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Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 30, 2004
among
C&D TECHNOLOGIES, INC.
and
CERTAIN OF ITS SUBSIDIARIES,
as the Borrowers,
THE SUBSIDIARIES IDENTIFIED HEREIN,
as the Guarantors,
CITIZENS BANK,
as Syndication Agent,
LASALLE BANK NATIONAL ASSOCIATION,
as Co-Agent,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer
and
THE OTHER LENDERS PARTY HERETO
Arranged By:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..............................................................1
1.01 Defined Terms...................................................................................1
1.02 Other Interpretive Provisions..................................................................24
1.03 Accounting Terms...............................................................................24
1.04 Rounding.......................................................................................25
1.05 References to Agreements and Laws..............................................................25
1.06 Exchange Rates; Currency Equivalents...........................................................25
1.07 Additional Alternative Currencies..............................................................26
1.08 Change of Currency.............................................................................26
1.09 Times of Day...................................................................................27
1.10 Letter of Credit Amounts.......................................................................27
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.......................................................27
2.01 Revolving Loans................................................................................27
2.02 Borrowings, Conversions and Continuations of Loans.............................................28
2.03 Letters of Credit..............................................................................30
2.04 Swing Line Loans...............................................................................37
2.05 Prepayments....................................................................................39
2.06 Termination or Reduction of Aggregate Revolving Commitments....................................40
2.07 Repayment of Loans.............................................................................40
2.08 Interest.......................................................................................40
2.09 Fees...........................................................................................41
2.10 Computation of Interest and Fees...............................................................42
2.11 Evidence of Debt...............................................................................42
2.12 Payments Generally.............................................................................42
2.13 Sharing of Payments............................................................................44
2.14 Joint and Several Liability....................................................................45
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY.....................................................46
3.01 Taxes..........................................................................................46
3.02 Illegality.....................................................................................47
3.03 Inability to Determine Rates...................................................................47
3.04 Increased Cost and Reduced Return; Capital Adequacy............................................48
3.05 Funding Losses.................................................................................48
3.06 Matters Applicable to all Requests for Compensation............................................49
3.07 Survival.......................................................................................49
ARTICLE IV GUARANTY....................................................................................49
4.01 The Guaranty...................................................................................49
4.02 Obligations Unconditional......................................................................50
4.03 Reinstatement..................................................................................51
4.04 Certain Additional Waivers.....................................................................51
4.05 Remedies.......................................................................................51
4.06 Rights of Contribution.........................................................................51
4.07 Guarantee of Payment; Continuing Guarantee.....................................................51
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS....................................................52
5.01 Conditions of Initial Credit Extension.........................................................52
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5.02 Conditions to all Credit Extensions............................................................54
ARTICLE VI REPRESENTATIONS AND WARRANTIES..............................................................55
6.01 Existence, Qualification and Power.............................................................55
6.02 Authorization; No Contravention................................................................55
6.03 Governmental Authorization; Other Consents.....................................................55
6.04 Binding Effect.................................................................................55
6.05 Financial Statements; No Material Adverse Effect...............................................55
6.06 Litigation.....................................................................................56
6.07 No Default.....................................................................................56
6.08 Ownership of Property; Liens...................................................................56
6.09 Environmental Compliance.......................................................................57
6.10 Insurance......................................................................................57
6.11 Taxes..........................................................................................57
6.12 ERISA Compliance...............................................................................58
6.13 Subsidiaries...................................................................................58
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.................58
6.15 Disclosure.....................................................................................59
6.16 Compliance with Laws...........................................................................59
6.17 Intellectual Property; Licenses, Etc...........................................................59
6.18 Broker's Fees..................................................................................59
6.19 Labor Matters..................................................................................60
ARTICLE VII AFFIRMATIVE COVENANTS......................................................................60
7.01 Financial Statements...........................................................................60
7.02 Certificates; Other Information................................................................61
7.03 Notices........................................................................................62
7.04 Payment of Obligations.........................................................................63
7.05 Preservation of Existence, Etc.................................................................63
7.06 Maintenance of Properties......................................................................63
7.07 Maintenance of Insurance.......................................................................63
7.08 Compliance with Laws...........................................................................64
7.09 Books and Records..............................................................................64
7.10 Inspection Rights..............................................................................64
7.11 Use of Proceeds................................................................................64
7.12 Additional Subsidiaries........................................................................64
7.13 ERISA Compliance...............................................................................65
7.14 Pledged Assets.................................................................................65
ARTICLE VIII NEGATIVE COVENANTS........................................................................65
8.01 Liens..........................................................................................65
8.02 Investments....................................................................................67
8.03 Indebtedness...................................................................................68
8.04 Fundamental Changes............................................................................69
8.05 Dispositions...................................................................................69
8.06 Restricted Payments............................................................................70
8.07 Change in Nature of Business...................................................................70
8.08 Transactions with Affiliates and Insiders......................................................70
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8.09 Burdensome Agreements..........................................................................71
8.10 [Reserved].....................................................................................71
8.11 Financial Covenants............................................................................71
8.12 Prepayment of Other Indebtedness, Etc..........................................................71
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.........72
8.14 Ownership of Subsidiaries......................................................................72
8.15 Sale and Leaseback Transactions................................................................72
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES..............................................................72
9.01 Events of Default..............................................................................72
9.02 Remedies Upon Event of Default.................................................................74
9.03 Application of Funds...........................................................................75
ARTICLE X ADMINISTRATIVE AGENT.........................................................................76
10.01 Appointment and Authorization of Administrative Agent.................................76
10.02 Delegation of Duties..................................................................76
10.03 Liability of Administrative Agent.....................................................76
10.04 Reliance by Administrative Agent......................................................77
10.05 Notice of Default.....................................................................77
10.06 Credit Decision; Disclosure of Information by Administrative Agent....................78
10.07 Indemnification of Administrative Agent...............................................78
10.08 Administrative Agent in its Individual Capacity.......................................79
10.09 Successor Administrative Agent........................................................79
10.10 Administrative Agent May File Proofs of Claim.........................................79
10.11 Collateral and Guaranty Matters.......................................................80
10.12 Other Agents; Arrangers and Managers..................................................80
ARTICLE XI MISCELLANEOUS...............................................................................81
11.01 Amendments, Etc.......................................................................81
11.02 Notices and Other Communications; Facsimile Copies....................................82
11.03 No Waiver; Cumulative Remedies........................................................83
11.04 Attorney Costs, Expenses and Taxes....................................................83
11.05 Indemnification by the Borrowers......................................................84
11.06 Payments Set Aside....................................................................85
11.07 Successors and Assigns................................................................85
11.08 Confidentiality.......................................................................87
11.09 Set-off...............................................................................88
11.10 Interest Rate Limitation..............................................................88
11.11 Counterparts..........................................................................88
11.12 Integration...........................................................................88
11.13 Survival of Representations and Warranties............................................89
11.14 Severability..........................................................................89
11.15 Tax Forms.............................................................................89
11.16 Replacement of Lenders................................................................91
11.17 Governing Law.........................................................................91
11.18 Waiver of Right to Trial by Jury......................................................91
11.19 USA PATRIOT Act Notice................................................................92
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SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Pro Rata Shares
2.03 Existing Letters of Credit
6.13 Subsidiaries
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B Form of Swing Line Loan Notice
C-1 Form of Revolving Note
C-2 Form of Swing Line Note
D Form of Compliance Certificate
E Form of Assignment and Assumption
F Form of Joinder Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of June
30, 2004 among C&D TECHNOLOGIES, INC., a Delaware corporation (the "Parent"),
C&D INTERNATIONAL INVESTMENT HOLDINGS INC., a Delaware corporation
("International" and together with the Parent, the "Borrowers"), the Guarantors
(defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
Pursuant to that Amended and Restated Credit Agreement (as amended,
modified and supplemented, the "Existing Credit Agreement"), dated as of
November 20, 2003, among the Parent, the Subsidiaries of the Parent identified
therein, the lenders identified therein and Bank of America, N.A., as
administrative agent, the lenders party thereto agreed to provide $100,000,000
in credit facilities to the Parent. The Parent has requested that the credit
facilities provided pursuant to the Existing Credit Agreement be amended and
restated on the terms and conditions set forth herein. The Lenders have agreed
to the Parent's request and this Agreement is given in amendment to, restatement
of and substitution for the Existing Credit Agreement.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Acquisition", by any Person, means the acquisition by such Person, in
a single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency,
the Administrative Agent's address and, as appropriate, account as set forth on
Schedule 11.02 with respect to such currency or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify the Parent and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 5% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Revolving Commitments" means the Revolving Commitments of
all the Lenders. The initial amount of the Aggregate Revolving Commitments in
effect on the Closing Date is ONE HUNDRED SEVENTY-FIVE MILLION DOLLARS
($175,000,000).
"Agreement" means this Credit Agreement, as amended, modified,
supplemented and extended from time to time.
"Alternative Currency" means each of Euro, Sterling, Yen, Canadian
Dollars and each other currency (other than Dollars) that is approved in
accordance with Section 1.07.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency as determined by the Administrative Agent or the
L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of
the Aggregate Commitments and $50 million. The Alternative Currency Sublimit is
part of, and not in addition to, the Aggregate Revolving Commitments.
"Applicable Rate" means the following percentages per annum, based upon
the Consolidated Total Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(b):
------------ ------------------------------- -------------------- ------------------------- ---------------------
Pricing Consolidated Total Letter of Credit Fee
Tier Leverage Ratio Commitment Fee and Eurocurrency Loans Base Rate Loans
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
I Less than or equal to 1.0:1.0 0.250% 1.00% 0.00%
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
II Less than or equal to 1.5:1.0 0.250% 1.25% 0.00%
but greater than 1.0:1.0
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
III Less than or equal to 2.0:1.0 0.300% 1.50% 0.00%
but greater than 1.5:1.0
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
IV Less than or equal to 2.5:1.0 0.375% 1.75% 0.25%
but greater than 2.0:1.0
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
V Less than or equal to 3.0:1.0 0.500% 2.00% 0.50%
but greater than 2.5:1.0
------------ ------------------------------- -------------------- ------------------------- ---------------------
------------ ------------------------------- -------------------- ------------------------- ---------------------
VI Greater than 3.0:1.0 0.500% 2.25% 0.75%
------------ ------------------------------- -------------------- ------------------------- ---------------------
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Total Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Tier VI shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and shall
continue to apply until the first Business Day immediately following the date
such Compliance Certificate is actually delivered. The Applicable Rate in effect
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from the Closing Date through the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 7.02(b) for the
fiscal quarter ending October 31, 2004 shall be determined based upon Pricing
Tier VI.
"Applicable Time" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease, the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease, (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment, and (d) in
the case of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the
obligations of the lessee for rental payments during the term of such lease).
"Audited Financial Statements" means the audited consolidated balance
sheet of the Parent and its Subsidiaries for the fiscal year ended January 31,
2003, and the related consolidated statements of income or operations,
shareholders' equity and cash flows of the Parent and its Subsidiaries for such
fiscal year, including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments,
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate". The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's 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 announced
rate. Any change in the "prime rate" announced by Bank of America shall take
3
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.
"Borrowers" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type, in the same currency and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized or required to close under the Laws of,
or are in fact closed in, the state where the Administrative Agent's Office with
respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any
such Eurocurrency Rate Loan, or any other dealings in Dollars to be
carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in
deposits in Dollars are conducted by and between banks in the London
interbank Eurocurrency market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings,
disbursements, settlements and payments in Euro in respect of any such
Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate
Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or Euro in
respect of a Eurocurrency Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than
Dollars or Euro to be carried out pursuant to this Agreement in respect
of any such Eurocurrency Rate Loan (other than any interest rate
settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of
such currency.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Parent and its Subsidiaries at such time.
"Canadian Dollars" means the lawful currency of Canada.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
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"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations, (e) Investments,
classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d), and (f)
demand deposits, time deposits and certificates of deposit, with a Dollar
equivalent not in excess of $30,000,000 in the aggregate, denominated in any of
the British Pound, German ▇▇▇▇, Italian Lira, Spanish Peseta, Euro, Irish Punt,
Dutch Guilder, Swiss Franc, French Franc, Canadian Dollar, Mexican Peso, Chinese
Renminbi, Malaysian Ringgit, Australian Dollar, Singapore Dollar or Brazilian
Real of any commercial bank of recognized standing reasonably acceptable to the
Administrative Agent.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all Capital Stock that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of forty percent (40%) of
the Capital Stock of the Parent entitled to vote for members of the
board of directors or equivalent governing body of the Parent on a
fully diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right); or
(b) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Parent cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
5
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).
"Closing Date" means the date hereof.
"Collateral" means a collective reference to all real and personal
Property with respect to which Liens in favor of the Administrative Agent for
the benefit of itself and the Lenders are purported to be granted pursuant to
and in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Pledge
Agreement and such other security documents as may be executed and delivered by
the Loan Parties pursuant to the terms of Section 7.14.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Capital Expenditures" means, for any period, for the
Parent and its Subsidiaries on a consolidated basis, all capital expenditures,
as determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include (a) expenditures made with proceeds of
any Involuntary Disposition to the extent such expenditures are used to purchase
Property that is useful in the business of the Parent and its Subsidiaries or
(b) Permitted Acquisitions.
"Consolidated EBITDA" means, for any period for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b)
the provision for federal, state, local and foreign income taxes payable by the
Parent and its Subsidiaries for such period, (c) the amount of depreciation and
amortization expense for such period and (d) non-cash charges incurred in
connection with asset impairment and the write-down of goodwill, all as
determined in accordance with GAAP.
"Consolidated Fixed Charges" means, for any period for the Parent and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the
cash portion of Consolidated Interest Charges for such period plus (ii)
Consolidated Scheduled Funded Debt Payments for such period plus (iii)
Restricted Payments made during such period, all as determined in accordance
with GAAP.
"Consolidated Fixed Charges Coverage Ratio" means, as of any date of
determination, the ratio of (i) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended to (ii) Consolidated Fixed Charges for the
period of the four fiscal quarters most recently ended.
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Parent and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Charges" means, for any period for the Parent
and its Subsidiaries on a consolidated basis, all interest expense of the Parent
and its Subsidiaries for such period determined in accordance with GAAP
(including, without limitation, the portion of rent expense of the Parent and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP).
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"Consolidated Net Income" means, for any period for the Parent and its
Subsidiaries on a consolidated basis, the net income of the Parent and its
Subsidiaries for such period as determined in accordance with GAAP, but
excluding for purposes of the Consolidated Fixed Charges Coverage Ratio and the
Consolidated Total Leverage Ratio any extraordinary gains or losses (other than
any extraordinary loss related to the write-down of goodwill) and related tax
effects thereon.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders' equity of the Parent and its Subsidiaries as of such
date determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means, for any period for
the Parent and its Subsidiaries on a consolidated basis, the sum of all
scheduled payments of principal on Consolidated Funded Indebtedness, as
determined in accordance with GAAP. For purposes of this definition, "scheduled
payments of principal" (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any
voluntary or mandatory prepayments made during the applicable period, (b) shall
be deemed to include the Attributable Indebtedness in respect of capital leases,
Synthetic Leases and Sale and Leaseback Transactions, (c) shall not include any
voluntary prepayments or mandatory prepayments required pursuant to Section 2.05
and (d) shall not include payments required under that Credit Agreement dated as
of March 1, 1999 among the Parent, the Subsidiaries of the Parent identified
therein, the lenders identified therein and Bank of America, N.A., as
administrative agent (which Credit Agreement was restated and replaced with the
Existing Credit Agreement in November 2003).
"Consolidated Total Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control" has the meaning specified in the definition of "Affiliate".
"Credit Extension" means each of the following: (a) a Borrowing and (b)
a L/C Credit Extension.
"Datel" means Datel Holding Corporation, a Delaware corporation.
"Datel Transaction" means the acquisition by the Parent of Datel
pursuant to the Datel Transaction Documents.
"Datel Transaction Documents" means the purchase agreement and all
other material documents, agreements and instruments delivered in connection
with the Datel Transaction (in each case including all schedules and exhibits
thereto).
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
7
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to any Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any Property
by the Parent or any Subsidiary (including the Capital Stock of any Subsidiary),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (a) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business of the Parent
and its Subsidiaries, (b) the sale, lease, license, transfer or other
disposition of machinery and equipment no longer used or useful in the conduct
of business of the Parent and its Subsidiaries, (c) any sale, lease, license,
transfer or other disposition of Property by the Parent or any Subsidiary to any
Loan Party, (d) any Involuntary Disposition by the Parent or any Subsidiary, (e)
any sale, lease, license, transfer or other disposition of Property by any
Foreign Subsidiary to another Foreign Subsidiary and (f) any disposition of any
"margin stock" within the meaning of Regulation U.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of Dollars with such Alternative
Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Dynamo" means the target identified to the Administrative Agent and
the Lenders prior to the Closing Date.
"Dynamo Acquired Business" means the assets or Capital Stock of Dynamo
identified in the Dynamo Transaction Documents.
"Dynamo Transaction" means the acquisition by the Parent of the Dynamo
Acquired Business pursuant to the Dynamo Transaction Documents.
"Dynamo Transaction Documents" means the purchase agreements and all
other material documents, agreements and instruments delivered in connection
with the Dynamo Transaction (in each case including all schedules and exhibits
thereto).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
8
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Parent (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, "Eligible Assignee" shall not include the
Parent or any of the Parent's Affiliates or Subsidiaries; and provided further,
however, that an Eligible Assignee shall include only a Lender, an Affiliate of
a Lender or another Person, which, through its Lending Offices, is capable of
lending the applicable Alternative Currencies to the Borrowers without the
imposition of any Taxes or additional Taxes, as the case may be.
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht
Treaty of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency.
"Environmental Laws" means any and all federal, state, local, foreign
and other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Parent or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Parent within the meaning of Section
414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the
Internal Revenue Code for purposes of provisions relating to Section 412 of the
Internal Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Parent or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
9
"Eurocurrency Rate" means, for any Interest Period with respect to a
Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurocurrency Base Rate
Eurocurrency Rate = --------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Base Rate" means, for such Interest Period:
(a) the applicable Screen Rate for such Interest Period; or
(b) if the applicable Screen Rate shall not be available, the
rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in the relevant currency
for delivery on the first day of such Interest Period in Same
Day Funds in the approximate amount of the Eurocurrency Rate
Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch (or other Bank of
America branch or Affiliate) to major banks in the London or
other offshore interbank market for such currency at their
request at approximately 4:00 p.m. (London time) two Business
Days prior to the first day of such Interest Period.
"Eurocurrency Reserve Percentage" means, for any day during
any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB 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"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan shall be adjusted
automatically as of the effective date of any change in the
Eurocurrency Reserve Percentage.
"Eurocurrency Rate Loan" means a Revolving Loan that bears interest at
a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All Revolving Loans
denominated in an Alternative Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Credit Agreement" has the meaning set forth in the Recitals
to this Agreement.
"Existing Letters of Credit" means the letters of credit outstanding
on the Closing Date and identified on Schedule 2.03.
"Facilities" means, at any time, a collective reference to the
facilities and real properties owned, leased or operated by the Parent or any
Subsidiary.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
10
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement dated as of June 3, 2004 among
the Parent, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of
the United States.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or
long-term (including the Obligations) and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all purchase money indebtedness or transactions;
(c) the principal portion of all obligations under conditional
sale or other title retention agreements relating to Property purchased
by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary
course of business);
(d) the maximum amount available to be drawn under letters of
credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(e) all obligations in respect of the deferred purchase price
of Property or services (other than trade accounts payable in the
ordinary course of business);
(f) Attributable Indebtedness in respect of capital leases,
Synthetic Leases, Sale and Leaseback Transactions and Securitization
Transactions;
(g) all preferred stock or other equity interests providing
for mandatory redemptions, sinking fund or like payments prior to the
Maturity Date;
(h) all Funded Indebtedness of others secured by (or for which
the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed;
11
(i) all Guarantees with respect to Funded Indebtedness of the
types specified in clauses (a) through (h) above of another Person; and
(j) all Funded Indebtedness of the types referred to in
clauses (a) through (i) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or joint
venturer, unless such Funded Indebtedness is expressly made
non-recourse to such Person.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board, consistently
applied and as in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means (a) the Parent, (b) International, (c) each Person
identified as a "Guarantor" on the signature pages hereto and (d) each other
Person that joins as a Guarantor pursuant to Section 7.12, together with their
successors and permitted assigns.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning set forth in Section 2.03(c)(i).
12
"Immaterial Domestic Subsidiary" means any Domestic Subsidiary that, as
of any date of determination, has total assets with an aggregate fair market
value of less than $100,000.
"Immaterial Foreign Subsidiary" means any Foreign Subsidiary unless and
until (a) the revenues of such Foreign Subsidiary exceed three percent (3%) of
the total revenues of the Parent and its Subsidiaries on a consolidated basis
determined in accordance with GAAP as of the end of the immediately preceding
fiscal quarter or (b) the book value of the assets of such Foreign Subsidiary
exceeds three percent (3%) of the book value of the total assets of the Parent
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
as of the end of the immediately preceding fiscal quarter; provided that if at
any time (i) the aggregate revenues of all Immaterial Foreign Subsidiaries
exceed six percent (6%) of the total revenues of the Parent and its Subsidiaries
on a consolidated basis determined in accordance with GAAP as of the end of the
immediately preceding fiscal quarter or (ii) the book value of the aggregate
assets of all Immaterial Foreign Subsidiaries exceeds six percent (6%) of the
book value of the total assets of the Parent and its Subsidiaries on a
consolidated basis determined in accordance with GAAP as of the end of the
immediately preceding fiscal quarter, then the Parent shall cause the Capital
Stock of one or more Immaterial Foreign Subsidiaries to be pledged in the manner
and to the extent required pursuant to Section 7.14 such that immediately after
such pledge the Immaterial Foreign Subsidiaries do not collectively exceed the
threshold in clause (i) or (ii) above.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) and (b) above of any other Person;
and
(d) all Indebtedness of the types referred to in clauses (a)
through (c) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or joint venturer
unless such Indebtedness is expressly made non-recourse to such Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Eurocurrency Rate Loan, the
last day of each Interest Period applicable to such Eurocurrency Rate Loan and
the Maturity Date; provided, however, that if any Interest Period for a
Eurocurrency Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan and any Swing Line
Loan, the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the applicable Borrower in its Loan
Notice; provided that:
13
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"Interim Financial Statements" means the unaudited consolidated
financial statements of the Parent and its Subsidiaries dated April 30, 2004 and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal quarter ended on that date.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"International" has the meaning specified in the introductory paragraph
hereto.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Capital Stock of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person, or (c) an Acquisition. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Involuntary Disposition" means any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any Property of the
Parent or any Subsidiary. The Shanghai Disposition shall be deemed an
Involuntary Disposition for purposes of this Agreement.
"IP Rights" has the meaning set forth in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"ISP98" has the meaning set forth in Section 2.03(h).
"Joinder Agreement" means a joinder agreement substantially in the form
of Exhibit F executed and delivered by a Domestic Subsidiary in accordance with
the provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
All L/C Advances shall be denominated in Dollars.
14
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Base Rate Loans. All L/C Borrowings shall be
denominated in Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the Dollar
Equivalent of the aggregate undrawn amount of all outstanding Letters of Credit
plus the Dollar Equivalent of the aggregate of all Unreimbursed Amounts (to the
extent not refinanced by a borrowing of Base Rate Loans), including all L/C
Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP98, such Letter of
Credit shall be deemed to be "outstanding" in the amount so remaining available
to be drawn.
"Lender" means each Person identified as a "Lender" on the signature
pages hereto and its successors and assigns and, as the context requires,
includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Parent and
the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit. Letters of Credit may be
issued in Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Revolving Commitments and $25,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Lien" means any mortgage, pledge, hypothecation, collateral
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit
Application, each Joinder Agreement, the Collateral Documents, each Request for
Credit Extension, each Compliance Certificate, the Fee Letter and each other
document, instrument or agreement from time to time executed by the Parent or
any Subsidiary or any Responsible Officer thereof and delivered in connection
with this Agreement.
15
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans, (b)
a conversion of Loans from one Type to the other, or (c) a continuation of
Eurocurrency Rate Loans, in each case pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrowers and each Guarantor.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means a material adverse effect on (a) the
condition (financial or otherwise), operations, business, assets, liabilities or
prospects of the Parent and its Subsidiaries taken as a whole that could
reasonably be expected to result in a Default or (b) the ability of the
Administrative Agent and the Lenders to exercise their rights and remedies under
the Loan Documents in the event of a Default.
"Maturity Date" means June 30, 2009.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor there
to.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Parent or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Note" or "Notes" means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party of any proceeding under any Debtor Relief Laws naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding. The foregoing shall also include any Swap
Contract and any Treasury Management Agreement between any Loan Party and any
Lender or Affiliate of a Lender.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to Revolving Loans on any
date, the Dollar Equivalent of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
Revolving Loans occurring on such date; (ii) with respect to Swing Line Loans on
16
any date, the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Swing Line Loans occurring on
such date; and (iii) with respect to any L/C Obligations on any date, the Dollar
Equivalent of the aggregate outstanding amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements by the Parent of Unreimbursed
Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Parent" has the meaning specified in the introductory paragraph
hereto.
"Participant" has the meaning specified in Section 11.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Parent or any
ERISA Affiliate or to which the Parent or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Acquisitions" means any of the following:
(a) the Datel Transaction;
(b) the Dynamo Transaction, provided that:
(i) on or before the consummation thereof, the Administrative
Agent shall have received a copy of the Dynamo Transaction Documents,
together with all amendments, modifications and supplements thereto and
certified by the Parent to be true and complete, all of which shall be
in form and substance reasonably satisfactory to the Administrative
Agent;
(ii) all material governmental, shareholder and third party
consents (including, but not limited to, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance
(to the extent it is required)) and approvals necessary in connection
with the Dynamo Transaction shall have been obtained (or appropriate
waivers obtained); all such consents and approvals shall be in force
and effect; and all applicable waiting periods shall have expired
without any action being taken by any authority that could restrain,
prevent or impose any material adverse conditions on the Dynamo
Transaction or that could seek or threaten any of the foregoing; and
17
(iii) there shall not have occurred a material adverse change
since December 31, 2003 in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of the Dynamo Acquired Business.
(c) Investments consisting of an Acquisition (other than the Datel
Transaction and the Dynamo Transaction) by the Parent or any Subsidiary,
provided that:
(i) the Property acquired (or the Property of the Person
acquired) in such Acquisition is used or useful in the same or a
similar line of business as the Parent and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or
expansions thereof);
(ii) the Administrative Agent shall have received all items in
respect of the Capital Stock or Property acquired in such Acquisition
required to be delivered by the terms of Section 7.12 and/or Section
7.14;
(iii) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition;
(iv) the Parent shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon
giving effect to such Acquisition on a Pro Forma Basis, the Loan
Parties would be in compliance with the financial covenants set forth
in Section 8.11 as of the most recent fiscal quarter for which the
Parent has delivered financial statements pursuant to Section 7.01(a)
or (b);
(v) the representations and warranties made by the Loan
Parties in each Loan Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after
giving effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date;
(vi) if such transaction involves the purchase of an interest
in a partnership between the Parent (or a Subsidiary) as a general
partner and entities unaffiliated with the Parent or such Subsidiary as
the other partners, such transaction shall be effected by having such
equity interest acquired by a corporate holding company directly or
indirectly wholly-owned by the Parent newly formed for the sole purpose
of effecting such transaction;
(vii) the aggregate cash consideration (including any
assumption of Indebtedness) paid by the Parent or any Subsidiary for
any Acquisition (or any series of related Acquisitions) shall not
exceed $25,000,000; and
(viii) the aggregate cash consideration (including any
assumption of Indebtedness) paid by the Parent or any Subsidiary for
all such Acquisitions shall not exceed (A) during the twelve months
immediately following the Closing Date, $5,000,000 and (B) during each
succeeding twelve month period, the sum of $50,000,000 plus the unused
amount available for Acquisitions under this clause (viii) for the
immediately preceding fiscal year (excluding any carry forward
available from any prior fiscal year and provided that with respect to
any fiscal year, Acquisitions made during such fiscal year shall be
deemed to be made first with respect to the applicable limitation for
such fiscal year and then with respect to any carry-forward from the
immediately preceding fiscal year).
18
"Permitted Investments" means, at any time, Investments by the Parent
and its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of
the Parent and its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Parent or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pledge Agreement" means the pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties,
as amended, modified and supplemented from time to time.
"Pro Forma Basis" means, for purposes of calculating the financial
covenants in Section 8.11 (including for purposes of determining the Applicable
Rate), that any Pro Forma Transaction (defined below) shall be deemed to have
occurred as of the first day of the most recent four fiscal quarter period
preceding the date of such Pro Forma Transaction for which the Parent has
delivered financial statements pursuant to Section 7.01(a) or (b). In connection
with the foregoing, (a) with respect to any Disposition or Involuntary
Disposition, income statement and cash flow statement items (whether positive or
negative) attributable to the Property disposed of shall be excluded to the
extent relating to any period occurring prior to the date of such Pro Forma
Transaction and (b) with respect to any Acquisition, income statement items
attributable to the Person or Property acquired shall be included to the extent
relating to any period applicable in such calculations to the extent (i) such
items are not otherwise included in such income statement items for the Parent
and its Subsidiaries in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.1 and (ii) such items are supported by financial
statements or other information reasonably satisfactory to the Administrative
Agent. As used herein, "Pro Forma Transaction" means (i) any Disposition, (ii)
any Involuntary Disposition, (iii) any Acquisition, (iv) any Restricted Payment
and (v) the incurrence of any Subordinated Indebtedness.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Parent containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Parent has delivered financial statements pursuant to
Section 7.01(a) or (b) after giving effect to the applicable transaction on a
Pro Forma Basis.
"Pro Rata Share" means, as to each Lender, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Property" means any interest of any kind in any property or asset,
whether real, personal or mixed, or tangible or intangible.
19
"Quoted Rate" means, with respect to any Quoted Rate Swing Line Loan,
the fixed or floating percentage rate per annum, if any, offered by the Swing
Line Lender and accepted by the Parent in accordance with the provisions hereof;
provided that from the date that any Lender funds a participation interest in
such Quoted Rate Swing Line Loan, the Quoted Rate for such Quoted Rate Swing
Line Loan shall be a rate equal to the Base Rate plus the Applicable Margin.
"Quoted Rate Swing Line Loan" means any Swing Line Loan that bears
interest at the Quoted Rate.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the thirty-day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a) the Revolving Commitments or (b) if the
Revolving Commitments have been terminated, the outstanding Loans, L/C
Obligations, Swing Line Loans and participations therein. The Revolving
Commitment of any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, or treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Capital Stock of the
Parent or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Capital Stock or of any option, warrant or other right to acquire any
such Capital Stock, or any setting aside of funds or Property for any of the
foregoing.
"Revaluation Date" means (a) with respect to any Revolving Loan, each
of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan
denominated in an Alternative Currency, (ii) each date of a continuation of a
Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
Section 2.02, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to any
Letter of Credit, each of the following: (i) each date of issuance of a Letter
of Credit denominated in an Alternative Currency, (ii) each date of an amendment
of any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any payment by
the L/C Issuer under any Letter of Credit denominated in an Alternative
Currency, and (iv) such additional dates as the Administrative Agent or the L/C
Issuer shall determine or the Required Lenders shall require.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrowers pursuant to Section 2.01, (b) purchase
20
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the Dollar amount set forth opposite such Lender's name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to the Parent or
any Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Parent or such Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
"Same Day Funds" means (a) with respect to disbursements and payments
in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
"Screen Rate" means, for any Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
the relevant currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period; or
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Transaction" means any financing transaction or series
of financing transactions (including factoring arrangements) pursuant to which
the Parent or any Subsidiary may sell, convey or otherwise transfer, or grant a
security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose
subsidiary or affiliate of any Person.
21
"Shanghai" means Shanghai C&D Battery Company, LTD, 100, ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"Shanghai Disposition" means any loss of, or any condemnation or other
taking for public use of, the Property currently occupied and owned by Shanghai.
"Special Notice Currency" means at any time an Alternative Currency,
other than the currency of a country that is a member of the Organization for
Economic Cooperation and Development at such time located in North America or
Europe.
"Spot Rate" for a currency means the rate determined by the
Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by
the Person acting in such capacity as the spot rate for the purchase by such
Person of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the date two Business
Days prior to the date as of which the foreign exchange computation is made;
provided that the Administrative Agent or the L/C Issuer may obtain such spot
rate from another financial institution designated by the Administrative Agent
or the L/C Issuer if the Person acting in such capacity does not have as of the
date of determination a spot buying rate for any such currency; and provided
further that the L/C Issuer may use such spot rate quoted on the date as of
which the foreign exchange computation is made in the case of any Letter of
Credit denominated in an Alternative Currency.
"Sterling" and "(pound)" mean the lawful currency of the United
Kingdom.
"Subordinated Indebtedness" means any Indebtedness of the Parent or any
Subsidiary that by its terms is expressly subordinated to the Obligations in a
manner and to an extent satisfactory to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of Voting Stock are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Parent.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
22
determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line
Loans pursuant to Section 2.04(b), which, if in writing, shall be substantially
in the form of Exhibit B.
"Swing Line Note" has the meaning specified in Section 2.11(a).
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 or (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
a balance sheet under GAAP.
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such
payment system ceases to be operative, such other payment system (if any)
determined by the Administrative Agent to be a suitable replacement) is open for
the settlement of payments in Euro.
"Threshold Amount" means $2,500,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount
of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Treasury Management Agreements" means any and all agreements governing
the provision of treasury or cash management services, including, without
limitation, deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.
"Type" means, with respect to any Loan, its character as a Base Rate
Loan or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, all determined using the interest rate applicable
under Internal Revenue Code Section 412(b)(5)(A) and the other assumptions used
for funding that Pension Plan pursuant to Section 412 of the Internal Revenue
Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
23
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock
is at the time owned by the Parent directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Parent.
"Yen" means the lawful currency of Japan.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder"
and words of similar import when used in any Loan Document
shall refer to such Loan Document as a whole and not to any
particular provision thereof.
(ii) Article, Section, Exhibit and Schedule
references are to the Loan Document in which such reference
appears.
(iii) The term "including" is by way of example and
not limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding;"
and the word "through" means "to and including".
(d) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the most recent Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by the Parent in
accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.
24
(b) Together with each Compliance Certificate, the Parent will provide
a written summary of any changes in GAAP that materially impact the calculation
of the financial covenants in Section 8.11 contained in such Compliance
Certificate. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Parent or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Parent shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Parent shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that all calculations of the financial covenants (other than the calculation of
Consolidated Fixed Charges for purposes of the Consolidated Fixed Charges
Coverage Ratio) in Section 8.11 (including for purposes of determining
compliance with such financial covenants and determining the Applicable Rate)
shall be made on a Pro Forma Basis.
1.04 Rounding.
Any financial ratios required to be maintained by the Parent pursuant
to this Agreement shall be calculated by dividing the appropriate component by
the other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent or the L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalents of Credit Extensions and Outstanding Amounts denominated in
Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts
between the applicable currencies until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by Loan Parties hereunder
or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent as so determined by the
Administrative Agent or the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a
25
required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by
the Administrative Agent or the L/C Issuer, as the case may be.
1.07 Additional Alternative Currencies.
(a) The Parent may from time to time request that Eurocurrency Rate
Loans be made and/or Letters of Credit be issued in a currency other than those
specifically listed in the definition of "Alternative Currency"; provided that
such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars. In the
case of any such request with respect to the making of Eurocurrency Rate Loans,
such request shall be subject to the approval of the Administrative Agent and
all of the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not
later than 11:00 a.m., 20 Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the
L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly
notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer
thereof. Each Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of
Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten
Business Days after receipt of such request whether it consents, in its sole
discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters
of Credit, as the case may be, in such requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be, to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender or the L/C Issuer, as
the case may be, to permit Eurocurrency Rate Loans to be made or Letters of
Credit to be issued in such requested currency. If the Administrative Agent and
all the Lenders consent to making Eurocurrency Rate Loans in such requested
currency, the Administrative Agent shall so notify the Parent and the Lenders
and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency
Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the
issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Parent and the Lenders and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall
fail to obtain consent to any request for an additional currency under this
Section 1.05, the Administrative Agent shall promptly so notify the Parent and
the Lenders.
1.08 Change of Currency.
(a) Each obligation of the Borrowers to make a payment denominated in
the national currency unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall be redenominated
into Euro at the time of such adoption (in accordance with the EMU Legislation).
If, in relation to the currency of any such member state, the basis of accrual
of interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
26
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
1.09 Times of Day.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.10 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans.
(a) Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Revolving Loan") to the
Borrowers in Dollars or in one or more Alternative Currencies from time to time
on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Revolving Commitment;
provided, however, that after giving effect to any Borrowing of Revolving Loans,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Revolving Commitment and (iii)
the aggregate Outstanding Amount of all Revolving Loans denominated in
Alternative Currencies shall not exceed the Alternative Currency Sublimit.
Within the limits of each Lender's Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrowers may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein, provided, however, all Borrowings made on the Closing Date shall be made
as Base Rate Loans.
(b) The Parent had a $20 million revolving loan (the "Existing
Revolving Loan") outstanding under the Existing Credit Agreement immediately
27
prior to the Closing Date bearing interest at the "Eurodollar Rate" (as defined
in the Existing Credit Agreement) for an "Interest Period" (as defined in the
Existing Credit Agreement) that expires on July 12, 2004 (the "Existing Interest
Period"). The parties hereto agree that, notwithstanding anything in this
Agreement or any other Loan Document to the contrary, on the Closing Date the
Existing Revolving Loan (i) shall be rolled into, and deemed made under, this
Agreement and (ii) shall continue to bear interest at the rate of interest
applicable under the Existing Credit Agreement immediately prior to the Closing
Date until the expiration of the Existing Interest Period.
(c) The Parent may at any time and from time to time, upon prior
written notice by the Parent to the Administrative Agent, increase the Aggregate
Revolving Commitments by up to TWENTY-FIVE MILLION DOLLARS ($25,000,000) with
additional Revolving Commitments from any existing Lender or new Revolving
Commitments from any other Person selected by the Parent and approved by the
Administrative Agent in its reasonable discretion; provided that:
(A) any such increase shall be in a minimum principal
amount of $5 million and in integral multiples of $5 million
in excess thereof;
(B) no Default shall be continuing at the time of any
such increase;
(C) no existing Lender shall be under any obligation
to increase its Revolving Commitment and any such decision
whether to increase its Revolving Commitment shall be in such
Lender's sole and absolute discretion;
(D) any new Lender shall join this Credit Agreement
by executing such joinder documents reasonably required by the
Administrative Agent; and
(E) the Borrowers will provide such supporting
resolutions, legal opinions and other items as the
Administrative Agent may request in its reasonable discretion.
In connection with any such increase in the Aggregate Revolving
Commitments, Schedule 2.01 shall be revised by the Administrative Agent to
reflect the new Revolving Commitments and distributed to the Lenders.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Revolving Loans from one Type to
the other, and each continuation of Eurocurrency Rate Loans shall be made upon a
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans, (ii) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the requested
date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by a Borrower pursuant to this Section
2.02(b) must be confirmed promptly by delivery to the Administrative Agent of a
written Loan Notice, appropriately completed and signed by a Responsible Officer
of the applicable Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $50,000 in excess thereof. Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $50,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall specify (i) whether the
28
applicable Borrower is requesting a Borrowing, a conversion of Revolving Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Revolving
Loans to be borrowed, converted or continued, (iv) the Type of Revolving Loans
to be borrowed or to which existing Revolving Loans are to be converted, (v) the
currency of the Revolving Loans to be borrowed and (vi) if applicable, the
duration of the Interest Period with respect thereto. If the applicable Borrower
fails to specify a currency in a Loan Notice requesting a Borrowing, then the
Revolving Loans so requested shall be made in Dollars. If the applicable
Borrower fails to specify a Type of Revolving Loan in a Loan Notice or if the
applicable Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Revolving Loans shall be made as, or converted
to, Base Rate Loans; provided, however, that in the case of a failure to timely
request a continuation of Revolving Loans denominated in an Alternative
Currency, such Revolving Loans shall be continued as Eurocurrency Rate Loans in
their original currency with an Interest Period of one month. Any automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurocurrency Rate
Loans. If the applicable Borrower requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. No Revolving Loan may be converted into or continued as a
Revolving Loan denominated in a different currency, but instead must be prepaid
in the original currency of such Revolving Loan and reborrowed in the other
currency.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Pro Rata Share
of the applicable Revolving Loans, and if no timely notice of a conversion or
continuation is provided by the applicable Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans or continuation of Revolving Loans denominated in Alternative Currency, in
each case as described in the preceding subsection. In the case of a Borrowing,
each Lender shall make the amount of its Revolving Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent's Office for
the applicable currency not later than 1:00 p.m., in the case of any Revolving
Loan denominated in Dollars, and not later than the Applicable Time specified by
the Administrative Agent in the case of any Revolving Loan denominated in
Alternative Currency, in each case on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section
5.01), the Administrative Agent shall make all funds so received available to
the applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the applicable Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the applicable Borrower; provided,
however, that if, on the date a Borrowing of Revolving Loans, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, and second, to the
Borrowers as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may
be continued or converted only on the last day of the Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Revolving Loans
may be requested as Eurocurrency Loans denominated in Dollars, and no Revolving
Loans denominated in Dollars may be continued as or converted to Eurocurrency
Rate Loans, in each case without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Parent and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. The determination of the
Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence
29
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Parent and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than ten Interest Periods in effect with respect to
Revolving Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter
of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies for the account of the
Parent or any of its Subsidiaries, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for
the account of the Parent or any of its Subsidiaries; provided that the
L/C Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit, if as of the date of and after
giving effect to such L/C Credit Extension, (x) the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed such Lender's Revolving
Commitment or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and
subject to the terms and conditions hereof, the Parent's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Parent may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to
have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;
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(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
borrowers generally;
(E) except as otherwise agreed by the Administrative
Agent, such Letter of Credit is in an initial amount less than
$50,000 or is to be denominated in a currency other than
Dollars or an Alternative Currency;
(F) the L/C Issuer does not as of the issuance date
of such requested Letter of Credit issue Letters of Credit in
the requested currency; or
(G) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender, in each case unless the L/C Issuer has
entered into satisfactory arrangements with the Parent or such
Lender to eliminate the L/C Issuer's risk with respect to such
Lender.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue or
amend any Letter of Credit if the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, on
or prior to the Business Day prior to the requested date of issuance or
amendment of such Letter of Credit, that one or more applicable
conditions contained in Article V shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Parent delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible
Officer of the Parent. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent (A) not later
than 11:00 a.m. at least two Business Days prior to the proposed
issuance date or date of amendment, as the case may be, and (B) not
later than 11:00 a.m. at least ten Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any Letter
of Credit denominated in an Alternative Currency (or, in each case,
such later date and time as the L/C Issuer and the Administrative Agent
may agree in a particular instance in their sole discretion). In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the identity of the account party
(the Parent or a Subsidiary); (B) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (C) the
amount and currency thereof; (D) the expiry date thereof; (E) the name
and address of the beneficiary thereof; (F) the documents to be
presented by such beneficiary in case of any drawing thereunder; (G)
the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (H) such other matters as the L/C
Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
31
specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Parent and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Parent or the
applicable Subsidiary, as the case may be, enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Pro Rata Share times the amount of such
Letter of Credit.
(iii) If the Parent so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Parent shall not be required
to make a specific request to the L/C Issuer for any such renewal. Once
an Auto-Renewal Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry
date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A)
the L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms
hereof (by reason of the provisions of Section 2.03(a)(ii) or
otherwise), or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is five (5) Business Days before
the Nonrenewal Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such renewal or (2) from
the Administrative Agent, any Lender or the Parent that one or more of
the applicable conditions specified in Section 5.02 is not then
satisfied.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Parent and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of drawing under such Letter of Credit, the L/C Issuer
shall notify the Parent and the Administrative Agent thereof. In the
case of a Letter of Credit denominated in an Alternative Currency, the
Parent shall reimburse the L/C Issuer in such Alternative Currency,
unless (A) the L/C Issuer (at its option) shall have specified in such
notice that it will require reimbursement in Dollars, or (B) in the
32
absence of any such requirement for reimbursement in Dollars, the
Parent shall have notified the L/C Issuer promptly following receipt of
the notice of drawing that the Parent will reimburse the L/C Issuer in
Dollars. In the case of any such reimbursement in Dollars of a drawing
under a Letter of Credit denominated in an Alternative Currency, the
L/C Issuer shall notify the Parent of the Dollar Equivalent of the
amount of the drawing promptly following the determination thereof. Not
later than 12:00 noon on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in Dollars, or the Applicable
Time on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in an Alternative Currency (each such date, an
"Honor Date"), the Parent shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing
and in the applicable currency. If the Parent fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency)
(the "Unreimbursed Amount"), and the amount of such Lender's Pro Rata
Share thereof. In such event, the Parent shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Revolving Commitments and the conditions set
forth in Section 5.02 (other than the delivery of a Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C
Issuer, in Dollars, at the Administrative Agent's Office for
Dollar-denominated payments in an amount equal to the Dollar Equivalent
of its Pro Rata Share of the Unreimbursed Amount not later than 2:00
p.m. on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made
a Base Rate Loan to the Parent in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer in Dollars, or if
requested by the L/C Issuer, the equivalent amount thereof in an
Alternative Currency as determined by the Administrative Agent at such
time on the basis of the Spot Rate (determined as of such funding date)
for the purchase of such Alternative Currency with Dollars.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Base Rate Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any
other reason, the Parent shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the Dollar Equivalent of the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Lender's payment
to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share of such amount shall be solely for the account
of the L/C Issuer.
33
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Parent or any other
Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Revolving Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 5.02 (other
than delivery by the Parent of a Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Parent
to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the Overnight Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Parent or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Pro
Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C
Advance was outstanding) in Dollars and in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in
Section 11.06 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Overnight
Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Parent to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement,
any other Loan Document or any other agreement or instrument relating
thereto;
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(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Parent may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in
the availability of the relevant Alternative Currency to the Parent or
any Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Parent.
The Parent shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Parent's instructions or other irregularity, the Parent
will immediately notify the L/C Issuer. The Parent shall be conclusively deemed
to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Parent agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person or any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Parent hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Parent's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person or any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Parent may have a claim against the L/C Issuer, and the L/C Issuer may be liable
to the Parent, to the extent, but only to the extent, of any direct, as opposed
35
to consequential or exemplary, damages suffered by the Parent which the Parent
proves were caused by the L/C Issuer's willful misconduct or gross negligence or
the L/C Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Parent shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Parent hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash and deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked, interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the
L/C Issuer and the Parent when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Parent shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit in Dollars equal to the
Applicable Rate times the Dollar Equivalent of the daily maximum amount
available to be drawn under such Letter of Credit. Such Letter of Credit fees
shall be computed on a quarterly basis in arrears. Such Letter of Credit fees
shall be due and payable, in Dollars, on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the Dollar Equivalent of the daily maximum
amount of each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Documentary and Processing Charges Payable to L/C Issuer. The
Parent shall pay directly to the L/C Issuer for its own account a fronting fee
with respect to each Letter of Credit in the amounts and at the times specified
in the Fee Letter. In addition, the Parent shall pay directly to the L/C Issuer
for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
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(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Parent in Dollars from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of
such Lender's Revolving Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Parent may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line
Loan shall be a Base Rate Loan or a Quoted Rate Swing Line Loan, as the Parent
may elect. Immediately upon the making of a Swing Line Loan, each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender's Pro Rata Share times the amount of
such Swing Line Loan.
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be
made in Dollars upon the Parent's irrevocable notice to the Swing Line Lender
and the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Swing Line Lender and the Administrative Agent not later
than 1:00 p.m. on the requested date of borrowing and shall specify (i) the
amount to be borrowed, which shall be a minimum principal amount of $50,000, or
a whole multiple of $50,000 in excess thereof, (ii) the requested borrowing
date, which shall be a Business Day, and (iii) whether such Swing Line Loan
shall be a Base Rate Loan or Quoted Rate Swing Line Loan. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Parent. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Article V is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Parent.
Notwithstanding the foregoing, however, in the event that an "auto borrow" or
"zero balance" or similar arrangement shall then be in place with the Swing Line
Lender, the Parent shall request Swing Line Loans pursuant to such alternative
notice arrangements, if any, provided thereunder or in connection therewith, and
each Swing Line Loan advance shall be in such minimum amounts, if any, provided
by such arrangement.
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(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Parent (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender's Pro Rata Share of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section 5.02. The
Swing Line Lender shall furnish the Parent with a copy of the
applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Swing
Line Lender at the Administrative Agent's Office for Dollar-denominated
payments not later than 1:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to
the Parent in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Borrowing of Revolving Loans in accordance with
Section 2.04(c)(i), the request for Base Rate Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's payment
to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of
such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the Overnight
Rate from time to time in effect. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Parent or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender's
obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02. No such purchase
or funding of risk participations shall relieve or otherwise impair the
obligation of the Parent to repay Swing Line Loans, together with
interest as provided herein.
(d) Repayment of Participations.
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(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 11.06 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum
equal to the Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Parent for interest on the Swing Line
Loans. Until each Lender funds its Revolving Loans that are Base Rate Loans or
risk participation pursuant to this Section 2.04 to refinance such Lender's Pro
Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Parent shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans. The Borrowers may, upon notice from the
Parent to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans in whole or in part without premium
or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (x) three Business Days
prior to any date of prepayment of Eurocurrency Rate Loans denominated
in Dollars, (y) four Business Days (or five in the case of prepayment
of Revolving Loans denominated in Special Notice Currencies) prior to
any date of prepayment, in the case of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (z) on the date of
prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency
Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $50,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding); and (C) any such prepayment
of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $50,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans
to be prepaid and, if Eurocurrency Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Parent, the Borrowers shall make such prepayment
and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05.
Each such prepayment shall be applied to the Loans of the Lenders in
accordance with their respective Pro Rata Shares.
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(ii) Swing Line Loans. The Parent may, upon notice to the
Swing Line Lender (with a copy to the Administrative Agent), at any
time or from time to time, voluntarily prepay Swing Line Loans in whole
or in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of $50,000 or a
whole multiple of $50,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment. If such notice is given
by the Parent, the Parent shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein. Notwithstanding the foregoing, however, in the event
that an "auto borrow" or "zero balance" or similar arrangement shall
then be in place with the Swing Line Lender, the Parent may make
voluntary prepayments on Swing Line Loans pursuant to such alternative
notice arrangements and in such minimum amounts, if any, provided
thereunder or in connection therewith.
(b) Mandatory Prepayments of Loans. If for any reason the Total
Revolving Outstandings at any time exceed the Aggregate Revolving Commitments
then in effect, then the Borrowers shall immediately prepay Revolving Loans
and/or the Parent shall immediately prepay the Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Parent shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(b) unless after the prepayment
in full of the Revolving Loans and Swing Line Loans the Total Revolving
Outstandings exceed the Aggregate Revolving Commitments then in effect.
2.06 Termination or Reduction of Aggregate Revolving Commitments.
The Parent may, upon notice from the Parent to the Administrative
Agent, terminate the Aggregate Revolving Commitments or from time to time
permanently reduce the Aggregate Revolving Commitments to an amount not less
than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction and (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments. Any
reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Pro Rata Share. All
commitment fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans.
(a) The Borrowers shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Revolving Loans outstanding on such date.
(b) The Parent shall repay each Swing Line Loan on the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Revolving Loan that is a Eurocurrency Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of (A) the Eurocurrency Rate for such Interest Period
plus (B) the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of
any Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost; (ii) each Revolving Loan that is
40
a Base Rate Loan bear interest on the outstanding principal amount thereof from
the applicable borrowing or conversion date at a rate per annum equal to the
Base Rate plus the Applicable Rate; (iii) each Swing Line Loan that is a Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; and (iv) each Swing Line Loan that is a Quoted Rate Swing
Line Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Quoted Rate
applicable thereto.
(b) Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein, provided that interest at the Default Rate shall be payable on
demand. Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), (i) whenever a rate
of interest or fee rate hereunder is calculated on the basis of a year (the
"deemed year") that contains fewer days than the actual number of days in the
calendar year of calculation, such rate of interest or fee rate shall be
expressed as a yearly rate by multiplying such rate of interest or fee rate by
the actual number of days in the calendar year of calculation and dividing it by
the number of days in the deemed year, (ii) the principle of deemed reinvestment
of interest shall not apply to any interest calculation hereunder and (iii) the
rates of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.
2.09 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Parent shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Pro Rata
Share, a commitment fee, in Dollars, equal to the product of (i) the
Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of
the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur
after the Closing Date, and on the Maturity Date. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect. For
purposes of clarification, Swing Line Loans shall not be considered
outstanding for purposes of determining the unused portion of the
Aggregate Revolving Commitments.
(b) Other Fees.
(i) The Parent shall pay to the Arranger and the
Administrative Agent for their own respective accounts, in
Dollars, fees in the amounts and at the times specified in the
Fee Letter. Such fees shall be fully earned when paid and
shall be non-refundable for any reason whatsoever.
41
(ii) The Parent shall pay to the Lenders, in Dollars,
such fees as shall have been separately agreed upon in writing
in the amounts and at the times so specified. Such fees shall
be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.10 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or, in the case of
interest in respect of Revolving Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such
market practice. Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrowers, in the case of
Revolving Loans, and the Parent, in the case of Swing Line Loans, shall execute
and deliver to such Lender (through the Administrative Agent) a promissory note,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each such promissory note shall (i) in the case of Revolving Loans, be
in the form of Exhibit C-1 (a "Revolving Note"), and (ii) in the case of Swing
Line Loans, be in the form of Exhibit C-2 (a "Swing Line Note"). Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 Payments Generally.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, and except with respect to
principal of and interest on Revolving Loans denominated in an Alternative
Currency, all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent's Office in Dollars and
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in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except
as otherwise expressly provided herein, all payments by the Borrowers hereunder
with respect to principal and interest on Revolving Loans denominated in an
Alternative Currency shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the Administrative Agent on the
dates specified herein. Without limiting the generality of the foregoing, the
Administrative Agent may require that any payments due under this Agreement be
made in the United States. If, for any reason, any Borrower is prohibited by any
Law from making any required payment hereunder in an Alternative Currency, such
Borrower shall make such payment in Dollars in the Dollar Equivalent of the
Alternative Currency payment amount. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender's Lending Office. All payments received by the Administrative Agent
(i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in
an Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the definition of "Interest Period", if any payment to
be made by a Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, ratably among
the parties entitled thereto in accordance with the amounts of costs and
expenses then due such parties, (ii) second, toward repayment of interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due such parties, and
(iii) third, toward repayment of principal and L/C Borrowings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due such parties.
(d) Unless the Borrowers or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrowers or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrowers or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in Same Day Funds,
then:
(i) if the Borrowers failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in Same
Day Funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid
to the Administrative Agent in Same Day Funds at the Overnight Rate
from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in Same Day Funds, together with interest thereon for the
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period from the date such amount was made available by the
Administrative Agent to the applicable Borrower to the date such amount
is recovered by the Administrative Agent (the "Compensation Period") at
a rate per annum equal to the Overnight Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing as of the date of such Borrowing. If such Lender
does not pay such amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent may make a demand therefor
upon the Borrowers, and the Borrowers shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Revolving
Commitment or to prejudice any rights which the Administrative Agent or
the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrowers
with respect to any amount owing under this subsection (d) shall be conclusive,
absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the applicable
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article V are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it (but not including any amounts
applied by the Swing Line Lender to outstanding Swing Line Loans), any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them and/or such subparticipations in the participations in
L/C Obligations or Swing Line Loans held by them, as the case may be, as shall
be necessary to cause such purchasing Lender to share the excess payment in
respect of such Loans or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without
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further interest thereon. The Borrowers agree that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
2.14 Joint and Several Liability.
(a) Each Borrower accepts joint and several liability hereunder in
consideration of the financial accommodation to be provided by the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents, for the mutual benefit, directly and indirectly, of each Borrower and
in consideration of the undertakings of each Borrower to accept joint and
several liability for the obligations of each Borrower.
(b) Each Borrower shall be jointly and severally liable for all
Obligations, regardless of which Borrower actually receives Credit Extensions
hereunder or the amount of such Credit Extensions received or the manner in
which the Administrative Agent or any Lender accounts for such Credit Extensions
on its books and records. Each Borrower's obligations with respect to Credit
Extensions made to it, and each Borrower's obligations arising as a result of
the joint and several liability of such Borrower hereunder, with respect to
Credit Extensions made to and other Obligations owing by each other Borrower
hereunder, shall be separate and distinct obligations, but all such obligations
shall be primary obligations of each Borrower.
(c) Each Borrower's obligations arising as a result of the joint and
several liability of such Borrower hereunder with respect to Credit Extensions
made to and other Obligations owing by each other Borrower hereunder shall, to
the fullest extent permitted by law, be unconditional irrespective of (i) the
validity or enforceability, avoidance or subordination of the obligations of any
other Borrower or of any promissory note or other document evidencing all or any
part of the obligations of any other Borrower, (ii) the absence of any attempt
to collect the Obligations from any other Borrower, any other guarantor, or any
other security therefor, or the absence of any other action to enforce the same,
(iii) the waiver, consent, extension, forbearance or granting of any indulgence
by the Administrative Agent or any Lender with respect to any provision of any
instrument evidencing the obligations of any other Borrower, or any part
thereof, or any other agreement now or hereafter executed by any other Borrower
and delivered to the Administrative Agent or any Lender, (iv) the failure by the
Administrative Agent or any Lender to take any steps to perfect and maintain its
security interest in, or to preserve its rights to, any security or collateral
for the obligations of any other Borrower, (v) the Administrative Agent's or any
Lender's election, in any proceeding instituted under the Bankruptcy Code, of
the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing
or grant of a security interest by any other Borrower, as Debtor In Possession
under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any
portion of the Administrative Agent's or any Lender's claim(s) for the repayment
of the obligations of any other Borrower under Section 502 of the Bankruptcy
Code, or (viii) any other circumstances which might constitute a legal or
equitable discharge or defense of a guarantor or of any other Borrower. With
respect to each Borrower's obligations arising as a result of the joint and
several liability of such Borrower hereunder with respect to Credit Extensions
made to each other Borrower hereunder, such Borrower waives, until the
Obligations shall have been paid in full and this Agreement and the other Loan
45
Documents shall have been terminated, any right to enforce any right of
subrogation or any remedy which the Administrative Agent or any Lender now has
or may hereafter have against any other Borrower, any endorser or any guarantor
of all or any part of the Obligations, and any benefit of, and any right to
participate in, any security or collateral given to the Administrative Agent or
any Lender to secure payment of the Obligations or any other liability of any
Borrower to the Administrative Agent or any Lender.
(d) Upon the occurrence and during the continuation of any Event of
Default, the Administrative Agent and the Lenders may proceed directly and at
once, without notice, against any Borrower to collect and recover the full
amount, or any portion, of the Obligations, without first proceeding against any
other Borrower or any other Person, or against any security or collateral for
the Obligations. Each Borrower consents and agrees that the Administrative Agent
and the Lenders shall be under no obligation to marshal any assets in favor of
any Borrower or against or in payment of any or all of the Obligations.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Loan Party to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If any Loan Party
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions, (iii) such Loan Party
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within thirty days after
the date of such payment, such Loan Party shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof or if no receipt is available,
other evidence of payment reasonably satisfactory to the Administrative Agent.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If any of the Borrowers shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, the Borrowers shall also pay
to the Administrative Agent or to such Lender, as the case may be, at the time
46
interest is paid, such additional amount that the Administrative Agent or such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrowers agree to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within thirty days after the date the
Lender or the Administrative Agent makes a demand therefor.
(e) If any Loan Party is required to pay any amount to any Lender or
the Administrative Agent pursuant to this Section 3.01, then such Lender shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment which may thereafter accrue, if such change in the reasonable
judgment of such Lender is not otherwise disadvantageous to such Lender.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans
(whether denominated in Dollars or an Alternative Currency), or to determine or
charge interest rates based upon the Eurocurrency Rate, then, on notice thereof
by such Lender to the Borrowers through the Administrative Agent, any obligation
of such Lender to make or continue Eurocurrency Rate Loans in the affected
currency or currencies or to convert Base Rate Loans to Eurocurrency Rate Loans
in the affected currency or currencies shall be suspended until such Lender
notifies the Administrative Agent and the Borrowers that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans are denominated
in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such conversion, the Borrowers shall also pay
accrued interest on the amount so converted and all amounts payable pursuant to
Section 3.05. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Administrative Agent determines that for any reason adequate and
reasonable means do not exist for determining the Eurocurrency Base Rate
(whether denominated in Dollars or an Alternative Currency) for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan, or that the
Eurocurrency Base Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost
to the Lenders of funding such Loan, the Administrative Agent will promptly
notify the Borrowers and all Lenders. Thereafter, the obligation of the Lenders
to make or maintain Eurocurrency Rate Loans in the affected currency or
currencies shall be suspended until the Administrative Agent revokes such
notice. Upon receipt of such notice, the Borrowers may revoke any pending
47
request for a Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans in the affected currency or currencies or, failing that, will be deemed to
have converted such request into a request for a Borrowing of Base Rate Loans in
the amount specified therein, and all outstanding Eurocurrency Rate Loans will,
as of the last day of each Interest Period applicable thereto, be converted to
Base Rate Loans.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, (i) there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurocurrency Rate Loans
(whether denominated in Dollars or Alternative Currency) or (as the case may be)
issuing or participating in Letters of Credit (whether denominated in Dollars or
Alternative Currency), or (ii) the Mandatory Cost, as calculated hereunder, does
not represent the cost to any Lender of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European Central
Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans,
or (iii) a reduction in the amount received or receivable by such Lender in
connection with any of the foregoing (excluding for purposes of this subsection
(a) any such increased costs or reduction in amount resulting from (x) Taxes or
Other Taxes (as to which Section 3.01 shall govern), (y) changes in the basis of
taxation of the overall net income or overall gross income by the United States
or any foreign jurisdiction or any political subdivision of either thereof under
the Laws of which such Lender is organized or has its Lending Office, and (z)
reserve requirements utilized, as to Eurocurrency Rate Loans, in the
determination of the Eurocurrency Rate), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrowers shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law regarding capital adequacy, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's or such corporation's desired
return on capital), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrowers shall pay to
such Lender such additional amounts as will compensate such Lender or such
corporation for such reduction.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrowers shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a prepayment or borrowing of, or conversion
to, a Base Rate Loan on the date or in the amount notified by such
Borrower;
48
(c) any failure by any Borrower to make payment of any Loan or
drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any
payment thereof in a different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other
than the last day of the Interest Period therefor as a result of a
request by the Parent pursuant to Section 11.16;
including any loss of anticipated profits, any foreign exchange losses
and any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained or from the
performance of any foreign exchange contract. The Borrowers shall also
pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the offshore interbank market for such currency for a comparable
amount and for a comparable period, whether or not such Eurocurrency Rate Loan
was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04, the Parent may replace such Lender in accordance with Section
11.16.
3.07 Survival.
All of the Borrowers' obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all
Obligations.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract or Treasury
Management Agreement, and the Administrative Agent as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if
any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
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Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents, Swap Contracts or Treasury Management
Agreements, the obligations of each Guarantor under this Agreement and the other
Loan Documents shall be limited to an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under the
Debtor Relief Laws or any comparable provisions of any applicable state law.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute, irrevocable and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan
Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of the Guarantors
hereunder shall be absolute, irrevocable and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrowers or
any other Guarantor for amounts paid under this Article IV until such time as
the Obligations have been paid in full and the Aggregate Revolving Commitments
have expired or terminated. Without limiting the generality of the foregoing, it
is agreed that, to the fullest extent permitted by law, the occurrence of any
one or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain absolute, irrevocable and unconditional
as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Loan Documents, any Swap Contract or Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a
Lender, or any other agreement or instrument referred to in the Loan
Documents or such Swap Contracts or Treasury Management Agreements
shall be done or omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations or any of the Loan Documents or
any Swap Contract or Treasury Management Agreement between any Loan
Party and any Lender or any Affiliate of a Lender shall be modified,
supplemented or amended in any respect, or any right under any of the
Loan Documents, any Swap Contract or Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender, or
any other agreement or instrument referred to in the Loan Documents or
such Swap Contracts or Treasury Management Agreements shall be waived
or any other guarantee of any of the Obligations or any security
therefor shall be released, impaired or exchanged in whole or in part
or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative
Agent or any Lender or Lenders as security for any of the Obligations
shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
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With respect to its obligations hereunder, each Guarantor hereby
expressly waives acceptance, diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Administrative Agent or
any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract or Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Loan Documents or such
Swap Contracts or Treasury Management Agreements, or against any other Person
under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the Commitments
have terminated.
4.07 Guarantee of Payment; Continuing Guarantee.
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The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of
executed counterparts of this Agreement and the other Loan Documents,
each properly executed by a Responsible Officer of the signing Loan
Party and, in the case of this Agreement, by each Lender.
(b) Datel Transaction Documents. The Administrative Agent
shall have received a copy of the Datel Transaction Documents, in each
case together with all amendments, modifications and supplemented
thereto and certified by the Parent to be true and complete, all of
which shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(c) Consummation of Datel Transaction. The Administrative
Agent shall have received reasonably satisfactory evidence that the
Datel Transaction shall have been consummated (or contemporaneous with
the advances of the initial Loans hereunder will be consummated)
substantially in accordance with the terms of the Datel Transaction
Documents and substantially in compliance with applicable law and
regulatory approvals.
(d) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals
or facsimiles (followed promptly by originals) and in form and
substance satisfactory to the Administrative Agent and its legal
counsel:
(i) copies of the Organization Documents of each Loan
Party certified to be true and complete as of a recent date by
the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant
secretary of such Loan Party to be true and correct as of the
Closing Date;
(ii) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as the Administrative
Agent may require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act
as a Responsible Officer in connection with this Agreement and
the other Loan Documents to which such Loan Party is a party;
and
(iii) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business
in its state of organization or formation, except to the
extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
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(e) Opinion of Counsel. Receipt by the Administrative Agent of
favorable opinions of counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, dated as of the Closing Date, and
in form and substance satisfactory to the Administrative Agent.
(f) Perfection and Priority of Liens. Receipt by the
Administrative Agent of all certificates evidencing any certificated
Capital Stock pledged to the Administrative Agent pursuant to the
Pledge Agreement, together with duly executed in blank, undated stock
powers attached thereto.
(g) Financial Statements. The Administrative Agent shall have
received:
(i) the Audited Financial Statements;
(ii) the Interim Financial Statements; and
(iii) such other information as the Administrative
Agent may reasonably request.
(h) No Material Adverse Change.
(i) There shall not have occurred a material adverse
change since January 31, 2004 in the business, assets,
liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole; and
(ii) There shall not have occurred a material adverse
change since August 31, 2003 in the business, assets,
liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of Datel.
(i) Consents. All material governmental, shareholder and third
party consents (including, but not limited to, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
clearance) and approvals necessary in connection with the Datel
Transaction and the other transactions contemplated hereby shall have
been obtained (or appropriate waivers obtained); all such consents and
approvals shall be in force and effect; and all applicable waiting
periods shall have expired without any action being taken by any
authority that could restrain, prevent or impose any material adverse
conditions on the Datel Transaction or such other transactions or that
could seek or threaten any of the foregoing, and no law or regulation
shall be applicable which in the reasonable judgment of the
Administrative Agent could have such effect.
(j) Judgments; Litigation. There shall not exist (a) any
order, decree, judgment, ruling or injunction which restrains the
consummation of the Datel Transaction in the manner contemplated by the
Datel Transaction Documents or (b) any pending or threatened action,
suit, investigation or proceeding which is reasonably likely to be
adversely determined and, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(k) Closing Certificate. Receipt by the Administrative Agent
of a certificate signed by a Responsible Officer of the Parent
certifying that the conditions specified in Sections 5.01(c), (h), (i)
and (j) and Sections 5.02(a), (b) and (c) have been satisfied.
(l) Fees. Receipt by the Administrative Agent and the Lenders
of any fees required to be paid on or before the Closing Date.
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(m) Attorney Costs. Unless waived by the Administrative Agent,
the Parent shall have paid all Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrowers and the
Administrative Agent).
5.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension
(other than a request for (a) the conversion of a Eurocurrency Loan denominated
in Dollars to a Base Rate Loan and (b) the continuation of a Eurocurrency Rate
Loan denominated in Alternative Currency for an Interest Period of one month) is
subject to the following conditions precedent:
(a) The representations and warranties of each Loan Party
contained in Article VI or any other Loan Document, or which are
contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 5.02,
the representations and warranties contained in subsections (a) and (b)
of Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section
7.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) There shall not have been commenced against the Parent or
any Subsidiary an involuntary case under any applicable Debtor Relief
Law, now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.
(e) In the case of a Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in
national or international financial, political or economic conditions
or currency exchange rates or exchange controls which in the reasonable
opinion of the Administrative Agent, the Required Lenders (in the case
of any Loans to be denominated in an Alternative Currency) or the L/C
Issuer (in the case of any Letter of Credit to be denominated in an
Alternative Currency) would make it impracticable for such Credit
Extension to be denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than a request for (a) the
conversion of a Eurocurrency Loan denominated in Dollars to a Base Rate Loan and
(b) the continuation of a Eurocurrency Rate Loan denominated in Alternative
Currency for an Interest Period of one month) submitted by the applicable
Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 5.02(a), (b) and (c) have been satisfied on and as of the
date of the applicable Credit Extension.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that:
6.01 Existence, Qualification and Power.
Each Loan Party (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Person's Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under, (i)
any Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its Property is subject; or (c) violate any Law
(including, without limitation, Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral
Documents.
6.04 Binding Effect.
Each of this Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is party thereto. Each of this
Agreement and each other Loan Document constitutes a legal, valid and binding
obligation of each Loan Party that is party thereto, enforceable against each
such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable Debtor Relief Laws or by equitable principles relating to
enforceability.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Parent and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Parent and its
55
Subsidiaries as of the date thereof, including liabilities for taxes,
commitments and Indebtedness.
(b) The Interim Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Parent and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Parent and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(c) From January 31, 2003 to and including the Closing Date, there has
been no Disposition by the Parent or any Subsidiary, or any Involuntary
Disposition (other than the Shanghai Disposition), of any material part of the
business or Property of the Parent and its Subsidiaries, taken as a whole, and
no purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Parent and its Subsidiaries, taken as a
whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and
(b) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a) and (b)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) in all material
respects the consolidated financial condition, results of operations and cash
flows of the Parent and its Subsidiaries as of the dates thereof and for the
periods covered thereby.
(e) Since January 31, 2003 there has been no event or circumstance that
has had or could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Parent or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document or (b) is reasonably likely
to be determined adversely and, if determined adversely, could reasonably be
expected to have a Material Adverse Effect.
6.07 No Default.
(a) Neither the Parent nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each of the Parent and its Subsidiaries has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Property of the Parent and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
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6.09 Environmental Compliance.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Facilities and all operations at the
Facilities are in compliance with all applicable Environmental Laws,
and there is no violation of any Environmental Law with respect to the
Facilities or the Businesses, and there are no conditions relating to
the Facilities or the Businesses that could give rise to liability
under any applicable Environmental Laws.
(b) None of the Facilities contains, or has previously
contained, any Hazardous Materials at, on or under the Facilities in
amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.
(c) Neither the Parent nor any Subsidiary has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Facilities or the
Businesses, nor does any Responsible Officer of any Loan Party have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) Hazardous Materials have not been transported or disposed
of from the Facilities, or generated, treated, stored or disposed of
at, on or under any of the Facilities or any other location, in each
case by or on behalf the Parent or any Subsidiary in violation of, or
in a manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Responsible Officers of
the Loan Parties, threatened, under any Environmental Law to which the
Parent or any Subsidiary is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
the Parent, any Subsidiary, the Facilities or the Businesses.
(f) There has been no release or threat of release of
Hazardous Materials at or from the Facilities, or arising from or
related to the operations (including, without limitation, disposal) of
the Parent or any Subsidiary in connection with the Facilities or
otherwise in connection with the Businesses, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
6.10 Insurance.
The properties of the Parent and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Parent, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Parent or the applicable Subsidiary
operates.
6.11 Taxes.
The Parent and its Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
57
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Parent or any Subsidiary that would, if made, have a
Material Adverse Effect.
6.12 ERISA Compliance.
(a) Except as could not reasonably be expected to have a Material
Adverse Effect, (i) each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws and (ii) each Plan that is intended to qualify under Section 401(a)
of the Internal Revenue Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Loan Parties, nothing
has occurred which would prevent, or cause the loss of, such qualification. Each
Loan Party and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Internal Revenue Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section
412 of the Internal Revenue Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur
which would lead to liability in excess of the Threshold Amount; (ii) the
aggregate Unfunded Pension Liability for all Pension Plans is less than the
Threshold Amount; (iii) no Loan Party or any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) no Loan Party or any ERISA Affiliate has incurred,
or reasonably expects to incur, any material liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) no Loan Party or any ERISA Affiliate has engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary, together with the percentage of outstanding
shares of each class owned (directly or indirectly) by the Parent or any
Subsidiary. The outstanding Capital Stock of each Subsidiary is validly issued,
fully paid and non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) No Borrower is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b) None of the transactions contemplated by this Agreement (including,
without limitation, the Letters of Credit and the direct or indirect use of the
58
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933 or the Securities Exchange Act of 1934 or regulations issued
pursuant thereto, or Regulation T, U or X of the FRB. If requested by any Lender
or the Administrative Agent, the Borrowers will furnish to the Administrative
Agent and each Lender a statement to the effect of the foregoing sentences in
conformity with the requirements of FR Form U-1 referred to in Regulation U of
the FRB.
(c) None of the Parent, any Person Controlling the Parent or any
Subsidiary (i) is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
6.15 Disclosure.
No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
6.16 Compliance with Laws.
Each of the Parent and each Subsidiary is in compliance with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
6.17 Intellectual Property; Licenses, Etc.
The Parent and its Subsidiaries own, or possess the legal right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses. Except for such claims and infringements that could
not reasonably be expected to have a Material Adverse Effect, no claim has been
asserted and is pending by any Person challenging or questioning the use of any
IP Rights or the validity or effectiveness of any IP Rights, nor does any Loan
Party know of any such claim. Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, to the
knowledge of the Responsible Officers of the Loan Parties, (i) the use of any IP
Rights by the Parent or any Subsidiary or the granting of a right or a license
in respect of any IP Rights from the Parent or any Subsidiary does not infringe
on the rights of any Person and (ii) there is no infringement on the IP Rights
of the Parent or any Subsidiary.
6.18 Broker's Fees.
Neither the Parent nor any Subsidiary has any obligation to any Person
in respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.
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6.19 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Parent or any Subsidiary as of the Closing Date
and neither the Parent nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, the Loan Parties shall and shall
cause each Subsidiary to:
7.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety-five
(95) days after the end of each fiscal year of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of
income or operations, retained earnings, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative
form the figures as of the end of and for the previous fiscal year, all
in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of PricewaterhouseCoopers or other
independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as to
the scope of such audit; and
(b) as soon as available, but in any event within fifty (50)
days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent, a consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, retained
earnings, shareholders' equity and cash flows for such fiscal quarter
and for the portion of the Parent's fiscal year then ended, setting
forth in each case in comparative form the figures as of the end of and
for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by a Responsible Officer of the Parent
as fairly presenting in all material respects the financial condition,
results of operations, shareholders' equity and cash flows of the
Parent and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to
Section 7.02(d), the Parent shall not be separately required to furnish
such information under clause (a) or (b) above, but the foregoing shall
not be in derogation of the obligation of the Parent to furnish the
information and materials described in subsections (a) and (b) above at
the times specified therein.
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7.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent
certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge
was obtained of any Default under any of the financial covenants
contained in Section 8.11 or, if any such Default shall exist, stating
the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Parent;
(c) within forty-five (45) days after the end of each fiscal
year, the annual business plan and budget of the Parent and its
Subsidiaries containing, among other things, projected financial
statements for each quarter of the next fiscal year;
(d) copies of any final (as distinguished from a preliminary
or discussion draft) detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Parent by independent
accountants in connection with the accounts or books of the Parent or
any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Parent, and copies of all
annual, regular, periodic and special reports and registration
statements which the Parent may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or
to a holder of any Indebtedness owed by the Parent or any Subsidiary in
its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Parent or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 7.01(a) or (b)
or Section 7.02(f) may (to the extent any such documents are included in
materials otherwise filed with the SEC) be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Parent posts such documents, or provides a link thereto on the Parent's website
on the Internet at the website address listed on Schedule 11.02; or (ii) on
which such documents are posted on the Parent's behalf on IntraLinks/IntraAgency
or another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Parent shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Parent to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Parent shall notify (which may be by facsimile or electronic
mail) the Administrative Agent and each Lender of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
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contained herein, in every instance the Parent shall be required to provide
paper copies of the Compliance Certificates required by Section 7.02(b) to the
Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Parent with any
such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
7.03 Notices.
(a) Promptly (and in any event within two Business Days) notify the
Administrative Agent and each Lender of the occurrence of any Default.
(b) Promptly notify the Administrative Agent and each Lender of the
commencement of, or any material development in, any litigation or proceeding
affecting the Parent or any Subsidiary, including pursuant to any applicable
Environmental Laws, if either (i) the claim in such litigation or proceeding
requests damages or other amounts in excess of $5,000,000 (to the extent not
covered by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover) or (i) such litigation or
proceeding, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) Promptly notify the Administrative Agent and each Lender of any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including to the same extent the following has resulted or could
reasonably be expected to result in a Material Adverse Effect: (i) breach or
non-performance of, or any default under, a Contractual Obligation of the Parent
or any Subsidiary; or (ii) any dispute, litigation, investigation, proceeding or
suspension between the Parent or any Subsidiary and any Governmental Authority.
(d) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event which would lead to liability in excess of the
Threshold Amount.
(e) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by the
Parent or any Subsidiary.
(f) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, furnish or cause
to be furnished to the Administrative Agent, at the Loan Parties' expense, a
report of an environmental assessment of reasonable scope, form and depth,
(including, where appropriate, invasive soil or groundwater sampling) by a
consultant reasonably acceptable to the Administrative Agent as to the nature
and extent of the presence of any Materials of Environmental Concern on any
Facilities and as to the compliance by the Parent or any of its Subsidiaries
with Environmental Laws at such Facilities. If the Loan Parties fail to deliver
such an environmental report within seventy-five (75) days after receipt of such
written request then the Administrative Agent may arrange for the same, and the
Loan Parties hereby grant to the Administrative Agent and its representatives
access to the Facilities to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost
of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the
obligations secured by the Collateral Documents.
Each notice pursuant to this Section 7.03 shall be accompanied by a
statement of a Responsible Officer of the Parent setting forth details of the
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occurrence referred to therein and stating what action the Parent has taken and
proposes to take with respect thereto. Each notice pursuant to Section 7.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
7.04 Payment of Obligations.
Pay and discharge, as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Parent or such Subsidiary; and (b) all lawful claims which, if unpaid, would
by law become a Lien upon its Property unless the same are being contested in
good faith by appropriate proceedings diligently conducted and adequate reserves
in accordance with GAAP are being maintained by the Parent or such Subsidiary.
7.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and effect its good
standing under the Laws of the jurisdiction of its organization, except to the
extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(c) Take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(d) Preserve or renew all of its material registered patents,
copyrights, trademarks, trade names and service marks, except to the extent the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted.
(b) Make all necessary repairs thereto and renewals and replacements
thereof, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(c) Use the standard of care typical in the industry in the operation
and maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
not Affiliates of the Parent, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Parent or the
applicable Subsidiary operates.
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7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or Property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made
of all financial transactions and matters involving the assets and business of
the Parent or such Subsidiary, as the case may be.
(b) Maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Parent or such Subsidiary, as the case may be.
7.10 Inspection Rights.
Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties,
to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Lenders and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Parent; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Parent at any time during normal business hours and upon
reasonable advance notice to the Parent.
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions (a) to finance working
capital, capital expenditures and other general corporate purposes, (b) to
refinance Indebtedness of the Parent and its Subsidiaries under the Existing
Credit Agreement and (c) to finance the cash portion of the purchase price of
the Datel Transaction and the Dynamo Transaction, provided that in no event
shall any of the proceeds of the Credit Extensions be used in contravention of
any Law or of any Loan Document.
7.12 Additional Subsidiaries.
Within thirty (30) days after the acquisition or formation of any
Subsidiary:
(a) notify the Administrative Agent thereof in writing,
together with the (i) jurisdiction of formation, (ii) number of shares
of each class of Capital Stock outstanding, (iii) number and percentage
of outstanding shares of each class owned (directly or indirectly) by
the Parent or any Subsidiary and (iv) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase
and all other similar rights with respect thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause such
Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, and (ii)
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deliver to the Administrative Agent documents of the types referred to
in Sections 5.01(d) and (f) and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.
7.13 ERISA Compliance.
Do, and cause each of its ERISA Affiliates to do, each of the
following: (a) maintain each Plan in compliance in all material respects with
the applicable provisions of ERISA, the Internal Revenue Code and other federal
or state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.
7.14 Pledged Assets.
(a) Cause the following to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent, for the benefit of itself
and the Lenders, pursuant to the terms and conditions of the Collateral
Documents or such other security documents as the Administrative Agent shall
reasonably request: (i) 100% of the issued and outstanding Capital Stock of each
Domestic Subsidiary (other than any Immaterial Domestic Subsidiary); (ii) shares
of Capital Stock representing 65% of the total combined voting power of all
classes of Capital Stock entitled to vote of each Foreign Subsidiary (other than
any Immaterial Foreign Subsidiary) directly owned by any Loan Party (or such
greater percentage if, due to a change in an applicable Law after the date
hereof, the greater percentage could not reasonably be expected to cause either
(A) an inclusion in the gross income of any Loan Party under Internal Revenue
Code Section 951(a)(1)(B) or (B) any other material adverse tax consequence to
the Loan Parties or a Foreign Subsidiary); and (iii) 100% of all issued and
outstanding shares of Capital Stock of any class of stock that is not entitled
to vote (within the meaning of U.S. Treasury Regulation Section 1.956-2(c)(2))
of each Foreign Subsidiary (other than any Immaterial Foreign Subsidiary)
directly owned by any Loan Party.
(b) If requested by the Administrative Agent in connection with the
pledge of the Capital Stock of any Foreign Subsidiary pursuant to clause (a)
above, promptly (and in the case of any Capital Stock pledged on the Closing
Date, within sixty (60) days after the Closing Date or such later date as agreed
to by the Administrative Agent) deliver to the Administrative Agent documents of
the types referred to in Sections 5.01(d) and (f) and favorable opinions of
counsel to such Foreign Subsidiary, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it
permit any Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
Property (other than any "margin stock" within the meaning of Regulation U),
whether now owned or hereafter acquired, other than the following:
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(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
8.01 and any renewals or extensions thereof, provided that the Property
covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section
8.03(b);
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment or other types of
insurance and other social security legislation, other than any Lien
imposed by ERISA;
(f) deposits to secure the performance of bids, trade
contracts, licenses and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or
appeal or other surety bonds relating to such judgments) not in excess
of $1,000,000 (except to the extent covered by independent third-party
insurance as to which the insurer has acknowledged in writing its
obligation to cover), unless any such judgment remains undischarged for
a period of more than sixty (60) consecutive days during which
execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section
8.03(c); provided that (i) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (ii)
the Indebtedness secured thereby does not exceed the cost or fair
market value, whichever is lower, of the Property being acquired on the
date of acquisition and (iii) such Liens attach to such Property
concurrently with or within ninety days after the acquisition thereof;
(j) leases, licenses or subleases granted to others not
interfering in any material respect with the business of the Parent or
any Subsidiary;
(k) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Agreement;
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(l) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depository institutions;
(n) Liens of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection;
(o) Liens of sellers of goods to the Parent and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses; and
(p) Liens on the Property of Foreign Subsidiaries securing
Indebtedness of Foreign Subsidiaries under the working capital
facilities referenced in Section 8.03(i).
8.02 Investments.
Make any Investments, except:
(a) cash or Cash Equivalents;
(b) accounts receivable created, acquired or made and trade
credit extended in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(c) Investments consisting of stock, obligations, securities
or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth
in Schedule 8.02;
(e) Guarantees permitted by Section 8.03;
(f) Permitted Acquisitions;
(g) Investments received as consideration for Dispositions
permitted under Section 8.05;
(h) loans and advances to employees, directors or officers in
connection with the award of convertible bonds or stock under a stock
incentive plan, stock option plan or other equity-based compensation
plan or arrangement in the aggregate not to exceed $1,000,000
(calculated on the exercise price for any such shares) in the aggregate
at any time outstanding;
(i) loans and advances to employees, directors, officers or
agents for travel or other business expenses in the ordinary course of
business;
(j) loans and advances to employees, directors, officers or
agents not to exceed $500,000 in the aggregate at any time outstanding;
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(k) advances or loans to customers, manufacturer
representatives and suppliers that do not exceed $1,000,000 in the
aggregate at any one time outstanding;
(l) Investments made prior to the Closing Date in any
Subsidiary;
(m) Investments by any Foreign Subsidiary in another Foreign
Subsidiary;
(n) Investments in any Person that is a Loan Party prior to
giving effect to such Investment;
(o) Investments in Shanghai in an amount not to exceed
$10,000,000 after the Closing Date; and
(p) Investments not permitted in the foregoing clauses in an
amount not to exceed $30,000,000 in the aggregate at any time
outstanding, provided that during the twelve months immediately
following the Closing Date, the Parent and its Subsidiaries shall not
be permitted to make Investments pursuant to this clause (p) that
constitute Acquisitions.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Parent and its Subsidiaries set forth
in Schedule 8.03 (and renewals, refinancings and extensions thereof on
terms and conditions not materially less favorable to the applicable
debtor(s));
(c) purchase money Indebtedness (including obligations in
respect of Capital Leases or Synthetic Leases) hereafter incurred by
the Parent or any of its Subsidiaries to finance the purchase of fixed
assets, provided that (i) such Indebtedness when incurred shall not
exceed the purchase price of the asset(s) financed, (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such
refinancing and (iii) the total amount of all such Indebtedness at any
time outstanding together with any Indebtedness incurred and
outstanding pursuant to Section 8.03(g) and Section 8.03(k) shall not
exceed $25,000,000;
(d) obligations (contingent or otherwise) of the Parent or any
Subsidiary existing or arising under any Swap Contract, provided that
(i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(e) intercompany Indebtedness permitted under Section 8.02;
(f) Guarantees with respect to Indebtedness permitted under
this Section 8.03;
(g) Subordinated Indebtedness incurred to finance Permitted
Acquisitions, provided that (i) the Parent shall have delivered a Pro
Forma Compliance Certificate to the Administrative Agent demonstrating
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that, upon giving effect on a Pro Forma Basis to the incurrence of such
Subordinated Indebtedness, the Loan Parties would be in compliance with
the financial covenants set forth in Section 8.11 as of the most recent
fiscal quarter end for which the Parent has delivered financial
statements pursuant to Section 7.01(a) or (b), (ii) the total amount of
such Subordinated Indebtedness at any time outstanding together with
any Indebtedness incurred and outstanding pursuant to Section 8.03(c)
and Section 8.03(k) shall not exceed $25,000,000 and (iii) no Default
exists or would exist after giving effect to the incurrence of such
Subordinated Indebtedness;
(h) Indebtedness of Shanghai not to exceed $12,000,000 in the
aggregate at any time outstanding;
(i) Indebtedness of Foreign Subsidiaries under working capital
facilities in an amount not to exceed $5,000,000 in the aggregate at
any time outstanding;
(j) Indebtedness of C&D Holdings Limited, a company formed
under the laws of the United Kingdom, of up to Twenty Million British
Pounds Sterling ((pound)20,000,000) under an unsecured revolving credit
facility;
(k) other unsecured Indebtedness, provided that the total
amount of such Indebtedness at any time outstanding together with any
Indebtedness incurred and outstanding pursuant to Section 8.03(c) and
Section 8.03(g) shall not exceed $25,000,000; and
(l) Attributable Indebtedness in respect of Sale and Leaseback
Transactions in an amount not to exceed $15,000,000 in the aggregate at
any time outstanding.
8.04 Fundamental Changes.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the
Parent may merge or consolidate with any Subsidiary, provided that the Parent
shall be the continuing or surviving corporation, (b) any Subsidiary may merge
or consolidate with any other Subsidiary, provided that (i) if International is
a party thereto, then International shall be the continuing or surviving
corporation, (ii) if International is not a party thereto and a Guarantor is a
party thereto, then a Guarantor shall be the continuing or surviving corporation
and (iii) if a Guarantor is not a party thereto and a Domestic Subsidiary is a
party thereto, then a Domestic Subsidiary shall be the continuing or surviving
corporation, (c) any Subsidiary may merge with any Person that is not a Loan
Party in connection with a Disposition permitted under Section 8.05, (d) the
Parent or any Subsidiary may merge with any Person that is not a Loan Party in
connection with a Permitted Acquisition provided that (i) if such transaction
involves the Parent, then the Parent shall be the continuing or surviving
corporation and (ii) if such transaction does not involve the Parent and
involves International, then International shall be the continuing or surviving
corporation, and (e) any Wholly Owned Subsidiary may dissolve, liquidate or wind
up its affairs at any time provided that such dissolution, liquidation or
winding up, as applicable, could not have a Material Adverse Effect.
8.05 Dispositions.
Make any Disposition unless:
(a) if such transaction is a Sale and Leaseback Transaction,
such transaction is not prohibited by the terms of Section 8.15;
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(b) such transaction does not involve the sale or other
disposition of a minority equity interest in any Subsidiary;
(c) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or
attributable to other Property concurrently being disposed of in a
transaction otherwise permitted under this Section 8.05;
(d) the consideration paid in connection therewith shall be
cash or Cash Equivalents, shall be received contemporaneous with the
consummation of such Disposition and shall be in an amount not less
than the fair market value of the Property disposed of; and
(e) with respect to all Dispositions in any fiscal year, (i)
the aggregate net book value of all of the assets sold or otherwise
disposed of by the Parent and its Subsidiaries shall not exceed fifteen
percent (15%) of consolidated assets for the Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP
as of the end of the immediately preceding fiscal year and (ii) all of
the assets sold or otherwise disposed of by the Parent and its
Subsidiaries shall not be assets that generated more than ten percent
(10%) of Consolidated Net Income for the immediately preceding fiscal
year.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may declare and make Restricted Payments
(directly or indirectly) to any Loan Party;
(b) the Parent and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the Capital
Stock of the Person making such dividend or distribution; and
(c) the Parent may make any other Restricted Payments,
provided that (i) no Default exists or would exist after giving effect
to such Restricted Payment and (ii) upon giving effect on a Pro Forma
Basis to such Restricted Payment, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of
the most recent fiscal quarter end for which the Parent has delivered
financial statements pursuant to Section 7.01(a) or (b).
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from
those lines of business conducted by the Parent and its Subsidiaries on the
Closing Date or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a)
transactions between Loan Parties, (b) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section
8.06, (d) reasonable compensation and reimbursement of expenses of officers and
directors and (e) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such
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Person's business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length transaction with
a Person other than an officer, director or Affiliate.
8.09 Burdensome Agreements.
Enter into or permit to exist any Contractual Obligation that encumbers
or restricts the ability of the Parent or any Subsidiary to (a) pay dividends or
make any other distributions to any Loan Party on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
(b) pay any Indebtedness or other obligation owed to any Loan Party, (c) make
loans or advances to any Loan Party, (d) sell, lease or transfer any of its
Property to any Loan Party, (e) grant any Lien on any of its Property to secure
the Obligations pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof or (f) act as a Loan Party pursuant
to the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(e) above) for (i) this Agreement and the other Loan Documents, (ii)
any document or instrument governing Indebtedness incurred pursuant to Section
8.03(c), provided that any such restriction contained therein relates only to
the asset or assets acquired in connection therewith, (iii) any Permitted Lien
or any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien, (iv) customary restrictions and conditions contained in
any agreement relating to the sale of any Property permitted under Section 8.05
pending the consummation of such sale and (v) any document or instrument
governing Subordinated Indebtedness.
8.10 [Reserved].
8.11 Financial Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of any fiscal quarter of the Parent to be greater
than (i) 3.25:1.0 for each fiscal quarter ending during the period from the
Closing Date to (and including) the fiscal quarter ending January 31, 2005 and
(ii) 3:00:1.0 for the fiscal quarter ending April 30, 2005 and each fiscal
quarter ending thereafter.
(b) Consolidated Net Worth. Permit Consolidated Net Worth at any time
to be less than the sum of an amount equal to $225 million, increased on a
cumulative basis as of the end of each fiscal quarter of the Parent, commencing
with the fiscal quarter ending July 30, 2004, by an amount equal to 50% of
Consolidated Net Income (to the extent positive) for the fiscal quarter then
ended plus 100% of the proceeds of all equity issuances after the Closing Date
(excluding any equity issuances in connection with the Datel Transaction and the
Dynamo Transaction) minus 50% of any charges incurred after the Closing Date for
the write down of goodwill.
(c) Consolidated Fixed Charges Coverage Ratio. Permit the Consolidated
Fixed Charges Coverage Ratio as of the end of any fiscal quarter of the Parent
to be less than 2.0:1.0.
8.12 Prepayment of Other Indebtedness, Etc.
(a) Amend or modify any of the terms of any Indebtedness of the Parent
or any Subsidiary (other than Indebtedness arising under the Loan Documents) if
such amendment or modification would add or change any terms in a manner adverse
to the Parent or any Subsidiary (including any amendment or modification that
would shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto).
(b) Amend or modify any of the subordination provisions of any
Subordinated Indebtedness.
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(c) Make (or give any notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange of such Indebtedness other than Indebtedness
arising under the Loan Documents.
8.13 Organization Documents; Fiscal Year; Legal Name, State of
Formation and Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner
adverse to the Lenders.
(b) Change its fiscal year without the prior written consent of the
Required Lenders (which consent shall not be unreasonably withheld or delayed).
(c) Without providing thirty (30) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
8.14 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary,
(i) permit any Person (other than the Parent or any Wholly Owned Subsidiary) to
own any Capital Stock of any Subsidiary, except to qualify directors where
required by applicable law or to satisfy other requirements of applicable law
with respect to the ownership of Capital Stock of Foreign Subsidiaries, (ii)
permit any Subsidiary to issue or have outstanding any shares of preferred
Capital Stock or (iii) create, incur, assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary, except for Permitted Liens.
8.15 Sale and Leaseback Transactions.
Enter into any Sale and Leaseback Transaction unless the Attributable
Indebtedness in respect of such Sale and Leaseback Transaction is permitted by
Section 8.03(l).
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any
amount of principal of any Loan, or (ii) within three days after the
same becomes due, any amount of principal of any L/C Obligation or any
interest on any Loan or on any L/C Obligation, or any commitment fee or
other fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants.
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(i) Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.01,
7.02, 7.03, 7.10 or 7.12 and such failure continues for ten
days after the earlier of a Responsible Officer obtaining
actual knowledge thereof or notice thereof is given to the
Parent by the Administrative Agent; or
(ii) Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section
7.05(a), 7.11 or Article VIII; or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty days after the earlier
of (i) a Responsible Person of any Loan Party becoming aware of such
failure or (ii) notice thereof to any Loan Party by the Administrative
Agent; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of any Loan Party herein, in any other Loan Document, or in
any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed
made or delivered; or
(e) Cross-Default. (i) The Parent or any Subsidiary fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount; (ii) the Parent or any
Subsidiary fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event occurs, the effect of which default or other event is
to cause, or to permit the holder or holders of such Indebtedness or
the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or
cash collateral in respect thereof to be demanded; or (iii) there
occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such
Swap Contract as to which the Parent or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which
the Parent or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value owed by the Parent or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for sixty calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or
any material part of its Property is instituted without the consent of
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such Person and continues undismissed or unstayed for sixty calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Parent or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty days
after its issue or levy; or
(h) Judgments. There is entered against the Parent or any
Subsidiary (i) one or more final judgments or orders for the payment of
money in an aggregate amount exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the
insurer has acknowledged in writing its obligation to cover), or (ii)
any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of forty-five consecutive days during which a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Parent under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Parent or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect or ceases to give
the Administrative Agent, for the benefit of itself and the Lenders,
any material part of the Liens purported to be created thereby; or any
Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and
any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrowers;
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(c) require that the Parent Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount
thereof); and
(d) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents
or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Parent to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without any act of the
Administrative Agent or any Lender.
9.03 Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after
the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, fees,
premiums and scheduled periodic payments, and any interest accrued
thereon, due under any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract
is permitted by Section 8.03(d), ratably among the Lenders (and, in the
case of such Swap Contracts, Affiliates of Lenders) in proportion to
the respective amounts described in this clause Third held by them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, breakage, termination
or other payments, and any interest accrued thereon, due under any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section
8.03(d), and amounts due under any Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender,
and to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit, ratably among the
Lenders (and, in the case of such Swap Contracts and Treasury
Management Agreements, Affiliates of Lenders) in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by
Law.
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Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
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or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
10.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless (i) it shall first receive
such advice or concurrence of the Required Lenders (or such greater number of
Lenders as may be expressly required hereby in any instance) as it deems
appropriate or (ii) if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
(other than any liability or expense resulting solely from its gross negligence
or willful misconduct). Notwithstanding anything in this Agreement or any other
Loan Document to the contrary, the Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Parent referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default". The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders (or such
greater number of Lenders as may be expressly required hereby in any instance)
in accordance with Article IX; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the
best interest of the Lenders.
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10.06 Credit Decision; Disclosure of Information by Administrative
Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrowers and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that (a) no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders (or such
greater number of Lenders as may be expressly required hereby in any instance)
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section and (b) no Lender shall be liable for the payment to
any Agent-Related Person of any Indemnified Liabilities that were not incurred
by the Administrative Agent in its capacity as such or by another Agent-Related
Person in its capacity as such. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers; provided, however, that no Lender shall be liable for the payment to
the Administrative Agent of any portion of such costs and expenses to the extent
determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted solely from the Administrative Agent's own gross
negligence or willful misconduct. The undertaking in this Section shall survive
termination of the Revolving Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
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10.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Lenders and the Loan Parties; provided that any such
resignation by Bank of America shall also constitute its resignation as L/C
Issuer and Swing Line Lender. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be subject to the consent of the Parent at all times other than during the
existence of an Event of Default (which consent of the Parent shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Parent, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, L/C Issuer
and Swing Line Lender and the respective terms "Administrative Agent", "L/C
Issuer" and "Swing Line Lender" shall mean such successor administrative agent,
Letter of Credit issuer and swing line lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring L/C Issuer's and Swing Line Lender's rights, powers
and duties as such shall be terminated, without any other or further act or deed
on the part of such retiring L/C Issuer or Swing Line Lender or any other
Lender, other than the obligation of the successor L/C Issuer to issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article X and Sections 11.04 and 11.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date thirty days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
10.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Lenders hereby authorize the
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Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on any of the Borrowers), to the extent permitted by applicable
Laws:
(a) to file and present evidence to prove a claim (on behalf
of all of the Lenders in lieu of separate claims filed by each Lender)
for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, all L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and
the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any Collateral granted to or held
by the Administrative Agent under any Loan Document (i) upon
termination of the Revolving Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with
Section 11.01; and
(b) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to
release or subordinate its interest in particular types or items of
Property, or to release any Guarantor from its obligations under the
Guaranty, pursuant to this Section 10.11.
10.12 Other Agents; Arrangers and Managers.
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None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent", "co-agent", "book manager", "lead manager", "arranger", "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall 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 any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by any Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the
Borrowers or the applicable Loan Party, as the case may be, and acknowledged by
the Administrative Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Revolving Commitment of any Lender
(or reinstate any Revolving Commitment terminated pursuant to Section
9.02) without the written consent of such Lender (it being understood
and agreed that a waiver of any condition precedent set forth in
Section 5.02 or of any Default or a mandatory reduction in Revolving
Commitments is not considered an extension or increase in Revolving
Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal (excluding mandatory
prepayments), interest, fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or any fees or other amounts
payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary to
amend the definition of "Default Rate" or to waive any obligation of
the Borrowers to pay interest at the Default Rate;
(d) change Section 2.13 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;
(e) amend Section 1.07 or the definition of "Alternative
Currency" without the written consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent or
take any action hereunder, in each case without the written consent of
each Lender directly affected thereby;
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(g) except in connection with a Disposition permitted under
Section 8.05, release all or substantially all of the Collateral
without the written consent of each Lender directly affected thereby;
or
(h) release any of the Borrowers or, except in connection with
a merger or consolidation permitted under Section 8.04 or a Disposition
permitted under Section 8.05, all or substantially all of the
Guarantors, from its or their obligations under the Loan Documents
without the written consent of each Lender directly affected thereby;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Revolving Commitment of such Lender may not be increased or
extended without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Loan Parties, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person
on Schedule 11.02 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Loan Parties, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
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All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent, the L/C Issuer and the Swing Line
Lender pursuant to Article II shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a manually
signed original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or
signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of a Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrowers shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of a Borrower. All telephonic notices
to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
The Borrowers agree (a) to pay or reimburse the Administrative Agent
for all reasonable costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
and costs and expenses in connection with the use of Intralinks, Inc. or other
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similar information transmission systems in connection with this Agreement, and
(b) to pay or reimburse the Administrative Agent and each Lender for all costs
and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
or any Lender and the cost of independent public accountants and other outside
experts retained by the Administrative Agent or any Lender. All amounts due
under this Section 11.04 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination of the
Revolving Commitments and repayment of all other Obligations.
11.05 Indemnification by the Borrowers.
Whether or not the transactions contemplated hereby are consummated,
the Borrowers agree to indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, trustees, advisors, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Revolving Commitment, Loan or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Parent, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the Parent, any Subsidiary or any
other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, provided,
however, the Parent may have a claim against an Indemnitee, and an Indemnitee
may be liable to the Parent, to the extent, but only to the extent, of any such
damages suffered by the Parent which the Parent proves were caused by such
Indemnitee's willful misconduct or gross negligence. Notwithstanding any
provision in this Agreement or any other Loan Document to the contrary, no
Indemnitee shall have any liability for any indirect, punitive or consequential
damages relating to this Agreement or any other Loan Document or arising out of
its activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Revolving Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
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11.06 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is
made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent (to the extent such amount had been remitted to such Lender), plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Overnight Rate from time to time in effect, in
the applicable currency of such recovery or payment.
11.07 Successors and Assigns.
(a) The provisions of this Agreement and the other Loan Documents shall
be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby or thereby, except that
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or thereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including all or a portion of its Revolving Commitment and
the Loans (including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Revolving Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Revolving
Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Parent otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Revolving
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans; and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500. Subject to acceptance
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and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Borrowers (at their expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrowers or any of the Borrowers'
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Revolving Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Parent's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Parent
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 11.15 as though
it were a Lender.
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(f) Any Lender may at any time pledge or assign, or grant a security
interest in, all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Revolving Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon thirty days'
notice to the Parent and the Lenders, resign as L/C Issuer and/or (ii) upon
thirty days' notice to the Parent, resign as Swing Line Lender. In the event of
any such resignation as L/C Issuer or Swing Line Lender, the Parent shall be
entitled, with the consent of the Required Lenders, to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Parent to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights and obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as
Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c).
11.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Parent; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Parent; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Revolving Commitments, and the Credit Extensions. For the
purposes of this Section, "Information" means all information received from any
Loan Party relating to any Loan Party or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party. Any Person required
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to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
11.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender and any Affiliate of a Lender is authorized at any time and from time to
time, without prior notice to any Loan Party, any such notice being waived by
the Loan Parties to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held by, and other indebtedness at any time owing by, such Lender to
or for the credit or the account of the respective Loan Parties against any and
all Obligations owing to such Lender hereunder or under any other Loan Document,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other
Loan Document. Each Lender agrees promptly to notify the Parent and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrowers. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
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11.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.14 Severability.
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Internal Revenue Code
(a "Foreign Lender") shall deliver to the Administrative Agent, prior
to receipt of any payment subject to withholding under the Internal
Revenue Code (or upon accepting an assignment of an interest herein),
two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to
an exemption from, or reduction of, withholding tax on all payments to
be made to such Foreign Lender by the Borrowers pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Foreign Lender by the Borrowers pursuant to
this Agreement) or such other evidence satisfactory to the Borrowers
and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Internal Revenue Code.
Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrowers and the Administrative Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by
the Borrowers pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
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shall deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required
under the Internal Revenue Code, to establish that such Lender is not
acting for its own account with respect to a portion of any such sums
payable to such Lender.
(iii) The Borrowers shall not be required to pay any
additional amount to any Foreign Lender under Section 3.01 (A) with
respect to any Taxes required to be deducted or withheld on the basis
of the information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 11.15(a); provided that if such Lender shall
have satisfied the requirement of this Section 11.15(a) on the date
such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this
Section 11.15(a) shall relieve any Borrower of its obligation to pay
any amounts pursuant to Section 3.01 in the event that, as a result of
any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under
any of the Loan Documents is not subject to withholding or is subject
to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrowers are not
required to pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Internal
Revenue Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Internal Revenue Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent, unless such failure to properly
withhold or backup withhold, as the case may be, was solely the result of the
Administrative Agent's gross negligence or willful misconduct. The obligation of
the Lenders under this Section shall survive the termination of the Revolving
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
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11.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the Parent
shall have the right to replace a Lender as a party to this Agreement, the
Parent may, upon notice to such Lender and the Administrative Agent, replace
such Lender by causing such Lender to assign its Revolving Commitment and
outstanding Loans (with the assignment fee to be paid by the Borrowers in such
instance) pursuant to Section 11.07(b) to one or more other Lenders or Eligible
Assignees procured by the Parent; provided, however, that if the Parent elects
to exercise such right with respect to any Lender pursuant to Section 3.06(b),
it shall be obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The Parent shall (x) pay in full
all principal, interest, fees and other amounts owing to such Lender through the
date of replacement (including any amounts payable pursuant to Section 3.01,
Section 3.04 and Section 3.05), (y) provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer and the
Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing
Line Loans then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Revolving Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT ALL PARTIES HERETO SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK, NEW YORK, OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE LOAN
PARTIES, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
11.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
91
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.19 USA PATRIOT Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Act.
11.20 Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Borrowers
in respect of any such sum due from it to the Administrative Agent or the
Lenders hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due the Administrative Agent and/or any Lender from
the Borrowers in the Agreement Currency, the Borrowers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due the Administrative Agent and/or any Lender in such
currency, the Administrative Agent agrees to return the amount of any excess to
the Borrowers (or to any other Person who may be entitled thereto under
applicable law).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
PARENT: C&D TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
INTERNATIONAL: C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
GUARANTORS: C&D CHARTER HOLDINGS, INC.,
a Delaware corporation
DATEL, INC.,
a Delaware corporation
DATEL SYSTEMS, INC.,
a Massachusetts corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer of each
foregoing Guarantor
DATEL HOLDING CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGES CONTINUE]
LENDERS: BANK OF AMERICA N.A.,
as a Lender, L/C Issuer and Swing Line
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Dusko Mariovic
-----------------------------------------
Name: Dusko Mariovic
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
CITIZENS BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
