Dries
|
|
4/30/10
|
|
6/30/05
|
|
3 of 3 |