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CREDIT AGREEMENT
among
SITEL CORPORATION,
VARIOUS BANKS,
U.S. BANK NATIONAL ASSOCIATION,
as SYNDICATION AGENT,
FIRST UNION NATIONAL BANK,
as DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
as AGENT
__________________________________
Dated as of July 24, 1997
and
amended and restated
as of
March 10, 1998
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CREDIT AGREEMENT, dated as of July 24, 1997 and amended and restated
as of March 10, 1998, among SITEL CORPORATION, a Minnesota corporation (the
"Borrower"), the Banks party hereto from time to time, U.S. BANK NATIONAL
ASSOCIATION, as Syndication Agent, FIRST UNION NATIONAL BANK, as Documentation
Agent, and BANKERS TRUST COMPANY, as Agent (all capitalized terms used herein
and defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
_ _ _ _ _ _ _ _ _ _
WHEREAS, the Borrower, the Banks and the Agent are parties to a Credit
Agreement, dated as of July 24, 1997 (as amended, modified or supplemented to,
but not including, the Restatement Effective Date, the "Original Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Original Credit Agreement
be amended and restated in its entirety, and the Banks and the Agent are willing
to amend and restate the same, upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree that, on the Restatement
Effective Date, the Original Credit Agreement shall be and is hereby amended and
restated in its entirety as follows:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees (A) to convert, on the
Restatement Effective Date, Original Revolving Loans made by such Bank to the
Borrower pursuant to the Original Credit Agreement and outstanding on the
Restatement Effective Date (but after giving effect to the repayment of Original
Revolving Loans on such date pursuant to Section 5.05) into a Borrowing of
Revolving Loans hereunder (as so converted, together with all revolving loans
made pursuant to following clause (B), the "Revolving Loans" and each, a
"Revolving Loan") and (B) to make, at any time and from time to time on and
after the Restatement Effective Date and prior to the Final Maturity Date, one
or more additional Revolving Loans to the Borrower, all of which Revolving Loans
made pursuant to preceding clauses (A) and (B) (i) shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided that, except as otherwise specifically provided in
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type, (ii) may be repaid and reborrowed in accordance with
the provisions hereof, (iii) shall not exceed for any Bank at any time
outstanding that aggregate principal amount which, when added to the product of
(x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Bank at such time and (iv) shall not exceed for all Banks at
any time outstanding that aggregate principal amount which, when added to the
sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at such
time and (II) the aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the lesser of (x) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (y) the Total Revolving Loan
Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein,
the Swingline Bank agrees to make, at any time and from time to time on and
after the Restatement Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Swingline Loan" and, collectively,
the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made
and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the sum of (I) the
aggregate principal amount of all Revolving Loans then outstanding and (II) the
aggregate amount of all Letter of Credit Outstandings at such time, an amount
equal to the lesser of (A) the Borrowing Base at such time (based on the
Borrowing Base Certificate last delivered) and (B) the Total Revolving Loan
Commitment at such time, and (iv) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount. Notwithstanding anything
to the contrary contained in this Section 1.01(b), (x) the Swingline Bank shall
not be obligated to make any Swingline Loans at a time when a Bank Default
exists unless the Swingline Bank has entered into arrangements satisfactory to
it and the Borrower to eliminate the Swingline Bank's risk with respect to the
Defaulting Bank's or Banks' participation in such Swingline Loans, including by
cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the
outstanding Swingline Loans and (y) the Swingline Bank shall not make any
Swingline Loan after it has received written notice from the Borrower or the
Required Banks stating that a Default or an Event of Default exists and is
continuing until such time as the Swingline Bank shall have received written
notice (I) of rescission of all such notices from the party or parties
originally delivering such notice or (II) of the waiver of such Default or Event
of Default by the Required Banks.
(c) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that the Swingline Bank's outstanding
Swingline Loans shall be funded with one or more Borrowings of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 10.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Banks pro rata based on each Bank's
RL Percentage (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the
proceeds thereof shall be applied directly by the Swingline Bank to repay the
Swingline Bank for such outstanding Swingline Loans. Each Bank hereby
irrevocably agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Borrowing Base or the Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each Bank hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Swingline Bank such participations in the
outstanding Swingline Loans as shall be necessary to cause the Banks to share in
such Swingline Loans ratably based upon their respective RL Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Bank until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Bank shall be required to pay the Swingline Bank
interest on the principal amount of participation purchased for each day from
and including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the rate otherwise
applicable to Revolving Loans maintained as Base Rate Loans hereunder for each
day thereafter.
1.02 Minimum Amount Of Each Borrowing. The aggregate principal
amount of each Borrowing of Revolving Loans or Swingline Loans shall not be less
than the Minimum Borrowing Amount applicable thereto. More than one Borrowing
may occur on the same date, but at no time shall there be outstanding more than
ten Borrowings of Eurodollar Loans.
1.03 Notice Of Borrowing. (a) Whenever the Borrower desires to
incur (x) Eurodollar Loans hereunder, the Borrower shall give the Agent at the
Notice Office at least three Business Days' prior notice of each Eurodollar Loan
to be incurred hereunder and (y) Base Rate Loans hereunder (excluding Swingline
Loans), the Borrower shall give the Agent at the Notice Office at least one
Business Day's prior notice of each Base Rate Loan to be incurred hereunder,
provided that (in each case) any such notice shall be deemed to have been given
on a certain day only if given before 11:00 A.M. (New York time) on such day.
Each such notice (each a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by the
Borrower in writing, or by telephone promptly confirmed in writing, in the form
of Exhibit A, appropriately completed to specify the aggregate principal amount
of the Revolving Loans to be incurred pursuant to such Borrowing, the date of
such Borrowing (which shall be a Business Day), and whether the Revolving Loans
being incurred pursuant to such Borrowing are to be initially maintained as Base
Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Agent shall promptly give each Bank notice of such proposed Borrowing, of such
Bank's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Bank no later than 2:00 P.M.
(New York time) on the date that a Swingline Loan is to be incurred hereunder,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable
and specify in each case (A) the date of Borrowing (which shall be a Business
Day) and (B) the aggregate principal amount of the Swingline Loans to be
incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Agent or the Swingline Bank, as the case may be, may act without
liability upon the basis of telephonic notice of such Borrowing or prepayment,
as the case may be, believed by the Agent or the Swingline Bank, as the case may
be, in good faith to be from the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer or any
Assistant Treasurer of the Borrower, or from any other authorized officer of the
Borrower designated in writing by any of the foregoing officers of the Borrower
to the Agent as being authorized to give such notices, prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the right to
dispute the Agent's or Swingline Bank's record of the terms of such telephonic
notice of such Borrowing or prepayment of Loans, as the case may be, absent
manifest error.
1.04 Disbursement Of Funds. No later than 12:00 Noon (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 1:00 P.M. (New York time) on the date specified in Section 1.01(c)),
each Bank will make available its pro rata portion (determined in accordance
with Section 1.07) of each such Borrowing requested to be made on such date (or
in the case of Swingline Loans, the Swingline Bank will make available the full
amount thereof). All such amounts will be made available in Dollars and in
immediately available funds at the Payment Office, and, except for Revolving
Loans made pursuant to a Mandatory Borrowing, the Agent will make available to
the Borrower at the Payment Office the aggregate of the amounts so made
available by the Banks. Unless the Agent shall have been notified by any Bank
prior to the date of Borrowing that such Bank does not intend to make available
to the Agent such Bank's portion of any Borrowing to be made on such date, the
Agent may assume that such Bank has made such amount available to the Agent on
such date of Borrowing and the Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Agent
by such Bank, the Agent shall be entitled to recover such corresponding amount
on demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to the
Agent. The Agent also shall be entitled to recover on demand from such Bank or
the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Agent to the Borrower until the date such corresponding amount is
recovered by the Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result of
any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Bank shall be evidenced (i) if Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1, with blanks appropriately completed in
conformity herewith (each a "Revolving Note" and, collectively, the "Revolving
Notes") and (ii) if Swingline Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the Restatement Effective Date (or, if issued after the Restatement
Effective Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount equal to the Revolving Loan Commitment of such Bank (or, if
issued after the termination thereof, be in a stated principal amount equal to
the outstanding Revolving Loans of such Bank at such time) and be payable in the
outstanding principal amount of the Revolving Loans evidenced thereby, (iv)
mature on the Final Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Bank shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Bank or its
registered assigns and be dated the Restatement Effective Date, (iii) be in a
stated principal amount equal to the Maximum Swingline Amount and be payable in
the outstanding principal amount of the Swingline Loans evidenced thereby from
time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, all or a portion equal to at least the Minimum Borrowing
Amount of the outstanding principal amount of Revolving Loans made pursuant to
one or more Borrowings of one or more Types of Revolving Loans into a Borrowing
of another Type of Revolving Loan, provided that, (i) except as otherwise
provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable to the Revolving
Loans being converted and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made pursuant
to a single Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) Base Rate Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of such conversion, and
(iii) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02.
Each such conversion shall be effected by the Borrower by giving the Agent at
the Notice Office prior to 11:00 A.M. (New York time) at least three Business
Days' prior notice (each a "Notice of Conversion") specifying the Revolving
Loans to be so converted, the Borrowing or Borrowings pursuant to which such
Loans were made and, if to be converted into Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Revolving
Loans. Upon any such conversion the proceeds thereof will be deemed to be
applied directly on the day of such conversion to prepay the outstanding
principal amount of the Revolving Loans being converted. Swingline Loans may
not be converted pursuant to this Section 1.06.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be incurred from the Banks pro rata on the basis of their
Revolving Loan Commitments. It is understood that no Bank shall be responsible
for any default by any other Bank of its obligation to make Revolving Loans
hereunder and that each Bank shall be obligated to make the Revolving Loans
provided to be made by it hereunder, regardless of the failure of any other Bank
to make its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the maturity thereof (whether by acceleration or otherwise) at a
rate per annum which shall be equal to the Base Rate in effect from time to
time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the maturity thereof (whether by acceleration or otherwise) at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Applicable Eurodollar Rate Margin plus the Eurodollar Rate for
such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) the rate which is 2% in excess of the rate then borne by such Loans and (y)
the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans from time to time. Interest which accrues under this Section 1.08(c)
shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand. Interest which
accrued under the Original Credit Agreement prior to the Restatement Effective
Date but which remains unpaid on such date (and which was not required to be
paid on or prior to such date in accordance with the terms of the Original
Credit Agreement or this Agreement) shall be payable at the times otherwise
provided above (but calculated at the respective rates provided in the Original
Credit Agreement for periods occurring prior to the Restatement Effective Date)
for the interest involved.
(e) Upon each Interest Determination Date, the Agent shall determine
the Eurodollar Rate for each Interest Period applicable to Eurodollar Loans and
shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Agent notice thereof, the interest period (each an "Interest Period") applicable
to such Eurodollar Loan, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(v) no Interest Period may be selected at any time when a Default or
an Event of Default is then in existence; and
(vi) no Interest Period in respect of any Borrowing of Eurodollar
Loans shall be selected which extends beyond the Final Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Bank shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Effective Date in
any applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to any Bank of the principal of or interest on the Notes or any
other amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or profits of such Bank
pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or any
subdivision thereof or therein) or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the Eurodollar
Rate and/or (y) other circumstances since the Effective Date affecting such
Bank, the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good faith
with any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the Effective
Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Bank (or the Agent, in the case of
clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
above, to the Agent of such determination (which notice the Agent shall
promptly transmit to each of the other Banks). Thereafter (x) in the case
of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and
any Notice of Borrowing or Notice of Conversion given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by
way of conversion) shall be deemed rescinded by the Borrower, (y) in the
case of clause (ii) above, the Borrower shall pay to such Bank, upon such
Bank's written request therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing in reasonable detail the
basis for the calculation thereof, submitted to the Borrower by such Bank
shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, cancel such
Borrowing by giving the Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Bank or the Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan
is then outstanding, upon at least three Business Days' written notice to the
Agent, require the affected Bank to convert such Eurodollar Loan into a Base
Rate Loan, provided that, if more than one Bank is affected at any time, then
all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank determines that after the Effective Date the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the NAIC or any governmental authority, central bank
or comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Revolving Loan
Commitment hereunder or its obligations hereunder, then the Borrower shall pay
to such Bank, upon its written demand therefor, such additional amounts as shall
be required to compensate such Bank or such other corporation for the increased
cost to such Bank or such other corporation or the reduction in the rate of
return to such Bank or such other corporation as a result of such increase of
capital. In determining such additional amounts, each Bank will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, provided that such Bank's determination of compensation owing under
this Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Bank, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower, which notice shall show in
reasonable detail the basis for calculation of such additional amounts.
1.11 Compensation. The Borrower shall compensate each Bank, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting such compensation), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Bank to fund its Eurodollar Loans but excluding loss of anticipated
profits) which such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including
any repayment made pursuant to Section 4.01, Section 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its Loans when required by the terms of this Agreement or any Note held by
such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting
Bank or otherwise defaults in its obligations to make Loans, (y) upon the
occurrence of an event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to any Bank
which results in such Bank charging to the Borrower increased costs in excess of
those being generally charged by the other Banks or (z) in the case of a refusal
by a Bank to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as (and to the extent) provided in Section 13.12(b), the Borrower
shall have the right, if no Default or Event of Default then exists (or, in the
case of preceding clause (z), no Default or Event of Default will exist
immediately after giving effect to such replacement), to replace such Bank (the
"Replaced Bank") with one or more other Eligible Transferees, none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") and each of whom shall be required to be reasonably
acceptable to the Agent, provided that (i) at the time of any replacement pur
suant to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire the entire Revolving
Loan Commitment and outstanding Revolving Loans of, and participations in
Letters of Credit by, the Replaced Bank and, in connection therewith, shall pay
to (x) the Replaced Bank in respect thereof an amount equal to the sum of (I) an
amount equal to the principal of, and all accrued interest on, all outstanding
Revolving Loans of the Replaced Bank, (II) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such time and
(III) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank pursuant to Section 3.01, (y) each Issuing Bank an amount equal to
such Replaced Bank's RL Percentage of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Bank to such Issuing Bank and (z) the Swingline Bank an amount
equal to such Replaced Bank's RL Percentage of any Mandatory Borrowings to the
extent such amount was not theretofore funded by such Replaced Bank to the
Swingline Bank and (ii) all obligations of the Borrower due and owing to the
Replaced Bank at such time (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Revolving Note executed by
the Borrower, the Replacement Bank shall become a Bank hereunder and the
Replaced Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which shall survive as to
such Replaced Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Bank
issue, at any time and from time to time on and after the Restatement Effective
Date and prior to the 30th day prior to the Final Maturity Date, (x) for the
account of the Borrower and for the benefit of any holder (or any trustee, agent
or other similar representative for any such holders) of L/C Supportable
Obligations of the Borrower or any of its Subsidiaries, an irrevocable standby
letter of credit, in a form customarily used by such Issuing Bank or in such
other form as has been approved by such Issuing Bank and (y) for the account of
the Borrower and for the benefit of sellers of goods to the Borrower or any of
its Subsidiaries, an irrevocable trade letter of credit, in a form customarily
used by such Issuing Bank or in such other form as has been approved by such
Issuing Bank (each such letter of credit issued pursuant to this Section 2.01,
together with each letter of credit described in the second succeeding sentence,
a "Letter of Credit"). All Letters of Credit shall be denominated in Dollars
and shall be issued on a sight basis only; provided, however, with the consent
of the respective Issuing Bank, up to $10,000,000 of standby Letters of Credit
in the aggregate may be issued and outstanding at any time in Spanish Pesetas,
British Pounds Sterling, Deutsche Marks, Canadian Dollars and/or Australian
Dollars. It is hereby acknowledged and agreed that each of the letters of
credit described in Schedule VIII (the "Existing Letters of Credit") which were
issued under the Original Credit Agreement prior to the Restatement Effective
Date and which remain outstanding on such date, shall constitute a "Letter of
Credit" for all purposes of this Agreement.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Bank agrees that it will, at any time and from time to time on and
after the Restatement Effective Date and prior to the 30th day prior to the
Final Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower, one or more Letters of Credit as
are permitted to remain outstanding hereunder without giving rise to a Default
or an Event of Default, provided that no Issuing Bank shall be under any
obligation to issue any Letter of Credit of the types described above if at the
time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or not
having the force of law) from any governmental authority with jurisdiction
over such Issuing Bank shall prohibit, or request that such Issuing Bank
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuing Bank with respect to
such Letter of Credit any restriction or reserve or capital requirement
(for which such Issuing Bank is not otherwise compensated) not in effect on
the Effective Date, or any unreimbursed loss, cost or expense which was not
applicable or in effect with respect to such Issuing Bank as of the date
hereof and which such Issuing Bank reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇
material to it; or
(ii) such Issuing Bank shall have received notice from the Borrower or
the Required Banks prior to the issuance of such Letter of Credit of the
type described in the second sentence of Section 2.03(b).
(c) Each Issuing Bank agrees to provide to the Agent by facsimile
promptly on the first Business Day of each week the daily aggregate Stated
Amount of all Letters of Credit issued by such Issuing Bank and outstanding
during the immediately preceding week.
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $25,000,000 or (y) when added to the sum of
(I) the aggregate principal amount of all Revolving Loans then outstanding and
(II) the aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the lesser of (A) the Borrowing Base at such time (based on the
Borrowing Base Certificate last delivered) and (B) the Total Revolving Loan
Commitment at such time and (ii) each Letter of Credit shall by its terms
terminate on or before the earlier of (x) (A) in the case of standby Letters of
Credit, the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit may be extendable for successive
periods of up to 12 months, but not beyond the third Business Day prior to the
Final Maturity Date, on terms acceptable to such Issuing Bank) and (B) in the
case of trade Letters of Credit, the date which occurs 180 days after the date
of the issuance thereof and (y) three Business Days (or 30 days in the case of a
trade Letter of Credit) prior to the Final Maturity Date.
2.03 Letter of Credit Requests; Minimum Stated Amount. (a) Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Agent and the respective Issuing Bank at least five
Business Days' (or such shorter period as is acceptable to such Issuing Bank)
written notice thereof. Each notice shall be in the form of Exhibit C (each a
"Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.02. Unless the respective Issuing Bank has received notice from the Borrower
or the Required Banks before it issues a Letter of Credit that one or more of
the conditions specified in Section 5 or 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.02, then such Issuing
Bank shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Bank's usual and customary practices. Upon its issuance of or
amendment to any standby Letter of Credit, the respective Issuing Bank shall
promptly notify the Borrower, each Participant and the Agent of such issuance or
amendment and such notification shall be accompanied by a copy of the issued
standby Letter of Credit or amendment. Notwithstanding anything to the contrary
contained in this Agreement, in the event that a Bank Default exists, no Issuing
Bank shall be required to issue any Letter of Credit unless such Issuing Bank
has entered into an arrangement satisfactory to it and the Borrower to eliminate
such Issuing Bank's risk with respect to the participation in Letters of Credit
by the Defaulting Bank or Banks, including by cash collateralizing such
Defaulting Bank's or Banks' RL Percentage of the Letter of Credit Outstandings.
(c) The initial Stated Amount of each Letter of Credit shall not be
less than $100,000 (or, in the case of a Letter of Credit issued in a currency
other than Dollars, the Dollar Equivalent thereof) or such lesser amount as is
acceptable to the respective Issuing Bank.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by each Issuing Bank of any Letter of Credit, such Issuing Bank shall
be deemed to have sold and transferred to each Bank, other than such Issuing
Bank (each such Bank, in its capacity under this Section 2.04, a "Participant"),
and each such Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such
Participant's RL Percentage, in such Letter of Credit, each drawing or payment
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Revolving Loan Commitments or RL Percentages of the Banks
pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new RL Percentages of the assignor and assignee Bank, as the case may be.
(b) In determining whether to pay under any Letter of Credit issued
by it, no Issuing Bank shall have an obligation relative to the other Banks
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as finally determined by a
court of competent jurisdiction), shall not create for such Issuing Bank any
resulting liability to the Borrower, any other Credit Party, any Bank or any
other Person.
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit issued by it and the Borrower shall not have reimbursed such
amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing
Bank shall promptly notify the Agent, which shall promptly notify each
Participant of such failure, and, except as provided in the proviso of the
immediately succeeding sentence, each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's RL
Percentage of such unreimbursed payment in Dollars (or, in the case of any
unreimbursed payment made in a currency other than Dollars, of the Dollar
Equivalent of such unreimbursed payment, as determined by the respective Issuing
Bank on the date on which such unreimbursed payment was made by such Issuing
Bank) and in same day funds. If the Agent so notifies, prior to 11:00 A.M.
(New York time) on any Business Day, any Participant required to fund a payment
under a Letter of Credit, such Participant shall make available to the
respective Issuing Bank in Dollars (or, in the case of any unreimbursed payment
made in a currency other than Dollars, of the Dollar Equivalent thereof) such
Participant's RL Percentage of the amount of such payment on such Business Day
in same day funds; provided, however, that no Participant shall be obligated to
pay to the respective Issuing Bank its RL Percentage of such unreimbursed amount
for any wrongful payment made by such Issuing Bank under a Letter of Credit
issued by it as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of such Issuing Bank (as finally determined by a
court of competent jurisdiction.) If and to the extent such Participant shall
not have so made its RL Percentage of the amount of such payment available to
the respective Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate for the first three days and at the interest
rate applicable to Base Rate Loans for each day thereafter. The failure of any
Participant to make available to the respective Issuing Bank its RL Percentage
of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to such Issuing Bank
its RL Percentage of any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's RL
Percentage of any such payment.
(d) Whenever an Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Bank shall pay to each Participant
which has paid its RL Percentage thereof, in Dollars (or, in the case of any
payment received in a currency other than Dollars, of the Dollar Equivalent
thereof) and in same day funds, an amount equal to such Participant's share
(based upon the proportionate aggregate amount originally funded by such
Participant to the aggregate amount funded by all Participants) of the principal
amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Bank shall
furnish to such Participant copies of any standby Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable
and not subject to any qualification or exception whatsoever (except as
otherwise provided in the proviso to the second sentence of Section 2.04(c)) and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Agent, any Issuing Bank, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower or any Subsidiary of the Borrower and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
agrees to reimburse each Issuing Bank, by making payment to the Agent in Dollars
(or, in the case of any payment or disbursement made by such Issuing Bank in a
currency other than Dollars, of the Dollar Equivalent of such payment or
disbursement as determined by such Issuing Bank on the date of such payment or
disbursement) and in immediately available funds at the Payment Office, for any
payment or disbursement made by such Issuing Bank under any Letter of Credit
issued by it (each such amount (or the Dollar Equivalent thereof, as the case
may be), so paid until reimbursed, an "Unpaid Drawing"), not later than one
Business Day following receipt by the Borrower of notice of such payment or
disbursement (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 10.05 shall have occurred and be
continuing, in which case the Unpaid Drawing shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the Borrower)), with interest on the amount so paid
or disbursed by such Issuing Bank, to the extent not reimbursed prior to 12:00
Noon (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date such Issuing Bank
was reimbursed by the Borrower therefor at a rate per annum which shall be the
Base Rate in effect from time to time; provided, however, to the extent such
amounts are not reimbursed prior to 12:00 Noon (New York time) on the third
Business Day following the receipt by the Borrower of notice of such payment or
disbursement or following the occurrence of a Default or an Event of Default
under Section 10.05, interest shall thereafter accrue on the amounts so paid or
disbursed by such Issuing Bank (and until reimbursed by the Borrower) at a rate
per annum which shall be the Base Rate in effect from time to time plus 2%, in
each such case, with interest to be payable on demand. Each Issuing Bank shall
give the Borrower prompt written notice of each Drawing under any Letter of
Credit issued by it, provided that the failure to give any such notice shall in
no way affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse each Issuing Bank with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against any Bank (including in its
capacity as issuer of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of any drawing or payment
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse the respective Issuing Bank for any wrongful payment made
by such Issuing Bank under a Letter of Credit issued by it as a result of acts
or omissions constituting willful misconduct or gross negligence on the part of
such Issuing Bank (as finally determined by a court of competent jurisdiction).
2.06 Increased Costs. If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by the
NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Bank or any Participant
with any request or directive by the NAIC or by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by any Issuing Bank or participated in by any Participant, or (ii)
impose on any Issuing Bank or any Participant any other conditions relating,
directly or indirectly, to this Agreement; and the result of any of the
foregoing is to increase the cost to any Issuing Bank or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Bank or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit (except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Issuing Bank or such Participant pursuant to
the laws of the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), then, upon the delivery of the certificate referred to below to the
Borrower by such Issuing Bank or such Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Agent), the
Borrower shall pay to such Issuing Bank or such Participant such additional
amount or amounts as will compensate such Issuing Bank or such Participant for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Each Issuing Bank or Participant, upon
determining that any additional amounts will be payable to it pursuant to this
Section 2.06, will give prompt written notice thereof to the Borrower, which
notice shall include a certificate submitted to the Borrower by such Issuing
Bank or such Participant (a copy of which certificate shall be sent by such
Issuing Bank or such Participant to the Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Bank or such Participant. The certificate
required to be delivered pursuant to this Section 2.06 shall, absent manifest
error, be final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Agent for
distribution to each Non-Defaulting Bank, a commitment commission (the
"Commitment Commission") for the period from and including the Effective Date to
but excluding the Final Maturity Date (or such earlier date on which the Total
Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to 1/4 of 1% per annum on the daily average Unutilized Revolving
Loan Commitment of such Non-Defaulting Bank. Accrued Commitment Commission
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the Final Maturity Date (or such earlier date on which the Total Revolving
Loan Commitment shall have been terminated).
(b) The Borrower agrees to pay to the Agent for distribution to each
Bank (based on each such Bank's respective RL Percentage) a fee in respect of
each Letter of Credit issued hereunder (the "Letter of Credit Fee") for the
period from and including the date of issuance of such Letter of Credit to and
including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Eurodollar Rate Margin then
in effect on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the first day after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to each Issuing Bank, for its own
account, a facing or fronting fee in respect of each Letter of Credit issued by
such Issuing Bank hereunder upon such terms and conditions as are separately
agreed to between such Issuing Bank and the Borrower.
(d) The Borrower agrees to pay to each Issuing Bank, for its own
account, upon each payment under, issuance of, or amendment to, any Letter of
Credit, such amount as shall at the time of such event be the administrative
charge and the reasonable expenses which such Issuing Bank is generally imposing
in connection with such occurrence with respect to letters of credit.
(e) The Borrower agrees to pay to the Agent, for its own account,
such other fees as have been agreed to in writing by the Borrower and the Agent.
(f) Fees which accrued under the Original Credit Agreement prior to
the Restatement Effective Date but which remain unpaid on such date (and which
were not required to be paid on or prior to such date in accordance with the
terms of the Original Credit Agreement or this Agreement) shall be payable at
the times otherwise provided above (but calculated at the respective rates
provided in the Original Credit Agreement for periods occurring prior to the
Restatement Effective Date) for the respective Fees involved.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at
least one Business Day's prior written notice to the Agent at the Notice Office
(which notice the Agent shall promptly transmit to each of the Banks), the
Borrower shall have the right, at any time or from time to time, without premium
or penalty, to terminate the Total Unutilized Revolving Loan Commitment, in
whole or in part, pursuant to this Section 3.02(a), in an integral multiple of
$1,000,000, in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that each such reduction shall apply proportionately
to permanently reduce the Revolving Loan Commitment of each Bank.
(b) In the event of a refusal by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 13.12(b), the Borrower may, subject to its compliance with
the requirements of Section 13.12(b), upon five Business Days' prior written
notice to the Agent at the Notice Office (which notice the Agent shall promptly
transmit to each of the Banks) terminate the Revolving Loan Commitment of such
Bank, so long as all Revolving Loans, together with accrued and unpaid interest,
Fees and all other amounts, owing to such Bank are repaid concurrently with the
effectiveness of such termination pursuant to Section 4.01(b) (at which time
Schedule I shall be deemed modified to reflect such changed amounts), and at
such time, such Bank shall no longer constitute a "Bank" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and
13.01), which shall survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Revolving
Loan Commitment (and the Revolving Loan Commitment of each Bank) shall terminate
in their entirety on March 31, 1998 unless the Restatement Effective Date has
occurred on or before such date, and in the event of such termination this
Agreement shall cease to be of any force or effect and the Original Credit
Agreement shall continue to be effective, as the same may have been, or may
thereafter be, amended, modified or supplemented from time to time.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Restatement Effective Date on
which the Borrower or any of its Subsidiaries receives Cash Proceeds from any
Asset Sale, the Total Revolving Loan Commitment shall be permanently reduced on
such date by an amount equal to 100% of the Net Sale Proceeds from such Asset
Sale, provided that such Net Sale Proceeds shall not give rise to a reduction to
the Total Revolving Loan Commitment pursuant to this Section 3.03(b) on such
date to the extent that no Default or Event of Default then exists and such Net
Sale Proceeds shall be used to purchase assets used or to be used in the
businesses permitted pursuant to Section 9.14 (including, without limitation
(but only to the extent permitted by Section 9.02), the purchase of the assets
or 100% of the capital stock of a Person engaged in such businesses) within 270
days following the date of receipt of such Net Sale Proceeds from such Asset
Sale, and provided further, that if all or any portion of such Net Sale Proceeds
are not so used within such 270 day period (or such earlier date, if any, as the
Board of Directors of the Borrower or such Subsidiary, as the case may be,
determines not to reinvest such Net Sale Proceeds), the Total Revolving Loan
Commitment shall be permanently reduced on the last day of such period (or such
earlier date, as the case may be) by an amount equal to such remaining portion.
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Restatement Effective Date on
which the Borrower or any of its Subsidiaries receives any cash proceeds from
any incurrence of Indebtedness for borrowed money (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as such Section is in effect
on the Restatement Effective Date) by the Borrower or any of its Subsidiaries,
the Total Revolving Loan Commitment shall be permanently reduced on such date by
an amount equal to 100% of the Net Debt Proceeds of the respective incurrence of
Indebtedness.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, within 10 days following each date on or after the
Restatement Effective Date on which the Borrower or any of its Subsidiaries
receives any cash proceeds from any Recovery Event, the Total Revolving Loan
Commitment shall be permanently reduced on such date by an amount equal to 100%
of the Net Insurance Proceeds of such Recovery Event, provided that so long as
no Default or Event of Default then exists and such proceeds from such Recovery
Event do not exceed $10,000,000, such proceeds shall not give rise to a
reduction to the Total Revolving Loan Commitment pursuant to this Section
3.03(d) on such date to the extent that the Borrower has delivered a certificate
to the Agent on or prior to such date stating that such proceeds shall be used
to replace or restore any properties or assets in respect of which such proceeds
were paid within 270 days following the date of receipt of such proceeds (which
certificate shall set forth the estimates of the proceeds to be so expended),
and provided further, that (i) if the amount of such proceeds exceeds
$10,000,000, then the Total Revolving Loan Commitment shall be reduced by the
entire amount of such proceeds and not just the portion in excess of $10,000,000
as provided above in this Section 3.03(d), and (ii) if all or any portion of
such proceeds are not so used within such 270 day period (or such earlier date,
if any, as the Board of Directors of the Borrower or such Subsidiary, as the
case may be, determines not to reinvest such Net Insurance Proceeds), the Total
Revolving Loan Commitment shall be permanently reduced on the last day of such
period (or such earlier date, as the case may be) by an amount equal to such
remaining portion.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Bank) shall terminate in its entirety on the earlier of
(i) the date on which a Change of Control occurs and (ii) the Final Maturity
Date.
(f) Each reduction to the Total Revolving Loan Commitment pursuant to
this Section 3.03 shall apply proportionately to reduce the Revolving Loan
Commitment of each Bank.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right
to prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Agent prior to 12:00 Noon (New York time) at the Notice Office
(x) at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Base Rate Loans (or same
day notice in the case of a prepayment of Swingline Loans) and (y) at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, the amount of
such prepayment and the Types of Loans to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made,
which notice the Agent shall, except in the case of Swingline Loans, promptly
transmit to each of the Banks; (ii) each prepayment of Revolving Loans pursuant
to this Section 4.01(a) shall be in an aggregate principal amount of at least
$500,000 and each prepayment of Swingline Loans pursuant to this Section 4.01(a)
shall be in an aggregate principal amount of at least $50,000, provided that if
any partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of Eurodollar
Loans and any election of an Interest Period with respect thereto given by the
Borrower shall have no force or effect; and (iii) each prepayment pursuant to
this Section 4.01(a) in respect of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans, provided that at
the Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01(a), such prepayment shall not be applied to any
Revolving Loan of a Defaulting Bank.
(b) In the event of a refusal by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 13.12(b), the Borrower may, upon five Business Days' prior
written notice to the Agent at the Notice Office (which notice the Agent shall
promptly transmit to each of the Banks), repay all Revolving Loans of such Bank,
together with accrued and unpaid interest, Fees and other amounts owing to such
Bank in accordance with, and subject to the requirements of, said
Section 13.12(b) so long as (A) the Revolving Loan Commitment of such Bank is
terminated concurrently with such repayment pursuant to Section 3.02(b) (at
which time Schedule I shall be deemed modified to reflect the changed Revolving
Loan Commitments) and (B) the consents, if any, required under Section 13.12(b)
in connection with the repayment pursuant to this clause (b) have been obtained.
4.02 Mandatory Repayments. (a) (i) On any day on which the sum of
(I) the aggregate outstanding principal amount of all Revolving Loans (after
giving effect to all other repayments thereof on such date), (II) the aggregate
outstanding principal amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of all
Letter of Credit Outstandings exceeds either (A) the Borrowing Base at such time
(based on the Borrowing Base Certificate last delivered) or (B) the Total
Revolving Loan Commitment as then in effect, the Borrower shall prepay on such
day the principal of Swingline Loans and, after all Swingline Loans have been
repaid in full, Revolving Loans in an amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Swingline Loans and Revolving
Loans, the aggregate amount of the Letter of Credit Outstandings exceeds either
(A) the Borrowing Base at such time (based on the Borrowing Base Certificate
last delivered) or (B) the Total Revolving Loan Commitment as then in effect,
the Borrower shall pay to the Agent at the Payment Office on such day an amount
of cash and/or Cash Equivalents equal to the amount of such excess (up to a
maximum amount equal to the Letter of Credit Outstandings at such time), such
cash and/or Cash Equivalents to be held as security for all obligations of the
Borrower to the Issuing Banks and the Banks hereunder in a cash collateral
account to be established by the Agent.
(ii) On any day on which the aggregate amount of all Letter of Credit
Outstandings exceeds $25,000,000, the Borrower shall pay to the Agent at the
Payment Office on such day an amount of cash and/or Cash Equivalents equal to
the amount of such excess, such cash and/or Cash Equivalents to be held as
security for all obligations of the Borrower to the Issuing Banks and the Banks
hereunder in a cash collateral account to be established by the Agent.
(iii) On any day on which Letters of Credit issued in a currency
other than Dollars are outstanding and the aggregate amount of all Letter of
Credit Outstandings in respect of all non-Dollar denominated Letters of Credit
exceeds $10,000,000, the Borrower shall pay to the Agent at the Payment Office
on such day an amount of cash and/or Cash Equivalents equal to the amount of
such excess, such cash and/or Cash Equivalents to be held as security for all
obligations of the Borrower to the Issuing Banks and the Banks hereunder in a
cash collateral account to established by the Agent.
(b) With respect to each repayment of Revolving Loans required by
this Section 4.02, the Borrower may designate the Types of Revolving Loans which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar
Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required repayment and all Base Rate Loans have
been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Revolving Loans made pursuant to a Borrowing shall be applied pro rata among
such Revolving Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Agent shall, subject to the above, make
such designation in its sole discretion.
(c) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, (i) all then outstanding Revolving
Loans shall be repaid in full on the Final Maturity Date, (ii) all then
outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date
and (iii) all then outstanding Loans shall be repaid in full on the date on
which a Change of Control occurs.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Note shall be
made to the Agent for the account of the Bank or Banks entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
Dollars in immediately available funds at the Payment Office. Whenever any
payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Bank, upon the written request of such Bank,
for taxes imposed on or measured by the net income or net profits of such Bank
pursuant to the laws of the jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank,
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Agent within
45 days after the date the payment of any Taxes is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Agent on or prior to the Restatement
Effective Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and
(y) two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition, each
Bank agrees that from time to time after the Restatement Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, such Bank will deliver to the
Borrower and the Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms), or Form W-8 (or
successor form) and a Section 4.04(b)(ii) Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or such Bank shall immediately notify the Borrower and the Agent of its
inability to deliver any such Form or Certificate, in which case such Bank shall
not be required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
Fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Bank in respect of income or similar taxes imposed by the United
States if (I) such Bank has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay any
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes after
the Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
SECTION 5. Conditions Precedent to the Restatement Effective Date.
The occurrence of the Restatement Effective Date pursuant to Section 13.10 is
subject to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes On or prior to the Restatement
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the Agent
for the account of each of the Banks the appropriate Revolving Note executed by
the Borrower and to the Swingline Bank, the Swingline Note executed by the
Borrower, in each case, in the amount, maturity and as otherwise provided
herein.
5.02 Officer's Certificate. On the Restatement Effective Date, the
Agent shall have received a certificate, dated the Restatement Effective Date
and signed on behalf of the Borrower by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Borrower,
certifying on behalf of the Borrower that all of the conditions in Sections
5.05, 5.06, 5.07 and 6.02 have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date, the
Agent shall have received (i) from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, special counsel
to the Credit Parties, an opinion addressed to the Agent, the Collateral Agent
and each of the Banks and dated the Restatement Effective Date covering the
matters set forth in Exhibit E-1 and such other matters incident to the
transactions contemplated herein as the Agent may reasonably request, (ii) from
the Corporate Counsel of the Borrower, an opinion addressed to the Agent, the
Collateral Agent and each of the Banks and dated the Restatement Effective Date
covering the matters set forth in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agent may reasonably request, and
(iii) from the respective counsel to the Credit Parties, reliance letters
entitling the Agent and the Banks to rely on the opinions of counsel delivered
on behalf of the Credit Parties in connection with the issuance of the Senior
Subordinated Notes.
5.04 Corporate Documents; Proceedings; etc. (a) On the Restatement
Effective Date, the Agent shall have received a certificate from each Credit
Party, dated the Restatement Effective Date, signed on behalf of such Credit
Party by the Chairman of the Board, the Chief Executive Officer, the President
or any Vice President of such Credit Party, and attested to by the Secretary or
any Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate or articles of
incorporation (or equivalent organizational document) and by-laws of such Credit
Party (but only to the extent that any such organizational documents have been
modified since the Effective Date) and the resolutions of such Credit Party
referred to in such certificate, and the foregoing shall be in form and
substance reasonably acceptable to the Agent.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and substance
to the Agent and the Required Banks, and the Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Agent reasonably may have
requested in connection therewith, such documents and papers where appropriate
to be certified by proper corporate or governmental authorities.
5.05 Senior Subordinated Notes; etc. (a) On the Restatement
Effective Date, (i) the Borrower shall have received gross cash proceeds of
$100,000,000 from the issuance by it of a like principal amount of the Senior
Subordinated Notes and (ii) the Borrower shall have utilized 100% of the Net
Debt Proceeds from such issuance to repay outstanding Original Swingline Loans
and outstanding Original Revolving Loans, together with accrued and unpaid
interest thereon and any amounts that may be owing to the Banks pursuant to
Section 1.11 of the Original Credit Agreement in connection with such repayment.
(b) On or prior to the Restatement Effective Date, there shall have
been delivered to the Agent true and correct copies of the Senior Subordinated
Note Documents, and all of the terms and conditions of the Senior Subordinated
Note Documents shall be in substantial conformity with the description thereof
contained in the Senior Subordinated Note Offering Memorandum and as to matters
or specific terms not so described shall be reasonably satisfactory to the Agent
and the Required Banks. All conditions precedent to the issuance of the Senior
Subordinated Notes as set forth in the Senior Subordinated Note Documents shall
have been satisfied, and not waived, to the satisfaction of the Agent. The
issuance of the Senior Subordinated Notes shall have been consummated in all
material respects in accordance with the terms and conditions of the Senior
Subordinated Note Documents and all applicable laws.
5.06 Adverse Change, etc. (a) Nothing shall have occurred (and
neither the Agent nor the Banks shall have become aware of any facts or
conditions not previously known) which the Agent or the Required Banks shall
reasonably determine (a) has had, or could reasonably be expected to have, a
material adverse effect on the rights or remedies of the Banks or the Agent, or
on the ability of any Credit Party to perform its obligations to the Banks or
the Agent hereunder or under any other Credit Document or (b) has had, or could
reasonably be expected to have, a material adverse effect on the Refinancing or
on the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of the Borrower or any of its Subsidiaries.
(b) On or prior to the Restatement Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the transactions contemplated by this Agreement and the other
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the transactions contemplated by this Agreement and the
other Documents or otherwise referred to herein or therein.
5.07 Litigation. On the Restatement Effective Date, there shall be
no actions, suits or proceedings pending or threatened (i) with respect to this
Agreement or any other Document or (ii) which the Agent or the Required Banks
shall reasonably determine could reasonably be expected to have a material
adverse effect on (a) the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or any of its
Subsidiaries, (b) the rights or remedies of the Banks or the Agent hereunder or
under any other Credit Document or (c) the ability of any Credit Party to
perform its respective obligations to the Banks or the Agent hereunder or under
any other Credit Document.
5.08 Pledge Agreement. On the Restatement Effective Date, each
Credit Party shall have duly authorized, executed and delivered an amended and
restated Pledge Agreement in the form of Exhibit G (as amended, modified or
supplemented from time to time, the "Pledge Agreement") and shall have delivered
to the Collateral Agent, as Pledgee thereunder, all of the Pledged Securities,
if any, referred to therein and owned by such Credit Party, (x) endorsed in
blank in the case of Intercompany Notes constituting Pledged Securities and (y)
together with executed and undated stock powers in the case of capital stock
constituting Pledged Securities.
5.09 Security Agreement. On the Restatement Effective Date, each
Credit Party shall have duly authorized, executed and delivered the Security
Agreement in the form of Exhibit H (as modified, supplemented or amended from
time to time, the "Security Agreement") covering all of such Credit Party's
present and future Security Agreement Collateral, together with:
(i) proper Financing Statements (Form UCC-1 or the equivalent) fully
executed for filing under the UCC or other appropriate filing offices of
each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form UCC-
11), or equivalent reports, listing all effective financing statements that
name any Credit Party as debtor and that are filed in the jurisdictions
referred to in clause (i) above, together with copies of such other
financing statements that name any Credit Party as debtor (none of which
shall cover the Collateral except to the extent evidencing Permitted Liens
or in respect of which the Collateral Agent shall have received termination
statements (Form UCC-3 or the equivalent) as shall be required by local law
fully executed for filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be necessary
to perfect the security interests intended to be created by the Security
Agreement; and
(iv) evidence that all other actions necessary to perfect and protect
the security interests purported to be created by the Security Agreement
have been taken.
5.10 Subsidiaries Guaranty. On the Restatement Effective Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered an
amended and restated Subsidiaries Guaranty in the form of Exhibit I (as amended,
modified or supplemented from time to time, the "Subsidiaries Guaranty").
5.11 Financial Statements; Pro Forma Balance Sheet; Projections. On
or prior to the Restatement Effective Date, the Agent shall have received true
and correct copies of the historical financial statements, the pro forma balance
sheet and the Projections referred to in Sections 7.05(a) and (d), which
historical financial statements, pro forma balance sheet and Projections shall
be in form and substance reasonably satisfactory to the Agent and the Required
Banks.
5.12 Solvency Certificate. On the Restatement Effective Date, the
Borrower shall have delivered to the Agent a solvency certificate from the Chief
Financial Officer of the Borrower in the form of Exhibit J.
5.13 Initial Borrowing Base Certificate. On the Restatement
Effective Date, the Agent shall have received the initial Borrowing Base
Certificate meeting the requirements of Section 8.01(i).
5.14 Fees, etc. On the Restatement Effective Date, the Borrower
shall have paid to the Agent and each Bank all costs, fees and expenses
(including, without limitation, reasonable legal fees and expenses) payable to
the Agent and such Bank to the extent then due, including, in the case of each
Bank, the commitment fee due to such Bank in accordance with the table set forth
in the letter dated February 13, 1998 from the Agent to the Banks.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Bank to make Loans (including Loans made on the Restatement Effective
Date), and the obligation of each Issuing Bank to issue Letters of Credit, is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 Restatement Effective Date. The Restatement Effective Date
shall have occurred.
6.02 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior to
the making of each Revolving Loan (other than a Revolving Loan made pursuant to
a Mandatory Borrowing), the Agent shall have received a Notice of Borrowing
meeting the requirements of Section 1.03(a). Prior to the making of each
Swingline Loan, the Swingline Bank shall have received the notice referred to in
Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Agent and the
respective Issuing Bank shall have received a Letter of Credit Request meeting
the requirements of Section 2.03.
The occurrence of the Restatement Effective Date and the acceptance of
the benefits of each Credit Event shall constitute a representation and warranty
by the Borrower to the Agent and each of the Banks that all the conditions
specified in Section 5 (with respect to the Restatement Effective Date and
Credit Events to occur on the Restatement Effective Date) and in this Section 6
(with respect to the Restatement Effective Date and Credit Events to occur on or
after the Restatement Effective Date) and applicable to such Credit Event exist
as of that time. All of the Notes, certificates, legal opinions and other
documents and papers referred to in Section 5 and in this Section 6, unless
otherwise specified, shall be delivered to the Agent at the Notice Office for
the account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks and shall be in form and substance
satisfactory to the Agent and the Required Banks.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, the Borrower makes
the following representations, warranties and agreements, in each case after
giving effect to the Restatement Effective Date, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of the
Restatement Effective Date and the occurrence of each Credit Event on or after
the Restatement Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 7 are true and correct on
and as of the Restatement Effective Date and on the date of each such Credit
Event (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct only as of such specified date).
7.01 Corporate Status. Each of the Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization, (ii) has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
7.02 Corporate and Other Power and Authority. Each Credit Party has
the corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of each of such Documents. Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such Documents
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the property or assets of the Borrower or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material agreement, contract or
instrument, to which the Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be subject
or (iii) will violate any provision of the certificate or articles of
incorporation or by-laws (or equivalent organizational documents) of the
Borrower or any of its Subsidiaries.
7.04 Approvals. No order, consent, approval, license, authorization
or validation of, or filing, recording or registration with (except for those
that have otherwise been obtained or made on or prior to the Restatement
Effective Date and which remain in full force and effect on the Restatement
Effective Date), or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required by any Credit Party to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Document by any Credit Party or (ii) the legality, validity, binding effect or
enforceability of any such Document against any Credit Party.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended on December 31, 1997,
and the related consolidated statements of income, cash flows and shareholders'
equity of the Borrower and its Subsidiaries for the fiscal year ended on such
date, copies of which have been furnished to the Banks on or prior to the
Restatement Effective Date, present fairly in all material respects the
consolidated financial position of the Borrower and its Subsidiaries at the
dates of such balance sheet and the consolidated results of the operations of
the Borrower and its Subsidiaries for the periods covered thereby. All of the
foregoing financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied. The pro forma consolidated
balance sheet of the Borrower and its Subsidiaries as of December 31, 1997 and
after giving effect to the Restatement Effective Date, a copy of which has been
furnished to the Banks on or prior to the Restatement Effective Date, presents
fairly in all material respects the pro forma consolidated financial position of
the Borrower and its Subsidiaries as of December 31, 1997. Since December 31,
1997, there has been no material adverse change in the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
(b) On and as of the Restatement Effective Date and after giving
effect thereto, (a) the sum of the assets, at a fair valuation, of each of the
Borrower on a stand-alone basis and of the Borrower and its Subsidiaries taken
as a whole will exceed its debts; (b) each of the Borrower on a stand-alone
basis and the Borrower and its Subsidiaries taken as a whole has not incurred
and does not intend to incur, and does not believe that it will incur, debts
beyond its ability to pay such debts as such debts mature; and (c) each of the
Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a
whole will have sufficient capital with which to conduct its business. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a pay
ment, whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Restatement Effective Date no
liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
could reasonably be expected to be material to the Borrower and its Subsidiaries
taken as a whole. As of the Restatement Effective Date, the Borrower does not
know of any basis for the assertion against it or any of its Subsidiaries of any
liability or obligation of any nature whatsoever that is not fully disclosed in
the financial statements delivered pursuant to Section 7.05(a) which, either
individually or in the aggregate, could reasonably be expected to be material to
the Borrower and its Subsidiaries taken as a whole.
(d) On and as of the Restatement Effective Date, the Projections
delivered to the Agent and the Banks prior to the Restatement Effective Date
have been prepared in good faith and are based on reasonable assumptions, and
there are no statements or conclusions in the Projections which are based upon
or include information known to the Borrower to be misleading in any material
respect or which fail to take into account material information known to the
Borrower regarding the matters reported therein. On the Restatement Effective
Date, the Borrower believes that the Projections are reasonable and attainable,
it being recognized by the Banks, however, that projections as to future events
are not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results and
that the differences may be material.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Borrower, threatened (i) with respect to this
Agreement or any other Credit Document, (ii) with respect to any material
Indebtedness of the Borrower or any of its Subsidiaries or (iii) that are
reasonably likely to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of any Credit Party in writing to the Agent
or any Bank (including, without limitation, all information contained in the
Documents) for purposes of or in connection with this Agreement, the other
Credit Documents or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of any Credit Party in writing to the Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Revolving Loans and the Swingline Loans shall be used for the working capital
and general corporate purposes of the Borrower and its Subsidiaries (including,
without limitation, for Permitted Acquisitions).
(b) No part of any Credit Event (or the proceeds thereof) will be
used to purchase or carry any Margin Stock or to extend credit for the purpose
of purchasing or carrying any Margin Stock except in connection with the
repurchase of shares of stock of the Borrower as permitted by Section 9.03. The
value of all Margin Stock at any time owned by the Borrower and its Subsidiaries
does not, and will not, exceed 25% of the value of the assets of the Borrower
and its Subsidiaries taken as a whole. Neither the making of any Loan nor the
use of the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of the Borrower and each of its
Subsidiaries has filed all federal and state income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and fully provided for on
the financial statements of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles. The Borrower and each of its
Subsidiaries have paid, or have provided adequate reserves (in the good faith
judgment of the management of the Borrower) for the payment of, all federal,
state, local and foreign income taxes applicable for all prior fiscal years and
for the current fiscal year to date. There is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
the Borrower threatened, by any authority regarding any taxes relating to the
Borrower or any of its Subsidiaries. As of the Restatement Effective Date,
neither the Borrower nor any of its Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of the
Borrower or any of its Subsidiaries, or is aware of any circumstances that would
cause the taxable years or other taxable periods of the Borrower or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations.
7.10 Compliance with ERISA. (i) Each Plan (and each related trust,
insurance contract or fund) is in substantial compliance with its terms and with
all applicable laws, including without limitation ERISA and the Code; each Plan
(and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code; no Reportable Event has occurred and is continuing; no Plan
which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is
insolvent or in reorganization; no Plan has an Unfunded Current Liability; no
Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the Code
or ERISA, or has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions
required to be made with respect to a Plan have been made and no material
liability has occurred as a result of any failure to make any such contribution
in a timely manner; neither the Borrower nor any Subsidiary of the Borrower nor
any ERISA Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or, to the knowledge of
any executive officer of the Borrower or the highest ranking Human Resources
Officer of the Borrower, expects to incur any such material liability under any
of the foregoing sections with respect to any Plan; no condition exists which
presents a material risk to the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan which
is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending or, to
the knowledge of any executive officer of the Borrower or the highest ranking
Human Resources officer of the Borrower, expected or threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $500,000; each group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in substantial compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code and any failure to so comply would not result in a material liability; no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or, to the knowledge of
any executive officer of the Borrower or the highest ranking Human Resources
Officer of the Borrower, is likely to arise on account of any Plan; and the
Borrower and its Subsidiaries may cease contributions to or terminate any
employee benefit plan maintained by any of them without incurring any material
liability.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been made and no material liability has occurred as a result of any failure to
make any such contribution in a timely manner. Neither the Borrower nor any of
its Subsidiaries has incurred any obligation in connection with the termination
of or withdrawal from any Foreign Pension Plan. The present value of the
accrued benefit liabilities (whether or not vested) under each Foreign Pension
Plan, determined as of the end of the Borrower's most recently ended fiscal year
on the basis of actuarial assumptions, each of which is reasonable, did not
exceed the current value of the assets of such Foreign Pension Plan allocable to
such benefit liabilities.
7.11 The Security Documents. (a) The security interests created in
favor of the Collateral Agent, as Pledgee, for the benefit of the Secured
Creditors, under the Pledge Agreement constitute first priority perfected
security interests in the Pledged Securities described in the Pledge Agreement,
subject to no security interests of any other Person. No filings or recordings
are required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Pledged Securities under the Pledge Agreement.
(b) The provisions of the Security Agreement are effective to create
in favor of the Collateral Agent for the benefit of the Secured Creditors a
legal, valid and enforceable security interest in all right, title and interest
of the Credit Parties party thereto in the Security Agreement Collateral
described therein, and the Collateral Agent, for the benefit of the Secured
Creditors has a fully perfected first lien on, and security interest in, all
right, title and interest in all of the Security Agreement Collateral described
therein, subject to no other Liens other than Permitted Liens of the type
described in Section 9.01(i).
7.12 Properties. The Borrower and each of its Subsidiaries have good
and marketable title to all material properties owned by them, including all
property reflected in the balance sheets referred to in Section 7.05(a) (except
as sold or otherwise disposed of since the date of such balance sheet in the
ordinary course of business or as permitted by the terms of this Agreement or
the Original Credit Agreement), free and clear of all Liens, other than
Permitted Liens.
7.13 Capitalization. On the Restatement Effective Date, the
authorized capital stock of the Borrower shall consist of 200,000,000 shares of
common stock, $.001 par value per share. All outstanding shares of capital
stock of the Borrower have been duly and validly issued and are fully paid and
non-assessable. The Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, except
for options or warrants to purchase shares of the Borrower's common stock which
may be issued from time to time.
7.14 Subsidiaries. As of the Restatement Effective Date, the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule
III. Schedule III correctly sets forth, as of the Restatement Effective Date,
the percentage ownership (direct or indirect) of the Borrower in each class of
capital stock or other equity of each of its Subsidiaries and also identifies
the direct owner thereof.
7.15 Compliance with Statutes, etc. Each of the Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
7.16 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.17 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries 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, as amended.
7.18 Environmental Matters. (a) The Borrower and each of its
Subsidiaries have complied with, and on the date of each Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or, to the
best knowledge of the Borrower, threatened Environmental Claims against the
Borrower or any of its Subsidiaries (including any such claim arising out of the
ownership or operation by the Borrower or any of its Subsidiaries of any Real
Property no longer owned or operated by the Borrower or any of its Subsidiaries)
or any Real Property owned or operated by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences with
respect to the business or operations of the Borrower or any of its
Subsidiaries, or any Real Property owned or operated by the Borrower or any of
its Subsidiaries (including any Real Property formerly owned or operated by the
Borrower or any of its Subsidiaries but no longer owned or operated by the
Borrower or any of its Subsidiaries) or any property adjoining or adjacent to
any such Real Property that could be expected (i) to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or any Real
Property owned or operated by the Borrower or any of its Subsidiaries or (ii) to
cause any Real Property owned or operated by the Borrower or any of its
Subsidiaries to be subject to any restrictions on the ownership, occupancy or
transferability of such Real Property by the Borrower or any of its Subsidiaries
under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries where such generation, use,
treatment or storage has violated or could be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by the Borrower or any of its
Subsidiaries where such Release has violated or could be expected to violate any
applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section 7.18 the
representations made in this Section 7.18 shall not be untrue unless the
aggregate effect of all violations, claims, restrictions, failures and
noncompliances of the types described above could reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
7.19 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Borrower and its Subsidiaries
taken as a whole. There is (i) no unfair labor practice complaint pending
against the Borrower or any of its Subsidiaries or threatened against any of
them, before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries and (iii) no union representation question
exists with respect to the employees of the Borrower or any of its Subsidiaries,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of the
Borrower and each of its Subsidiaries owns or has the right to use all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including but not limited to rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to result in a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
7.21 Indebtedness. Schedule IV sets forth a true and complete list
of all Indebtedness (including Contingent Obligations) of the Borrower and its
Subsidiaries as of the Restatement Effective Date (excluding the Loans, the
Letters of Credit and the Senior Subordinated Notes, the "Existing
Indebtedness"), in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any Credit Party or any of its
Subsidiaries which directly or indirectly guarantees such debt.
7.22 Senior Subordinated Notes. (a) The subordination provisions
contained in the Senior Subordinated Notes and in the other Senior Subordinated
Note Documents are enforceable against the respective Credit Parties party
thereto and the holders of the Senior Subordinated Notes, and all Obligations
and Guaranteed Obligations (as defined in the Subsidiaries Guaranty) are within
the definition of "Senior Debt" or "Guarantor Senior Debt," as the case may be,
included in such subordination provisions.
(b) All representations and warranties set forth in the Senior
Subordinated Documents were true and correct in all material respects at the
time as of which such representations and warranties were made (or deemed made)
and shall be true and correct in all material respects as of the Restatement
Effective Date as if such representations and warranties were made on and as of
such date, unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
agrees that on and after the Restatement Effective Date and until the Total
Revolving Loan Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Bank:
(a) Quarterly Financial Statements. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of the
Borrower, the consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at the end of such quarterly accounting period and the
related consolidated and consolidating statements of income and retained
earnings and statement of cash flows for such quarterly accounting period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, in each case setting forth comparative figures for
the related periods in the prior fiscal year, all of which shall be certified by
the Chief Financial Officer of the Borrower, subject to normal year-end audit
adjustments and the absence of footnotes.
(b) Annual Financial Statements. Within 90 days after the close of
each fiscal year of the Borrower, (i) the consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal year
and the related consolidated and consolidating statements of income and retained
earnings and statement of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and (x) in the case of the
consolidated financial statements, certified by KPMG Peat Marwick LLP or such
other independent certified public accountants of recognized national standing
reasonably acceptable to the Agent, together with a report of such accounting
firm stating that in the course of its regular audit of the financial statements
of the Borrower and its Subsidiaries, which audit was conducted in accordance
with generally accepted auditing standards, such accounting firm obtained no
knowledge of any Default or an Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement as to the nature thereof
and (y) in the case of the consolidating financial statements, certified by the
Chief Financial Officer of the Borrower and (ii) management's discussion and
analysis of the important operational and financial developments during such
fiscal year.
(c) Management Letters. Promptly after the Borrower's or any of its
Subsidiaries' receipt thereof, a copy of any "management letter" received from
its certified public accountants and management's response thereto.
(d) Budgets. No later than 30 days following the first day of each
fiscal year of the Borrower, a budget in form reasonably satisfactory to the
Agent (including budgeted statements of income and sources and uses of cash and
balance sheets) prepared by the Borrower for each of the twelve months of such
fiscal year prepared in detail setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a certificate of
the Chief Financial Officer of the Borrower to the effect that, to the best of
such officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate shall
set forth in reasonable detail the calculations required to establish (A)
whether the Borrower and its Subsidiaries were in compliance with the provisions
of Sections 3.03(b), 3.03(d), 9.03, 9.04, 9.05 and 9.07 through 9.10, inclusive,
at the end of such fiscal quarter or year, as the case may be and (B) the
Applicable Eurodollar Rate Margin for the Margin Reduction Period commencing
with the date of the delivery of such financial statements.
(f) Notice of Default or Litigation. Promptly upon, and in any event
within three Business Days after, an officer of any Credit Party obtains
knowledge thereof, notice of (i) the occurrence of any event which constitutes a
Default or an Event of Default and/or (ii) any litigation or governmental
investigation or proceeding pending (x) against the Borrower or any of its
Subsidiaries which could reasonably be expected to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole, (y) with respect to any material Indebtedness of the Borrower or any
of its Subsidiaries or (z) with respect to any Credit Document.
(g) Other Reports and Filings. Promptly after the filing or delivery
thereof, copies of all reports on Forms 10-K, 10-Q and 8-K and all proxy
materials, if any, which the Borrower or any of its Subsidiaries shall publicly
file with the Securities and Exchange Commission or any successor thereto (the
"SEC").
(h) Environmental Matters. Promptly after any officer of any Credit
Party obtains knowledge thereof, notice of one or more of the following
environmental matters, unless such environmental matters could not, individually
or when aggregated with all other such environmental matters, be reasonably
expected to materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property
owned or operated by the Borrower or any of its Subsidiaries that (a)
results in noncompliance by the Borrower or any of its Subsidiaries with
any applicable Environmental Law or (b) could be expected to form the basis
of an Environmental Claim against the Borrower or any of its Subsidiaries
or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could be expected
to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned or operated by the Borrower or any of its Subsidiaries as required by
any Environmental Law or any governmental or other administrative agency;
provided, that in any event the Borrower shall deliver to each Bank all
notices received by the Borrower or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA which
identify the Borrower or any of its Subsidiaries as potentially responsible
parties for remediation costs or which otherwise notify the Borrower or any
of its Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action and
the Borrower's or such Subsidiary's response thereto.
(i) Borrowing Base Certificate. (x) On the Restatement Effective
Date and (y) not later than 3:00 P.M. (New York time) on the fifteenth day of
each fiscal month of the Borrower thereafter, a borrowing base certificate in
the form of Exhibit K (each, a "Borrowing Base Certificate"), which shall be
prepared (A) as of January 31, 1998 in the case of the initial Borrowing Base
Certificate and (B) as of the last Business Day of the preceding fiscal month in
the case of each subsequent monthly Borrowing Base Certificate, in each case
certified by the Chief Financial Officer of the Borrower.
(j) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as the Agent or any Bank may reasonably request.
8.02 Books, Records and Inspections; Annual Meetings.
(a) The Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and accounts in which full, true and correct entries
in conformity with generally accepted accounting principles and all requirements
of law shall be made of all dealings and transactions in relation to its
business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the Agent or
any Bank to visit and inspect, under guidance of officers of the Borrower or
such Subsidiary, any of the properties of the Borrower or such Subsidiary, and
to examine the books of account of the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the Borrower or such Subsidiary with, and
be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Agent or such Bank may reasonably request. In addition, the
Borrower will, and will cause each of the Subsidiary Guarantors to, permit upon
reasonable prior notice to the Borrower the Agent to conduct, at Borrower's
expense, an audit of the accounts receivable of the Credit Parties at such times
(but no more frequently than once a year unless an Event of Default shall have
occurred and be continuing) as the Agent shall reasonably require.
(b) At a date to be mutually agreed upon between the Agent and the
Borrower occurring on or prior to the 120th day after the close of each fiscal
year of the Borrower, the Borrower shall, at the request of the Agent, hold a
meeting with all of the Banks at which meeting shall be reviewed the financial
results of the Borrower and its Subsidiaries for the previous fiscal year and
the budgets presented for the current fiscal year of the Borrower.
8.03 Maintenance of Property; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (i) keep all property necessary to the
business of the Borrower and its Subsidiaries in reasonably good working order
and condition, ordinary wear and tear excepted, (ii) maintain insurance in at
least such amounts and against at least such risks as is consistent and in
accordance with industry practice for companies similarly situated owning
similar properties in the same general areas in which the Borrower or any of its
Subsidiaries operates, and (iii) furnish to the Agent or any Bank, upon written
request, full information as to the insurance carried. If the Borrower or any
of its Subsidiaries shall fail to maintain insurance in accordance with this
Section 8.03, the Agent shall have the right (but shall be under no obligation)
to procure such insurance and the Borrower agrees to reimburse the Agent for all
costs and expenses of procuring such insurance.
8.04 Corporate Franchises. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets and other transactions by the
Borrower or any of its Subsidiaries in accordance with Section 9.02 or (ii) the
withdrawal by the Borrower or any of its Subsidiaries of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
8.05 Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances (x) as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
(y) as are being contested in good faith by the Borrower or such Subsidiary
through appropriate proceedings which are being diligently prosecuted.
8.06 Compliance with Environmental Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned or operated by the Borrower or any of its Subsidiaries, will
promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to such Environmental Laws.
Neither the Borrower nor any of its Subsidiaries will generate, use, treat,
store, Release or dispose of, or permit the generation, use, treatment, storage,
Release or disposal of Hazardous Materials on any Real Property now or hereafter
owned or operated by the Borrower or any of its Subsidiaries, or transport or
permit the transportation of Hazardous Materials to or from any such Real
Property, except for Hazardous Materials generated, used, treated, stored,
Released or disposed of at any such Real Properties in compliance in all
material respects with all applicable Environmental Laws and reasonably required
in connection with the operation, use and maintenance of the business or
operations of the Borrower or any of its Subsidiaries.
8.07 ERISA. As soon as possible and, in any event, within ten (10)
days after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
knows of the occurrence of any of the following, the Borrower will deliver to
each of the Banks a certificate of the Chief Financial Officer of the Borrower
setting forth the full details as to such occurrence and the action, if any,
that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has
previously delivered to the Banks a certificate and notices (if any) concerning
such event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described
in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section
4043 is reasonably expected to occur with respect to such Plan within the
following 30 days; that an accumulated funding deficiency, within the meaning of
Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application may be or has been made for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code or Section 303 or 304
of ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a Plan
has been or may be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that a Plan has an Unfunded Current Liability; that
proceedings may be or have been instituted to terminate or appoint a trustee to
administer a Plan which is subject to Title IV of ERISA; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate will or may incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or
with respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that the
Borrower or any Subsidiary of the Borrower may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan or any Foreign
Pension Plan. Upon the request of the Agent, the Borrower will deliver to each
of the Banks a complete copy of the annual report (on Internal Revenue Service
Form 5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any certificates or notices delivered
to the Banks pursuant to the first sentence hereof, copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, and any material notices received
by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan shall be delivered to the Banks no
later than ten (10) days after the date such records, documents and/or
information has been furnished to the PBGC or such notice has been received by
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower will cause
(i) its fiscal year to end on December 31, and (ii) its fiscal quarters to end
on March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement, loan agreement or credit agreement
and each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims for sums that have become due and payable which,
if unpaid, might become a Lien not otherwise permitted under Section 9.01(i);
provided, that neither the Borrower nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves with respect thereto in accordance with generally accepted accounting
principles.
8.11 Pledge of Foreign Subsidiaries Stock. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Agent does not within 30 days after a
request from the Agent or the Required Banks deliver evidence, in form and
substance mutually satisfactory to the Agent and the Borrower, with respect to
any Foreign Subsidiary of the Borrower which has not already had all of its
stock pledged pursuant to the Pledge Agreement that a pledge of 66-2/3% or more
of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote could reasonably be expected to cause (I)
the undistributed earnings of such Foreign Subsidiary as determined for federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for federal income tax purposes or (II) other
material adverse federal income tax consequences to the Credit Parties, then in
the case of a failure to deliver the evidence described above, that portion of
such Foreign Subsidiary's outstanding capital stock owned by any Credit Party
and not theretofore pledged pursuant to the Pledge Agreement shall be pledged to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the
Pledge Agreement.
8.12 Margin Stock. The Borrower will, and will cause each of the
Subsidiary Guarantors to, take any and all actions as may be required to ensure
that no capital stock pledged, or required to be pledged, pursuant to the Pledge
Agreement shall constitute Margin Stock.
SECTION 9. Negative Covenants. The Borrower hereby covenants and
agrees that on and after the Restatement Effective Date and until the Total
Revolving Loan Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions of this
Section 9.01 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or not yet delinquent and payable without any penalty of
any kind or character or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate
proceedings for which adequate reserves have been established in accordance
with generally accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Borrower or such Subsidiary or
(y) which are being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of
the property or assets subject to any such Lien;
(iii) Liens permitted by Section 9.01 (iii) of the Original Credit
Agreement and in existence on the Restatement Effective Date which are
listed, and the property subject thereto described, in Schedule V, but only
to the respective date, if any, set forth in such Schedule V for the
removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on
Schedule V, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of the Borrower or any of its
Subsidiaries;
(iv) Liens created pursuant to the Security Documents;
(v) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(vi) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized
Lease Obligations are permitted by Section 9.04(iv), provided that (x) such
Liens only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (y) the Lien encumbering the asset giving
rise to the Capitalized Lease Obligation does not encumber any other asset
of the Borrower or any Subsidiary of the Borrower;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries at
the time of the acquisition thereof by the Borrower or any such Subsidiary
or within 90 days thereafter to secure Indebtedness incurred to pay all or
a portion of the purchase price thereof or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of any such equipment
or machinery or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that (x) such
Indebtedness is permitted by Section 9.04(iv) and (y) in all events, the
Lien encumbering the equipment or machinery so acquired does not encumber
any other asset of the Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with the
conduct of the business of the Borrower or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement filings
regarding operating leases;
(x) Liens arising out of the existence of judgments or awards in
respect of which the Borrower or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review in respect of
which there shall have been secured a subsisting stay of execution pending
such appeal or proceedings, provided that the aggregate amount of any cash
and the fair market value of any property subject to such Liens do not
exceed $3,000,000 at any time outstanding;
(xi) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xii) Liens placed upon any of the assets of a Foreign Subsidiary
of the Borrower to secure any Foreign Subsidiary Third Party Borrowings
directly incurred by such Foreign Subsidiary pursuant to Section 9.04(v),
provided that in all events the Lien encumbering such assets does not
encumber any asset of the Borrower or any other Subsidiary of the Borrower;
(xiii) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation claims,
unemployment insurance and social security benefits;
(xiv) Liens securing (x) the performance of bids, tenders, leases
and contracts in the ordinary course of business and (y) statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money), provided that
the aggregate outstanding amount of obligations secured by Liens permitted
by this clause
(xiv) (and the value of all cash and property encumbered by Liens
permitted pursuant to this clause (xiv)) shall not at any time exceed
$500,000; and
(xv) Liens on property or assets acquired pursuant to a Permitted
Acquisition or pursuant to an Investment made under Section 9.05(xv), or on
property or assets of a Subsidiary of the Borrower in existence at the time
such Subsidiary is acquired pursuant to a Permitted Acquisition or pursuant
to an Investment made under Section 9.05(xv), provided that (x) any
Indebtedness that is secured by such Liens is permitted to exist under
Section 9.04(x), and (y) such Liens are not incurred in connection with, or
in contemplation or anticipation of, such Permitted Acquisition or such
permitted Investment, as the case may be, and do not attach to any other
asset of the Borrower or any of its Subsidiaries.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall
be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales of
inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete
or worn-out equipment or materials in the ordinary course of business;
(iv) each of the Borrower and its Subsidiaries may sell or discount,
in each case without recourse and in the ordinary course of business,
accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof;
(v) each of the Borrower and its Subsidiaries may sell other assets
in the ordinary course of business in an aggregate amount not to exceed
$250,000 per sale or series of related sales, provided that no more than
$1,000,000 of such sales may be made pursuant to this clause (v) in any
fiscal year of the Borrower;
(vi) each of the Borrower and its Subsidiaries may sell other assets
so long as (i) no Default or no Event of Default then exists or would
result therefrom, (ii) each such sale is in an arm's-length transaction and
the Borrower or the respective Subsidiary receives at least fair market
value (as determined in good faith by the Borrower or such Subsidiary, as
the case may be), (iii) the total consideration received by the Borrower or
such Subsidiary is at least 90% cash and is paid at the time of the closing
of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or
reinvested as (and to the extent) required by Section 3.03(b) and (v) the
aggregate amount of the proceeds received from all assets sold pursuant to
this clause (vi) shall not exceed $5,000,000 in any fiscal year of the
Borrower;
(vii) Investments may be made to the extent permitted by Section
9.05;
(viii) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property (so long as any such lease does not
create a Capitalized Lease Obligation except to the extent permitted by
Section 9.04(iv));
(ix) the Borrower and its Wholly-Owned Subsidiaries may acquire all or
substantially all of the assets of any Person (or all or substantially all
of the assets of a product line or division of any Person) or 100% of the
capital stock of any Person (including by purchasing the remaining portion
of the capital stock of any Person in which the Borrower or a Wholly-Owned
Subsidiary thereof already has an ownership interest and as a result of
which such Person shall become a Wholly-Owned Subsidiary of the Borrower)
(any such acquisition permitted by this clause (ix), a "Permitted
Acquisition"), so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) each of the representations and warranties
contained in Section 7 shall be true and correct in all material respects
both before and after giving effect to such Permitted Acquisition, (iii)
any Liens or Indebtedness assumed or issued in connection with such
acquisition are otherwise permitted under Section 9.01 or 9.04, as the case
may be, (iv) the only consideration paid by the Borrower or any of its
Subsidiaries in connection with any Permitted Acquisition consists solely
of cash and/or common stock or Qualified Preferred Stock of the Borrower,
(v) at least 10 Business Days prior to the consummation of any Permitted
Acquisition, the Borrower shall deliver to the Agent and each of the Banks
a certificate of the Borrower's Chief Financial Officer certifying (and
showing the calculations therefor in reasonable detail) that the Borrower
would have been in compliance with the financial covenants set forth in
Sections 9.08, 9.09 and 9.10 for the Test Period then most recently ended
prior to the date of the consummation of such Permitted Acquisition, in
each case with such financial covenants to be determined on a pro forma
basis as if such Permitted Acquisition had been consummated on the first
day of such Test Period (and assuming that any Indebtedness incurred,
issued or assumed in connection therewith had been incurred, issued or
assumed on the first day of, and had remained outstanding throughout, such
Test Period), (vi) the aggregate cash consideration paid in connection with
any Permitted Acquisition (including, without limitation, any earn-out,
non-compete or deferred compensation arrangements and the aggregate
principal amount of any Indebtedness assumed in connection therewith) does
not exceed $25,000,000, provided that such amount shall be increased to
$35,000,000 to the extent that the Borrower's pro forma Leverage Ratio
after giving effect to such Permitted Acquisition is 2.50:1.00 or less and
(vii) to the extent that the Borrower's pro forma Leverage Ratio after
giving effect to such Permitted Acquisition is greater than 2.50:1.00, the
sum of (I) the aggregate cash consideration paid in connection with any
Permitted Acquisition (including, without limitation, any earn-out, non-
compete or deferred compensation arrangements and the aggregate principal
amount of any Indebtedness assumed in connection therewith) and (II) the
fair market value of any common stock and/or Qualified Preferred Stock of
the Borrower issued in connection therewith does not exceed $100,000,000;
(x) each of the Borrower and its Subsidiaries may grant leases or
subleases to other Persons not materially interfering with the conduct of
the business of the Borrower or any of its Subsidiaries;
(xi) the Borrower and its Subsidiaries may consummate sale and
leaseback transactions with respect to those properties identified on
Schedule VI and with respect to properties acquired after the Restatement
Effective Date, in each case so long as (i) no Default or Event of Default
then exists or would result therefrom, (ii) each such sale and leaseback
transaction is in an arm's-length transaction and the Borrower or the
respective Subsidiary receives at least fair market value (as determined in
good faith by the Borrower or such Subsidiary, as the case may be), (iii)
the total consideration received by the Borrower or such Subsidiary in
connection with each such sale and leaseback transaction is cash and is
paid at the time of the closing thereof, and (iv) the Net Sale Proceeds
therefrom are applied and/or reinvested as (and to the extent) required by
Section 3.03(b);
(xii) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower so long as the Borrower is the surviving
corporation of such merger or consolidation;
(xiii) any Subsidiary of the Borrower may be merged or consolidated
with or into any other Subsidiary of the Borrower so long as (i) in the
case of any such merger or consolidation involving a Subsidiary Guarantor,
the Subsidiary Guarantor is the surviving corporation of such merger or
consolidation and (ii) in the case of any such merger or consolidation
involving a Wholly-Owned Subsidiary of the Borrower, the Wholly-Owned
Subsidiary is the surviving corporation of such merger or consolidation;
and
(xiv) the Borrower and its Subsidiaries may sell up to a 49%
equity interest in the Borrower's Subsidiary formed to conduct business in
Latin America (other than in Mexico and Columbia) to a joint venture
partner that is not an Affiliate of the Borrower so long as (i) no Default
or Event of Default then exists or would result therefrom, (ii) such sale
is in an arm's-length transaction and the Borrower or the respective
Subsidiary receives at least fair market value (as determined in good faith
by the Borrower or such Subsidiary, as the case may be), (iii) the total
consideration received by the Borrower or such Subsidiary in connection
therewith is cash and is paid at the time of the closing of such sale, and
(iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and
to the extent) required by Section 3.03(b).
To the extent the Required Banks waive the provisions of this Section
9.02 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than to the Borrower or a Subsidiary
thereof), such Collateral shall be sold free and clear of the Liens created by
the respective Security Documents and the Agent and the Collateral Agent shall
be authorized to take any actions deemed appropriate in order to effect the
foregoing.
9.03 Restricted Payments. The Borrower will not, and will not permit
any of its Subsidiaries to, authorize, declare, pay or make any Restricted
Payment, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash
Dividends to its shareholders generally so long as the Borrower or its
respective Subsidiary which owns the equity interest in the Subsidiary
paying such Dividends receives at least its proportionate share thereof
(based upon its relative holding of the equity interest in the Subsidiary
paying such Dividends and taking into account the relative preferences, if
any, of the various classes of equity interests of such Subsidiary); and
(iii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the Borrower
may make cash Restricted Payments so long as the aggregate amount of all
Restricted Payments made subsequent to the Restatement Effective Date
pursuant to this clause (iii) does not exceed the remainder of (A) the sum
of (I) $15,000,000, plus (II) 50% of the cumulative Consolidated Net Income
(or, if cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of the Borrower earned subsequent to the Restatement Effective
Date and on or prior to the date the Restricted Payment occurs (the
"Restricted Payment Reference Date") (treating such period as a single
accounting period), provided, that in the case of common Stock Dividends,
the applicable percentage of cumulative Consolidated Net Income instead
shall be 25%, plus (III) 100% of the aggregate Net Equity Proceeds received
by the Borrower from any Person (other than a Subsidiary of the Borrower)
from the issuance and sale subsequent to the Restatement Effective Date and
on or prior to the Restricted Payment Reference Date of common stock and/or
Qualified Preferred Stock of the Borrower, plus (IV) without duplication of
any amounts included in preceding clause (III), 100% of the aggregate Net
Equity Proceeds of any equity contribution received by the Borrower from a
holder of the Borrower's common stock (other than from a Subsidiary of the
Borrower) minus (B) any amounts referred to in preceding clauses (II),
(III) and (IV) to the extent that such amounts are used to make Investments
pursuant to Section 9.05(xv).
Notwithstanding anything to the contrary contained in clause (iii) above in this
Section 9.03, the Borrower will not, and will not permit any of its Subsidiaries
to, make any Restricted Payment in respect of the Senior Subordinated Notes (i)
to the extent that the payment thereof would violate the subordination
provisions contained therein or (ii) as a result of any asset sale, change of
control or similar event.
9.04 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Existing Indebtedness permitted by Section 9.04(ii) of the
Original Credit Agreement and outstanding on the Restatement Effective
Date, and giving effect to any subsequent extension, renewal or refinancing
thereof, provided that the aggregate principal amount of the Indebtedness
to be extended, renewed or refinanced does not increase from that amount
outstanding at the time of any such extension, renewal or refinancing;
(iii) Indebtedness under Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this
Section 9.04;
(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations and purchase money Indebtedness subject to
Liens permitted under Section 9.01(vii), provided that in no event shall
the sum of (I) the aggregate principal amount of all Capitalized Lease
Obligations and (II) the aggregate principal amount of all purchase money
Indebtedness (including, in each case, any Capitalized Lease Obligations
and purchase money Indebtedness constituting Existing Indebtedness) exceed
$40,000,000 at any time outstanding;
(v) Indebtedness of any Foreign Subsidiary of the Borrower under
lines of credit extended by third Persons to any such Foreign Subsidiary
the proceeds of which Indebtedness are used for such Foreign Subsidiary's
working capital and general corporate purposes, provided that the aggregate
principal amount of all such Indebtedness incurred pursuant to this clause
(v), together with the aggregate principal amount of any Existing
Indebtedness under such lines of credit, shall not exceed $50,000,000 (or
the Dollar Equivalent thereof in the case of Indebtedness incurred in a
currency other than Dollars) at any time outstanding (the "Foreign
Subsidiary Third Party Borrowings");
(vi) intercompany Indebtedness among the Borrower and its Subsidiaries
to the extent permitted by Sections 9.05(ix), (xiii), (xiv) and (xv);
(vii) Indebtedness consisting of guaranties by the Borrower and
its Subsidiaries of other Indebtedness of the Borrower and its Subsidiaries
otherwise permitted to be incurred under this Section 9.04;
(viii) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection with the
Borrower's or any of its Subsidiaries' operations so long as management of
the Borrower or such Subsidiary, as the case may be, has determined that
the entering into of such Other Hedging Agreements are bona fide hedging
activities and are not for speculative purposes;
(ix) Indebtedness of the Borrower and the Subsidiary Guarantors under
the Senior Subordinated Notes and the other Senior Subordinated Note
Documents in an aggregate principal amount not to exceed $100,000,000 (as
reduced by any repayments of principal thereof);
(x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition or pursuant to an Investment made under Section 9.05(xv) (or
Indebtedness assumed at the time of a Permitted Acquisition or an
Investment made under Section 9.05(xv) of an asset securing such
Indebtedness), provided that (x) such Indebtedness was not incurred in
connection with, or in anticipation or contemplation of, such Permitted
Acquisition or such Investment, as the case may be, (y) such Indebtedness
does not constitute debt for borrowed money (other than debt for borrowed
money incurred in connection with industrial revenue or industrial
development bond financings), it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebtedness shall not
constitute debt for borrowed money for purposes of this clause (y), and (z)
at the time of such Permitted Acquisition or such Investment, as the case
may be, such Indebtedness does not exceed 30% of the total value of the
assets of the Subsidiary so acquired, or of the asset so acquired, as the
case may be; and
(xi) additional unsecured Indebtedness incurred by the Borrower and
its Subsidiaries in an aggregate principal amount not to exceed $7,000,000
at any one time outstanding.
9.05 Advances, Investments and Loans. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that during any time that Revolving Loans or
Swingline Loans are outstanding the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Domestic
Subsidiaries shall not exceed $5,000,000 for any period of five consecutive
Business Days;
(iii) the Borrower and its Subsidiaries may hold the Investments
held by them on the Restatement Effective Date and described on Schedule
VII, provided that any additional Investments made with respect thereto
shall be permitted only if independently justified under the other
provisions of this Section 9.05;
(iv) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective employees so long as
the aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $2,000,000;
(vi) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
common stock of the Borrower so long as no cash is paid by the Borrower or
any of its Subsidiaries to such officers or employees in connection with
the acquisition of any such obligations;
(vii) the Borrower may enter into Interest Rate Protection
Agreements to the extent permitted by Section 9.04(iii);
(viii) the Borrower and its Subsidiaries may enter into Other
Hedging Agreements to the extent permitted by Section 9.04(viii);
(ix) the Borrower and the Subsidiary Guarantors may make intercompany
loans and advances between or among one another (collectively,
"Intercompany Loans"), so long as each Intercompany Loan shall be evidenced
by an Intercompany Note that is pledged to the Collateral Agent pursuant to
the Pledge Agreement;
(x) the Borrower may make cash common equity contributions to the
capital of the Subsidiary Guarantors and the Subsidiary Guarantors may make
cash common equity contributions to the capital of their respective
Subsidiaries which are Subsidiary Guarantors;
(xi) Permitted Acquisitions shall be permitted pursuant to Section
9.02(ix);
(xii) the Borrower and its Subsidiaries may acquire and hold
promissory notes issued by the purchaser of assets in connection with a
sale of such assets to the extent permitted by Section 9.02(vi);
(xiii) the Borrower and the Subsidiary Guarantors may make
additional Intercompany Loans and/or cash equity contributions to Wholly-
Owned Foreign Subsidiaries of the Borrower for the purpose of enabling such
Wholly-Owned Foreign Subsidiaries to consummate a Permitted Acquisition so
long as each such Investment that is made as an Intercompany Loan shall be
evidenced by an Intercompany Note that is pledged to the Collateral Agent
pursuant to the Pledge Agreement;
(xiv) the Borrower and its Subsidiaries may make additional
Intercompany Loans and/or cash equity contributions to their respective
Subsidiaries for the purpose of enabling such Subsidiaries to make an
Investment permitted by clause (xv) of this Section 9.05 so long as each
such Investment that is made as an Intercompany Loan shall be evidenced by
an Intercompany Note that is pledged to the Collateral Agent pursuant to
the Pledge Agreement;
(xv) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower and its Subsidiaries may make additional
Investments so long as the aggregate amount of all such Investments made
subsequent to the Restatement Effective Date and outstanding at any time
(determined without regard to any write-downs or write-offs thereof)
pursuant to this clause (xv) does not exceed the remainder of (A) the sum
of (I) $30,000,000, plus (II) 50% of the cumulative Consolidated Net
Income (or, if cumulative Consolidated Net Income shall be a loss, minus
100% of such loss) of the Borrower earned subsequent to the Restatement
Effective Date and on or prior to the date the Investment occurs (the
"Investment Reference Date") (treating such period as a single accounting
period), plus (III) 100% of the aggregate Net Equity Proceeds received by
the Borrower from any Person (other than a Subsidiary of the Borrower) from
the issuance and sale subsequent to the Restatement Effective Date and on
or prior to the Investment Reference Date of common stock and/or Qualified
Preferred Stock of the Borrower, plus (IV) without duplication of any
amounts included in preceding clause (III), 100% of the aggregate Net
Equity Proceeds of any equity contribution received by the Borrower from a
holder of the Borrower's stock (other than from a Subsidiary of the
Borrower) minus (B) any amounts referred to in preceding clauses (II),
(III) and (IV) to the extent that such amounts are used to make Restricted
Payments pursuant to Section 9.03(iii), provided that in the case of any
such Investment made in any Person that is not then a Subsidiary of the
Borrower, at least 10 Business Days prior to the making of any such
Investment, the Borrower shall deliver to the Agent and each of the Banks a
certificate of the Chief Financial Officer of the Borrower certifying (and
showing the calculations therefor in reasonable detail) that the Borrower
would have been in compliance with the financial covenants set forth in
Sections 9.08, 9.09 and 9.10 for the Test Period then most recently ended
prior the date of such Investment, in each case with such financial
covenants to be determined on a pro forma basis as if such Investment had
been made on the first day of such Test Period (and assuming that any
Indebtedness incurred, issued or assumed in connection therewith had been
incurred, issued or assumed on the first day of, and had remained
outstanding throughout, such Test Period); and
(xvi) SITEL International, Inc. and/or a Subsidiary thereof may
contribute their equity interests in Grupo SITEL de Mexico, S.A. de C.V.
and/or any other Foreign Subsidiary of the Borrower to another Wholly-Owned
Subsidiary of the Borrower.
9.06 Transactions with Affiliates. (a) The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service), with, or for the benefit of, any
Affiliate of the Borrower or any of its Subsidiaries (each an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under clause (b)
of this Section 9.06 and (y) Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's length basis from a Person that is not an
Affiliate of the Borrower or such Subsidiary. All Affiliate Transactions (and
each series of related Affiliate Transactions which are similar or part of a
common plan) involving aggregate payments or other property with a fair market
value (as determined in good faith by the Board of Directors of the Borrower or
such Subsidiary, as the case may be) in excess of $1,000,000 shall be approved
by the Board of Directors of the Borrower or such Subsidiary, as the case may
be, and with such approval to be evidenced by a Board resolution stating that
such Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Borrower or any Subsidiary of the Borrower enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value (as
determined in good faith by the Board of Directors of the Borrower or such
Subsidiary, as the case may be) of more than $5,000,000, the Borrower or such
Subsidiary, as the case may be, shall, prior to the consummation thereof,
obtain a favorable opinion as to the fairness of such transaction or series of
related transactions to the Borrower or the relevant Subsidiary, as the case
may be, from a financial point of view, from an Independent Financial Advisor
and file the same with the Agent.
(b) The restrictions set forth in clause (a) of this Section 9.06
shall not apply to (i) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Borrower or any Subsidiary of the Borrower as determined in good faith by the
Borrower's Board of Directors or senior management, (ii) transactions
exclusively between or among the Borrower and any of its Subsidiaries or
exclusively between or among such Subsidiaries, provided such transactions are
not otherwise prohibited by the Credit Documents, (iii) transactions
exclusively between or among the Borrower and any of its Subsidiaries on the
one hand and any joint venture in which the Borrower and its Subsidiaries own
at least 45% of the total equity interest on the other hand, so long as no
portion of the remaining interest in such joint venture is owned by a Person
who is an Affiliate of the Borrower (other than another Subsidiary of the
Borrower) and such transactions are not otherwise prohibited by the Credit
Documents, (iv) any agreement as in effect as of the Restatement Effective
Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more
disadvantageous to the Banks in any material respect than the original
agreement as in effect on the Restatement Effective Date; (v) advances or
loans to employees, officers and directors of the Borrower and its
Subsidiaries permitted by Sections 9.05(v) and (xv), and (vi) Restricted
Payments permitted by Section 9.03.
9.07 Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any fiscal year of the Borrower set forth below (taken as one accounting
period), the Borrower and its Subsidiaries may make Capital Expenditures so
long as the aggregate amount of all such Capital Expenditures does not exceed
in any fiscal year of the Borrower set forth below the amount set forth
opposite such fiscal year below:
Fiscal Year Ending Amount
__________________ _______
December 31, 1998 $85,000,000
December 31, 1999 $95,000,000
December 31, 2000 $120,000,000
December 31, 2001 $130,000,000
December 31, 2002 $130,000,000
(b) In addition to the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year of the Borrower (before giving
effect to any increase in such permitted Capital Expenditure amount pursuant to
this clause (b)) is greater than the amount of Capital Expenditures actually
made by the Borrower and its Subsidiaries during such fiscal year, the lesser of
(x) such excess and (y) 25% of the applicable permitted scheduled Capital
Expenditure amount as set forth in such clause (a) above may be carried forward
and utilized to make Capital Expenditures in the immediately succeeding fiscal
year, provided that no amounts once carried forward pursuant to this Section
9.07(b) may be carried forward to any fiscal year thereafter and such amounts
may only be utilized after the Borrower and its Subsidiaries have utilized in
full the permitted Capital Expenditure amount for such fiscal year as set forth
in the table in clause (a) above (without giving effect to any increase in such
amount by operation of this clause (b)).
(c) In addition to the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures with the amount of Net Sale Proceeds received by
the Borrower or any of its Subsidiaries from any Asset Sale so long as such Net
Sale Proceeds are reinvested in replacement assets within 270 days following the
date of such Asset Sale to the extent such Net Sale Proceeds are not otherwise
required to be applied to reduce the Total Revolving Loan Commitment pursuant to
Section 3.03(b).
(d) In addition to the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures with the amount of Net Insurance Proceeds received
by the Borrower or any of its Subsidiaries from any Recovery Event so long as
such Net Insurance Proceeds are used to replace or restore any properties or
assets in respect of which such Net Insurance Proceeds were paid within 270 days
following the date of receipt of such Net Insurance Proceeds from such Recovery
Event to the extent such Net Insurance Proceeds are not otherwise required to be
applied to reduce the Total Revolving Loan Commitment pursuant to
Section 3.03(d).
(e) In addition to the foregoing, the Borrower and its Wholly-Owned
Subsidiaries may consummate Permitted Acquisitions to the extent permitted by
Section 9.02(ix).
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter set forth below to be less than the ratio set
forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
_____________________ _____
December 31, 1997 4.00:1.00
March 31, 1998 4.00:1.00
June 30, 1998 4.00:1.00
September 30, 1998 4.50:1.00
December 31, 1998 4.50:1.00
March 31, 1999 4.50:1.00
June 30, 1999 4.50:1.00
September 30, 1999 5.00:1.00
December 31, 1999 5.00:1.00
March 31, 2000 5.00:1.00
June 30, 2000 5.00:1.00
September 30, 2000 5.50:1.00
December 31, 2000 5.50:1.00
March 31, 2001 5.50:1.00
June 30, 2001 5.50:1.00
September 30, 2001 and
the last day of each fiscal
quarter thereafter 6.00:1.00
9.09 Maximum Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
Period Ratio
______ _____
Restatement Effective Date through
and including June 30, 2000 3.00:1.00
July 1, 2000 through
and including June 30, 2001 2.50:1.00
July 1, 2001
and thereafter 2.25:1.00
9.10 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ending on the last day of a fiscal
quarter set forth below to be less than the amount set forth opposite such
fiscal quarter below:
Fiscal Quarter Ending Amount
_____________________ ______
December 31, 1997 $50,000,000
March 31, 1998 $50,000,000
June 30, 1998 $50,000,000
September 30, 1998 $60,000,000
December 31, 1998 $60,000,000
March 31, 1999 $60,000,000
June 30, 1999 $60,000,000
September 30, 1999
and the last day of
each fiscal quarter thereafter $75,000,000
9.11 Limitation on Modifications of Certificate of Incorporation, By-
Laws, SAP Joint Venture Documents and Senior Subordinated Note Documents; etc.
(a) The Borrower will not, and will not permit any of its Subsidiaries to, (i)
amend, modify or change its certificate or articles of incorporation (including,
without limitation, by the filing or modification of any certificate of
designation) or by-laws (or the equivalent organizational documents) or the SAP
Joint Venture Documents unless any such amendment, modification or change could
not be adverse to the interests of the Banks or (ii) amend, modify or change any
of the Senior Subordinated Note Documents.
(b) Neither the Borrower nor any of its Subsidiaries shall designate
any Indebtedness, other than the Obligations, as "Designated Senior Debt" for
purposes of the Senior Subordinated Notes and the other Senior Subordinated Note
Documents.
9.12 Limitation on Certain Restrictions on Subsidiaries. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary
of the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (c) transfer any of its properties or assets to the Borrower or
any Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents, (iii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower or any
Subsidiary of the Borrower, (iv) customary provisions restricting assignment of
any licensing agreement or agreements for the provision of services entered into
by the Borrower or any Subsidiary of the Borrower in the ordinary course of
business and (v) restrictions on the transfer of any asset subject to a Lien
permitted by Section 9.01.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will
not, and will not permit any of its Subsidiaries to, issue (i) any preferred
stock (other than Qualified Preferred Stock of the Borrower) or (ii) any
redeemable common stock (other than common stock that is redeemable at the sole
option of the Borrower or such Subsidiary).
(b) The Borrower will not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except (i)
for transfers and replacements of then outstanding shares of capital stock, (ii)
for stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) to qualify directors to the extent
required by applicable law or (iv) for issuances by newly created or acquired
Subsidiaries in accordance with the terms of this Agreement.
9.14 Business. The Borrower and its Subsidiaries will not engage in
any businesses other than the businesses engaged in by the Borrower and its
Subsidiaries as of the Restatement Effective Date and reasonable extensions
thereof.
9.15 Limitation on Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower will not, and
will not permit any of its Subsidiaries to, establish, create or acquire after
the Restatement Effective Date any Subsidiary, provided that the Borrower and
its Wholly-Owned Subsidiaries shall be permitted to establish, create or, to the
extent permitted by the Agreement, acquire (x) Wholly-Owned Subsidiaries so long
as (i) the capital stock or other equity interests of each such new Wholly-Owned
Subsidiary (to the extent owned by a Credit Party) is pledged pursuant to, and
to the extent required by, the Pledge Agreement, (ii) each such new Wholly-Owned
Subsidiary (other than a Foreign Subsidiary) executes a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement, and
(iii) each such new Wholly-Owned Subsidiary (other than a Foreign Subsidiary)
executes and delivers, or causes to be executed and delivered, all other
relevant documentation of the type described in Section 5 as such new Wholly-
Owned Subsidiary would have had to deliver if such new Wholly-Owned Subsidiary
were a Credit Party on the Restatement Effective Date and (y) non-Wholly-Owned
Subsidiaries so long as the capital stock or other equity interest of each such
new non-Wholly-Owned Subsidiary (to the extent owned by a Credit Party) is
pledged pursuant to, and to the extent required by, the Pledge Agreement.
9.16 SAP Joint Venture Arrangements. Notwithstanding anything to the
contrary contained in Sections 9.02, 9.03, 9.04, 9.05 and 9.06, the Borrower and
its Subsidiaries may enter into, and perform their respective obligations under,
the SAP Joint Venture Documents on the terms and conditions set forth in the
First Amendment and Consent, dated as of January 8, 1998, to the Original Credit
Agreement, provided that (i) in order for the Borrower or one of its
Subsidiaries to purchase any interest in the SAP Joint Venture held by the other
joint venture partner, the Borrower or such Subsidiary must comply with Section
9.02(ix), provided that the provisions of clauses (vi) and (vii) of such Section
9.02(ix) shall not be applicable to the Borrower or its respective Subsidiary
honoring its put obligations under the SAP Joint Venture Documents, (ii) any
sale by the Borrower or any of its Subsidiaries of any portion of their equity
interest in the SAP Joint Venture shall be treated as an Asset Sale the proceeds
of which shall be applied and/or reinvested as (and to the extent) required by
Section 3.03(b), and (iii) any Investments made by the Borrower or any of its
Subsidiaries in or to the SAP Joint Venture after the Restatement Effective Date
shall be subject to the provisions of Section 9.05(xv) as opposed to the
aggregate dollar limitations set forth in the First Amendment and Consent
referred to above.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any interest on any Loan or Note, any Unpaid Drawing (or any interest
thereon) or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made (or deemed made) by any Credit Party herein or in any other
Credit Document or in any certificate delivered to the Agent or any Bank
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i) or 8.08 or Section 9 or (ii) default in the due performance
or observance by it of any other term, covenant or agreement contained in this
Agreement or any other Credit Document (other than those set forth in Sections
10.01 and 10.02) and such default shall continue unremedied for a period of 30
days after written notice thereof to the defaulting party by the Agent or the
Required Banks; or
10.04 Default Under Other Agreements. (i) The Borrower or any of
its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Notes) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity, or (ii) any Indebtedness (other than the Notes) of the
Borrower or any of its Subsidiaries shall be declared to be (or shall become)
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not be a Default or an Event of Default under this Section 10.04 unless
the aggregate principal amount of all Indebtedness as described in preceding
clauses (i) and (ii) is at least $3,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Borrower or any of
its Subsidiaries, or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any jurisdic
tion whether now or hereafter in effect relating to the Borrower or any of its
Subsidiaries, or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower or any Subsidiary of the Borrower has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans; (b) there shall result from any such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, has had,
or could reasonably be expected to have, a material adverse effect on the
business, operations, properties, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole;
or
10.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected first priority
security interest in all of the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons); or
10.08 Subsidiaries Guaranty. At any time after the execution and
delivery thereof, the Subsidiaries Guaranty or any provision thereof shall cease
to be in full force or effect as to any Subsidiary Guarantor, or any Subsidiary
Guarantor or any Person acting by or on behalf of such Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under the
Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$3,000,000; or
10.10 Change of Control. A Change of Control shall occur; then, and
in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Agent, upon the written request of the Required Banks,
shall by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of any Agent, any Bank or the holder of
any Note to enforce its claims against any Credit Party (provided, that, if an
Event of Default specified in Section 10.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Agent as specified in clauses (i) and (ii) below shall occur automatically with
out the giving of any such notice): (i) declare the Total Revolving Loan
Commitment terminated, whereupon the Revolving Loan Commitment of each Bank
shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Credit Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amount of cash or
Cash Equivalents, to be held as security by the Collateral Agent, as is equal to
the aggregate Stated Amount of all Letters of Credit issued for the account of
the Borrower and then outstanding; (v) enforce, as Collateral Agent, all Liens,
rights and remedies created pursuant to any of the Security Documents; and (vi)
apply any cash collateral held by the Agent pursuant to Section 4.02 to the
repayment of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Acquired Entity or Business" shall have the meaning provided in the
definition of "Consolidated Net Income".
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power (i) to vote
5% or more of the securities having ordinary voting power for the election of
directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Affiliate Transaction" shall have the meaning provided in Section
9.06.
"Agent" shall mean BTCo, in its capacity as Agent for the Banks
hereunder, and shall include any successor to the Agent appointed pursuant to
Section 12.09.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Applicable Eurodollar Rate Margin" shall mean a percentage per annum
equal to 1% less the then applicable Interest Reduction Discount, if any.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person (including by-way-of
redemption by such Person) other than to the Borrower or a Wholly-Owned
Subsidiary of the Borrower of any asset (including, without limitation, any
capital stock or other securities of, or equity interests in, another Person)
other than sales of assets pursuant to Sections 9.02 (ii), (iii), (iv), (v) and
(x).
"Assignment and Assumption Agreement" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Bank" shall mean each financial institution listed on Schedule I, as
well as any Person which becomes a "Bank" hereunder pursuant to Section 1.13 or
13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Bank to make available its portion of any
Borrowing required to be made available by it hereunder (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section
2.04(c) or (ii) a Bank having notified in writing the Borrower and/or the Agent
that such Bank does not intend to comply with its obligations under Section
1.01(a), 1.01(c) or 2, in the case of either clause (i) or (ii) as a result of
any takeover or control (including, without limitation, as a result of the
occurrence of any event of the type described in Section 10.05 with respect to
such Bank) of such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean, at any time, the higher of (i) the Prime
Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
Revolving Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean (i) the borrowing of Swingline Loans from the
Swingline Bank on a given date and (ii) the borrowing of one Type of Revolving
Loan from all the Banks on a given date (or resulting from a conversion or
conversions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided that (x) Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans
and (y) each Borrowing applicable to each of the Original Revolving Loans
outstanding on the Restatement Effective Date (and after giving effect to the
payments required by Section 5.05) shall continue to be applicable thereto as if
the Original Credit Agreement had not been amended and restated as herein
provided (although such Original Revolving Loans shall constitute Revolving
Loans as provided for in this Agreement).
"Borrowing Base" shall mean, as at any date on which the amount
thereof is being determined, an amount equal to 80% of Eligible Receivables as
determined from the Borrowing Base Certificate most recently delivered pursuant
to Section 8.01(i).
"Borrowing Base Certificate" shall have the meaning provided in
Section 8.01(i).
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City, New York, a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day which
is a Business Day described in clause (i) above and which is also a day for
trading by and between banks in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, but excluding the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations of such Person which, under generally accepted
accounting principles, are or will be required to be capitalized on the books of
such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i) 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
one year from the date of acquisition, (ii) Dollar denominated time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company having, a long-term unsecured debt
rating of at least "A" or the equivalent thereof from Standard & Poor's Ratings
Services or "A2" or the equivalent thereof from ▇▇▇▇▇'▇ Investors Service, Inc.
with maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) marketable direct obligations issued by the District of Columbia or
any State of the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, having one of the two highest
ratings obtainable from either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇
Investors Service, Inc. and (vi) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (v) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale or
pursuant to a receivable or otherwise, other than (in each case) the portion of
such deferred payment constituting interest, but only as and when so received)
received by the Borrower and/or any of its Subsidiaries from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) any Person or "group" (within the
meaning of Section 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Restatement Effective Date), shall (A) have acquired beneficial
ownership of 25% or more on a fully diluted basis of the voting and/or economic
interest in the Borrower's capital stock or (B) obtained the power (whether or
not exercised) to elect a majority of the Borrower's directors or (ii) the Board
of Directors of the Borrower shall cease to consist of a majority of Continuing
Directors or (iii) any "change of control" under, and as defined in, the Senior
Subordinated Note Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the Restatement
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean the Pledge Agreement Collateral, the Security
Agreement Collateral and all cash and Cash Equivalents delivered as collateral
pursuant to Section 4.02 or 10.
"Collateral Agent" shall mean the Agent acting as collateral agent for
the Secured Creditors pursuant to the Security Documents.
"Commitment Commission" shall have the meaning set forth in Section
3.01.
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income for such period before Consolidated Interest Expense and provision for
taxes for such period and without giving effect (x) to any extraordinary gains
or losses and (y) to any gains or losses from sales of assets other than from
sales of inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at Consolidated EBIT
for such period (including deferred financing, legal and accounting costs
associated with the Original Credit Agreement, this Agreement and the Senior
Subordinated Notes), but determined without giving effect to any non-cash
charges of up to $8,500,000 in the aggregate which is taken by the Borrower on
or prior to December 31, 1998 in connection with the revaluation of the
businesses of SITEL Telebusiness New Zealand Limited, SITEL Telebusiness
Australia Pty Limited and/or SITEL Telebusiness Singapore Pte Ltd..
"Consolidated Indebtedness" shall mean, at any time, the principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such time as
determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease Obligations of the
Borrower and its Subsidiaries representing the interest factor for such period;
provided that the amortization of deferred financing costs with respect to this
Agreement, the Original Credit Agreement and the Senior Subordinated Notes shall
be excluded from Consolidated Interest Expense to the extent same would
otherwise have been included therein.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis (and after deductions for minority interests), provided that
(i) the net income of any other Person which is not a Subsidiary of the Borrower
or is accounted for by the Borrower by the equity method of accounting shall be
included only to the extent of the payment of dividends or distributions by such
other Person to the Borrower or a Subsidiary thereof during such period and (ii)
the net income of any Subsidiary of the Borrower shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of its income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument or law applicable to such
Subsidiary; provided that for purposes of Section 9.09 and the definition of
Interest Reduction Discount, there shall be included (to the extent not already
included) in determining Consolidated Net Income for any period the net income
(or loss) of any Person, business, property or asset acquired during such period
pursuant to a Permitted Acquisition or pursuant to an Investment made under
Section 9.05(xv) and not subsequently sold or otherwise disposed of by the
Borrower or one of its Subsidiaries during such period (each such Person,
business, property or asset acquired and not subsequently disposed of during
such period, an "Acquired Entity or Business"), in each case based on the actual
net income (or loss) of such Acquired Entity or Business for the entire period
(including the portion thereof occurring prior to such acquisition) (but after
any deductions for minority interests).
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the
Restatement Effective Date and each other director if such director's nomination
for election to the Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the execution
and delivery thereof pursuant to the terms of this Agreement, each Note, the
Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Dividend" shall mean, with respect to any Person, that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution, payment
or delivery of property (other than common stock of such Person) or cash to its
stockholders or partners as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or any partnership interests outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership interests of such Person outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
"Documents" shall mean the Credit Documents and the Senior
Subordinated Note Documents.
"Dollar Equivalent" shall mean, at any time of determination thereof,
the amount of Dollars which could be purchased with (or, in the case of Letters
of Credit denominated in a currency other than Dollars, the amount of Dollars
necessary to purchase) the amount of currency involved in such computation at
the spot exchange rate therefor as published in the New York edition of The Wall
Street Journal on the date one Business Day prior to the date of any
determination thereof, provided that if the New York edition of The Wall Street
Journal is not published on such date, reference shall be made to such rate as
set forth in the most recently published New York edition of The Wall Street
Journal, and provided further, that if at any time the New York edition of The
Wall Street Journal ceases to publish such exchange rates, the Dollar Equivalent
shall be the amount of Dollars which could be purchased with (or, in the case of
Letters of Credit denominated in a currency other than Dollars, the amount of
Dollars necessary to purchase) the amount of currency involved in such
computation at the spot rate therefor as quoted by the Agent at approximately
11:00 a.m. (London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date, it being understood and agreed,
however, that (i) in determining the Stated Amount of any Letter of Credit
issued in a currency other than Dollars (A) for purposes of Sections 1.01(a),
1.01(b), 2.02 and 4.02(a), the Dollar Equivalent thereof shall be calculated (x)
on the date of the issuance of such Letter of Credit, (y) on the first Business
Day of each calendar month thereafter and (z) on such other day as the Agent
may, in its sole discretion, consider appropriate and (B) for purposes of
Sections 3.01(a), 3.01(b) and 3.01(c), the Dollar Equivalent shall be calculated
on the first Business Day of each month in the quarterly period in which the
respective payment is due pursuant to said Sections, (ii) the Dollar Equivalent
for all reimbursement obligations with respect to all Letters of Credit issued
in a currency other than Dollars shall be determined by using the Dollar
Equivalent thereof as in effect on the date the respective Unpaid Drawing was
paid by such Issuing Bank and (iii) for purposes of determining compliance with
Section 9.04, the Dollar Equivalent of any Foreign Subsidiary Third Party
Borrowings or any such other Indebtedness incurred in a currency other than
Dollars shall be the Dollar Equivalent thereof as in effect on the last Business
Day of the then most recently ended fiscal quarter of the Borrower and such
Dollar Equivalent shall remain in effect until same is recalculated as of the
last Business Day of the immediately succeeding fiscal quarter.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower that
is incorporated under the laws of the United States or any State or territory
thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall mean the "Effective Date" under, and as defined
in, the Original Credit Agreement.
"Eligible Receivables" shall mean the total face amount of the
receivables of the Borrower and the Subsidiary Guarantors which conform to the
representations and warranties contained in the Security Agreement (including by
the Collateral Agent having a first priority perfected security interest
therein) and at all times continue to be acceptable to the Collateral Agent in
its reasonable judgment, less any returns, discounts, claims, credit and
allowances of any nature (whether issued, owing, granted or outstanding) and
less reserves for any other matter affecting the creditworthiness of account
debtors owing the receivables and excluding (i) ▇▇▇▇ and hold (deferred
shipment) transactions, (ii) contracts or sales to any Affiliate of the Borrower
or any of its Subsidiaries, (iii) all receivables to the extent that same have
not been paid in full within 45 days of the due date thereof or which have been
disputed by the account debtor, (iv) governmental sales, and (v) sales to
account debtors outside the United States.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution, any fund that invests in bank loans or, with the consent
of the Borrower (which consent shall not be unreasonably withheld or delayed),
any other "accredited investor" (as defined in Regulation D of the Securities
Act).
"End Date" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution, indemni
fication, cost recovery, compensation or injunctive relief in connection with
alleged injury or threat of injury to health, safety or the environment due to
the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community Right-to-
Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Hazardous Material
Transportation Act, 49 U.S.C. Section 1801 et seq. and the Occupational Safety
and Health Act, 29 U.S.C. Section 651 et seq.; and any state and local or
foreign counterparts or equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on
the Restatement Effective Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Revolving Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to first-class
banks in the New York interbank Eurodollar market by BTCo for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of BTCo with maturities comparable to the Interest
Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 11:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded
upward to the nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the
then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Existing Indebtedness" shall have the meaning provided in Section
7.21.
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01(a).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall mean July 24, 2002.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower which
is not a Domestic Subsidiary.
"Foreign Subsidiary Third Party Borrowings" shall have the meaning
provided in Section 9.04(v).
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic sub
stances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (provided, that, if the Person has not assumed or
otherwise become liable in respect of such Indebtedness, such Indebtedness shall
be deemed to be in an amount equal to the fair market value of the property to
which such Lien relates as determined in good faith by such Person), (iv) the
aggregate amount required to be capitalized under leases under which such Person
is the lessee, (v) all obligations of such person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e., take-or
-pay and similar obligations, (vi) all Contingent Obligations of such Person and
(vii) all obligations under any Interest Rate Protection Agreement, any Other
Hedging Agreement or under any similar type of agreement. Notwithstanding the
foregoing, Indebtedness shall not include trade payables and accrued expenses
incurred by any Person in accordance with customary practices and in the
ordinary course of business of such Person.
"Independent Financial Advisor" shall mean a firm (i) which does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect financial interest in the Borrower and (ii) which, in the judgment
of the Board of Directors of the Borrower, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Intercompany Loan" shall have the meaning provided in Section
9.05(ix).
"Intercompany Note" shall mean a promissory note, in the form of
Exhibit N or such other form as may be reasonably acceptable to the Agent, in
either case evidencing Intercompany Loans, provided that any Intercompany Note
in which the Borrower is the obligor shall contain the subordination provisions
set forth on Exhibit N.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement or other similar agreement or arrangement.
"Interest Reduction Discount" shall mean (i) for the period from the
Restatement Effective Date through but not including the first Start Date, zero,
and (ii) from and after any Start Date after the Restatement Effective Date to
and including the corresponding End Date the percentage set forth in clause (A)
or (B) below to the extent that the condition set forth in clause (A) or (B)
below is satisfied (and to the extent that neither such condition is satisfied
the Interest Reduction Discount shall be zero):
(A) 1/4 of 1% if, but only if, as of the Test Date for such Start
Date the Leverage Ratio for the Test Period ended on such Test Date shall be
less than or equal to 2.25:1.00 and greater than or equal to 1.50:1.00; or
(B) 3/8 of 1% if, but only if, as of the Test Date for such Start
Date the Leverage Ratio for the Test Period ended on such Test Date shall be
less than 1.50:1.00.
Notwithstanding anything to the contrary above in this definition, the Interest
Reduction Discount shall be reduced to zero at all times when a Default or an
Event of Default shall exist.
"Investment Reference Date" shall have the meaning provided in Section
9.05(xv).
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Bank" shall mean BTCo, U.S. Bank and any other Bank which at
the request of the Borrower and with the consent of the Agent agrees, in such
Bank's sole discretion, to become an Issuing Bank for the purpose of issuing
Letters of Credit pursuant to Section 2.
"Judgment Currency" shall have the meaning provided in Section
13.17(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 13.17(a).
"L/C Supportable Obligations" shall mean (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers compensation, surety
bonds and other similar statutory obligations, (ii) all Foreign Subsidiary Third
Party Borrowings and (iii) such other obligations of the Borrower or any of its
Subsidiaries as are reasonably acceptable to the respective Issuing Bank and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit at such
time and (ii) the amount of all Unpaid Drawings at such time.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of Consolidated
Indebtedness at such time to Consolidated EBITDA for the Test Period then most
recently ended, provided that, for purposes of calculating the Interest
Reduction Discount, the foregoing numerator shall instead be the sum of (I)
Consolidated Indebtedness (excluding Revolving Outstandings) at such time plus
(II) the average Revolving Outstandings for the then most recently ended fiscal
quarter of the Borrower.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Period" shall mean each period which shall commence
on a date on which the financial statements are delivered pursuant to Section
8.01(a) or (b), as the case may be, and which shall end on the earlier of (i)
the date of actual delivery of the next financial statements pursuant to Section
8.01(a) or (b), as the case may be, and (ii) the latest date on which the next
financial statements are required to be delivered to Section 8.01(a) or (b), as
the case may be.
"Margin Stock" shall have the meaning provided in Regulation U.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$2,000,000 and (ii) for Swingline Loans, $250,000.
"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Equity Proceeds" shall mean, with respect to each issuance or
sale of any equity by any Person or any capital contribution to such Person, the
cash proceeds (net of underwriting discounts and commissions and other costs
associated therewith) received by such Person from the respective sale or
issuance of its equity or from the respective capital contribution.
"Net Insurance Proceeds" shall mean, with respect to any Recovery
Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such Asset Sale, net of the reasonable costs of such sale
(including fees and commissions, payments of unassumed liabilities relating to
the assets sold and required payments of any Indebtedness which is secured by
the respective assets which were sold), and the incremental taxes paid or
payable as a result of such Asset Sale.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ or such other
office as the Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to the Agent, the
Collateral Agent, any Issuing Bank or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Obligation Currency" shall have meaning provided in Section 13.17(a).
"Original Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Original Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in, the Original Credit Agreement.
"Original Swingline Loans" shall mean the "Swingline Loans" under, and
as defined in, the Original Credit Agreement.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Agent located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other office as the Agent may
hereafter designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in Section
9.02 (ix).
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledgee" shall have the meaning provided in the Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as defined in
the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Projections" shall mean the projections which were prepared by the
Borrower for the period ending on December 31, 2002 and which were delivered to
the Banks on or about March 5, 1998.
"Qualified Preferred Stock" shall mean any preferred stock of the
Borrower so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision
occurring before July 31, 2003, (ii) do not require the cash payment of
dividends, (iii) do not contain any covenants, (iv) do not grant the holders
thereof any voting rights except for (x) voting rights required to be granted to
such holders under applicable law and (y) limited customary voting rights on
fundamental matters such as mergers, consolidations, sales of all or
substantially all of the assets of the Borrower, or liquidations involving the
Borrower, and (v) are otherwise reasonably satisfactory to the Agent.
"Quarterly Payment Date" shall mean the last Business Day of each
September, December, March and June occurring after the Restatement Effective
Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable (i)
by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or
migrating, into or upon any land or water or air, or otherwise entering into the
environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and RL Percentages of outstanding Swingline Loans and Letter of
Credit Outstandings) represent an amount greater than 50% of the sum of the
Total Revolving Loan Commitment less the Revolving Loan Commitments of all
Defaulting Banks (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate RL
Percentages of Non-Defaulting Banks of the total outstanding Swingline Loans and
Letter of Credit Outstandings Swingline Loans at such time).
"Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Restricted Payment" shall mean (a) any authorization, declaration or
payment of any Dividends with respect to the Borrower or any of its
Subsidiaries, or (b) the making (or the giving of any notice in respect thereof)
by the Borrower or any of its Subsidiaries of any voluntary, optional or
mandatory payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) any of the Senior Subordinated Notes.
"Restricted Payment Reference Date" shall have the meaning provided in
Section 9.03(iii).
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, for each Bank, the amount set
forth opposite such Bank's name in Schedule I directly below the column entitled
"Revolving Loan Commitment," as same may be (x) reduced from time to time
pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time to time as a
result of assignments to or from such Bank pursuant to Section 1.13 or 13.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Outstandings" shall mean, at any time, the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding plus the aggregate amount of all Letter of Credit Outstandings at
such time.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"SAP Joint Venture" shall mean the joint venture arrangement between
SITEL Asia Pacific Holdings Pte Ltd., Lend Lease Securities and Investments Pty
Limited and Lend Lease International Pty Limited evidenced by the SAP Joint
Venture Documents.
"SAP Joint Venture Documents" shall mean the Shareholders Agreement by
and among the Borrower, SITEL Asia Pacific Holdings Pte Ltd., SITEL Australia
Pty Ltd, Evergem Investments Pte Limited, Lend Lease Corporation Limited, Lend
Lease Securities and Investments Pty Limited and Lend Lease International Pty
Limited and the other definitive documentation for the SAP Joint Venture
executed in connection therewith.
"SEC" shall have the meaning provided in Section 8.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 5.09.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Document" shall mean and include each of the Security
Agreement and the Pledge Agreement.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Note Indenture, the Senior Subordinated Notes, the Senior
Subordinated Note Offering Memorandum and each other document or agreement
relating to the issuance of the Senior Subordinated Notes.
"Senior Subordinated Note Indenture" shall mean the Indenture, dated
as of March 10, 1998 by and among the Borrower, the Subsidiary Guarantors and
The First National Bank of Maryland, as trustee.
"Senior Subordinated Note Offering Memorandum" shall mean the Offering
Memorandum, dated March 5, 1998, prepared in connection with the issuance of the
Senior Subordinated Notes.
"Senior Subordinated Notes" shall mean the Borrower's 9-1/4% Senior
Subordinated Notes due 2006.
"Start Date" shall mean, with respect to any Margin Reduction Period,
the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall mean, at any time, the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met); provided that
the "Stated Amount" of each Letter of Credit denominated in a currency other
than Dollars shall be, on any date of calculation, the Dollar Equivalent of the
maximum amount available to be drawn in the respective currency thereunder
(determined without regard to whether any conditions to drawing could then be
met).
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time; provided that Grupo SITEL de Mexico, S.A. de C.V. shall be considered
a Subsidiary of the Borrower under this Agreement so long as the Borrower or a
Wholly Owned Subsidiary thereof owns at least 49% of the equity interest thereof
and controls the Board of Directors of such Person.
"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary of the Borrower.
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.10.
"Swingline Bank" shall mean BTCo.
"Swingline Expiry Date" shall mean that date which is five Business
Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Date" shall mean, with respect to any Start Date, the last day
of the most recent fiscal quarter of the Borrower ended immediately prior to
such Start Date.
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended (in each case taken as one accounting period), provided
that for any determination made under Section 9.08 on and prior to March 31,
1998, such period shall be the period from July 1, 1997 to the last day of the
fiscal quarter of the Borrower then last ended (in each case taken as one
accounting period).
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Revolving Loan Commitment then
in effect less (y) the sum of the aggregate principal amount of all Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of all
Letter of Credit Outstandings.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year, determined in accordance
with actuarial assumptions at such time consistent with Statement of Financial
Accounting Standards No. 87, exceeds the market value of the assets allocable
thereto.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Revolving Loan Commitment" shall mean, with respect to any
Bank at any time, such Bank's Revolving Loan Commitment at such time less the
sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such Bank at such time and (ii) such Bank's RL Percentage of the Letter
of Credit Outstandings at such time.
"U.S Bank" shall mean U.S. Bank National Association.
"Wholly-Owned Domestic Subsidiary" shall mean each Domestic Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Foreign Subsidiary" shall mean each Foreign Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
SECTION 12. The Agent.
12.01 Appointment. The Banks hereby irrevocably designate BTCo as
Agent (for purposes of this Section 12, the term "Agent" also shall include BTCo
in its capacity as Collateral Agent pursuant to the Security Documents) to act
as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
their behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through its officers, directors,
agents, employees or affiliates.
12.02 Nature of Duties. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither the Agent nor any of its officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by them hereunder or under any other Credit Document or in connection herewith
or therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Agent shall be mechanical and administrative in
nature; the Agent shall not have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Bank or the holder of any
Note; and nothing in this Agreement or any other Credit Document, expressed or
implied, is intended to or shall be so construed as to impose upon the Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 Lack of Reliance on the Agent. Independently and without
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deemed or deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of the Borrower and its Subsidiaries
and, except as expressly provided in this Agreement, the Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to
provide any Bank or the holder of any Note with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. The Agent shall not be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectability, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower or any of
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
12.04 Certain Rights of the Agent. If the Agent shall request
instructions from the Required Banks or all of the Banks, as applicable, with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Agent shall be entitled to refrain
from such act or taking such action unless and until the Agent shall have
received instructions from the Required Banks or all of the Banks, as
applicable; and the Agent shall not incur liability to any Bank by reason of so
refraining. Without limiting the foregoing, no Bank or the holder of any Note
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks or all of the
Banks, as applicable.
12.05 Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Agent.
12.06 Indemnification. To the extent the Agent is not reimbursed and
indemnified by the Borrower or any of its Subsidiaries, the Banks will reimburse
and indemnify the Agent in proportion to their respective "percentage" as used
in determining the Required Banks for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Agent in performing its duties hereunder or
under any other Credit Document or in any way relating to or arising out of this
Agreement or any other Credit Document; provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct (as finally determined by a court
of competent jurisdiction).
12.07 The Agent in its Individual Capacity. With respect to its
obligation to make Loans, or issue or participate in Letters of Credit, under
this Agreement, the Agent shall have the rights and powers specified herein for
a "Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required Banks,"
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity. The Agent
and its affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to, any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
12.08 Holders. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
12.09 Resignation by the Agent. (a) The Agent may resign from the
performance of all its respective functions and duties hereunder and/or under
the other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Banks. Such resignation shall take effect upon the appointment of
a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided
below.
(b) Upon any such notice of resignation by the Agent, the Required
Banks shall appoint a successor Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower, which
acceptance shall not be unreasonably withheld or delayed (provided that the
Borrower's approval shall not be required if an Event of Default then exists).
(c) If a successor Agent shall not have been so appointed within such
15 Business Day period, the Agent with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed), shall then appoint a
successor Agent who shall serve as Agent hereunder or thereunder until such
time, if any, as the Required Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 20th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required
Banks appoint a successor Agent as provided above.
12.10 Syndication Agent and Documentation Agent. Neither U.S. Bank
nor First Union National Bank shall have any duties or liability under this
Agreement solely in their capacity as Syndication Agent or Documentation Agent,
as the case may be.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent (including, without limitation,
the reasonable fees and disbursements of White & Case LLP) in connection with
the preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the Agent in
connection with its syndication efforts with respect to this Agreement and of
the Agent and, after the occurrence of an Event of Default, each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the reasonable fees and disbursements of counsel for the
Agent and, after the occurrence of an Event of Default, for each of the Banks);
(ii) pay and hold each of the Banks harmless from and against any and all
present and future stamp, excise and other similar documentary taxes with
respect to the foregoing matters and save each of the Banks harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes;
and (iii) indemnify the Agent and each Bank, and each of their respective
officers, directors, employees, representatives and agents from and hold each of
them harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
the Agent or any Bank is a party thereto and whether or not such investigation,
litigation or other proceeding is brought by or on behalf of any Credit Party)
related to the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any of the transactions contemplated herein or
in any other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials by the Borrower or
any of its Subsidiaries at any location, whether or not owned or operated by the
Borrower or any of its Subsidiaries, the non-compliance of any Real Property
with foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property, or
any Environmental Claim asserted against the Borrower, any of its Subsidiaries
or any Real Property owned or at any time operated by the Borrower or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence, bad faith or willful misconduct of the Person to
be indemnified (as finally determined by a court of competent jurisdiction)).
To the extent that the undertaking to indemnify, pay or hold harmless the Agent
or any Bank set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of any Credit Party against and on account of
the Obligations and liabilities of the Credit Parties to such Bank under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 13.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to the Bank, at its address specified on Schedule II; and
if to the Agent, at its Notice Office; or, as to any Credit Party or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties hereto and, as to each Bank, at such other address as shall
be designated by such Bank in a written notice to the Borrower and the Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Agent and the Borrower shall not be effective until
received by the Agent or the Borrower, as the case may be.
13.04 Benefit of Agreement; Assignments; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, the Borrower may not assign or transfer any of its rights, obligations
or interest hereunder without the prior written consent of each of the Banks
and, provided further, that, although any Bank may transfer, assign or grant
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Sections 1.13 and 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Revolving Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Final Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Revolving Loan
Commitment, shall not constitute a change in the terms of such participation,
and that an increase in any Revolving Loan Commitment or Revolving Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Pledge
Agreement Collateral (except as expressly provided in the Credit Documents)
supporting the Revolving Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment and related outstanding Obligations hereunder to (i) its parent
company and/or any affiliate of such Bank which is at least 50% owned by such
Bank or its parent company or to one or more Banks or (ii) in the case of any
Bank that is a fund that invests in bank loans, any other fund that invests in
bank loans and is managed by the same investment advisor of such Bank or by an
Affiliate of such investment advisor or (y) assign all, or if less than all, a
portion equal to at least $5,000,000 in the aggregate for the assigning Bank or
assigning Banks, of such Revolving Loan Commitment or Revolving Loan Commitments
and related outstanding Obligations hereunder to one or more Eligible
Transferees (treating any fund that invests in bank loans and any other fund
that invests in bank loans and is managed by the same investment advisor of such
fund or by an Affiliate of such investment advisor as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement as a
Bank by execution of an Assignment and Assumption Agreement, provided that, (i)
at such time Schedule I shall be deemed modified to reflect the Revolving Loan
Commitments of such new Bank and of the existing Banks, (ii) upon the surrender
of the relevant Revolving Note by the assigning Bank (or, upon such assigning
Bank's indemnifying the Borrower for any lost Revolving Note pursuant to a
customary indemnification agreement) a new Revolving Note will be issued, at the
Borrower's expense, to such new Bank and to the assigning Bank upon the request
of such new Bank or assigning Bank, such new Revolving Note to be in conformity
with the requirements of Section 1.05 (with appropriate modifications) to the
extent needed to reflect the revised Revolving Loan Commitments and/or
outstanding Revolving Loans, as the case may be, (iii) the consent of the Agent
shall be required in connection with any assignment to an Eligible Transferee
pursuant to clause (y) above (which consent shall not be unreasonably withheld
or delayed), (iv) the Agent shall receive at the time of each such assignment,
from the assigning or assignee Bank, the payment of a non-refundable assignment
fee of $3,500 and (v) no such transfer or assignment will be effective until
recorded by the Agent on the Register pursuant to Section 13.15. To the extent
of any assignment pursuant to this Section 13.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned Revolving
Loan Commitment and outstanding Revolving Loans. At the time of each assignment
pursuant to this Section 13.04(b) to a Person which is not already a Bank
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall, to the extent legally entitled to do so, provide to the
Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Revolving Loan Commitment
and related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 2.06 or 4.04 from those being charged by the respective assigning
Bank prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower, in accordance with and pursuant to
the other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Revolving Loans and Revolving Note hereunder to a Federal Reserve
Bank in support of borrowings made by such Bank from such Federal Reserve Bank
and, with the consent of the Agent, any Bank which is a fund may pledge all or
any portion of its Revolving Loans and Revolving Note to its trustee in support
of its obligations to its trustee. No pledge pursuant to this clause (c) shall
release the transferor Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Agent, the Collateral Agent, any Issuing Bank or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Agent, the Collateral Agent, any Issuing Bank or any Bank shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights, powers and remedies herein or in
any other Credit Document expressly provided are cumulative and not exclusive of
any rights, powers or remedies which the Agent, the Collateral Agent, any
Issuing Bank or any Bank would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Agent, the Collateral Agent, any Issuing Bank or any Bank to any
other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Agent agrees that promptly after its receipt of each payment from
or on behalf of the Borrower in respect of any Obligations hereunder, it shall
distribute such payment to the Banks (other than any Bank that has consented in
writing to waive its pro rata share of any such payment) pro rata based upon
their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Revolving Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received by
other Banks is in a greater proportion than the total of such Obligation then
owed and due to such Bank bears to the total of such Obligation then owed and
due to all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in the Obligations of the respective
Credit Party to such Banks in such amount as shall result in a proportional
participation by all the Banks in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations; Accounting Terms. (a) The
financial statements to be furnished to the Banks pursuant hereto shall be made
and prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); provided that, (i) except as otherwise specifically
provided herein, all computations and all definitions used in determining
compliance with Sections 9.07 through 9.10, inclusive, shall utilize accounting
principles and policies in conformity with those used to prepare the historical
financial statements of the Borrower referred to in Section 7.05(a) and (ii) the
aggregate Stated Amount of all Letters of Credit issued in support of Foreign
Subsidiary Third Party Borrowings (and the interest expense related to such
Letters of Credit) shall be excluded from the calculation of the financial
covenants set forth in Sections 9.08 and 9.09 and from the calculation of
Interest Reduction Discount to the extent, but only to the extent, of the
outstanding principal amount of such Foreign Subsidiary Third Party Borrowings
at the time of any such calculation.
(b) All computations of interest, Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day; except that
in the case of Letter of Credit Fees, the last day shall be included) occurring
in the period for which such interest, Commitment Commission or Fees are
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY
OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY BANK OR
THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
13.10 Effectiveness. This Agreement shall become effective on the
date (the "Restatement Effective Date") on which (i) the Borrower, the Agent and
the Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Agent at the Notice
Office or, in the case of the Banks, shall have given to the Agent telephonic
(confirmed in writing), written or telex notice (actually received) at such
office that the same has been signed and mailed to it and (ii) the conditions
set forth in Section 5 are met to the satisfaction of the Agent and the Required
Banks. Unless the Agent has received actual notice from any Bank that the
conditions contained in Section 5 have not been met to its satisfaction, upon
the satisfaction of the condition described in clause (i) of the immediately
preceding sentence and upon the Agent's good faith determination that the
conditions described in clause (ii) of the immediately preceding sentence have
been met, then the Restatement Effective Date shall have been deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Restatement
Effective Date shall not release the Borrower from any liability for failure to
satisfy one or more of the applicable conditions contained in Section 5). The
Agent will give the Borrower and each Bank prompt written notice of the
occurrence of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Final Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except to the extent repaid in cash) (it
being understood that any amendment or modification to the financial definitions
in this Agreement or to Section 13.07(a) shall not constitute a reduction in the
rate of interest or Fees for the purposes of this clause (i)), (ii) release all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents), (iii) amend, modify or waive any provision of this Section
13.12, (iv) reduce the percentage specified in the definition of Required Banks
(it being understood that, with the consent of the Required Banks, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Banks on substantially the same basis as the
Revolving Loan Commitments are included on the Effective Date) or (v) consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
or termination shall (v) increase the Revolving Loan Commitment of any Bank over
the amount thereof then in effect without the consent of such Bank (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total Revolving
Loan Commitment shall not constitute an increase of the Revolving Loan
Commitment of any Bank, and that an increase in the available portion of any
Revolving Loan Commitment of any Bank shall not constitute an increase of the
Revolving Loan Commitment of such Bank), (w) without the consent of any Issuing
Bank, amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit, (x) without the consent of the
Swingline Bank, alter the Swingline Bank's rights or obligations with respect to
Swingline Loans, (y) without the consent of the Agent, amend, modify or waive
any provision of Section 12 or any other provision as same relates to the rights
or obligations of the Agent, or (z) without the consent of the Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination or (B) terminate such non-consenting Bank's Revolving
Loan Commitment and/or repay the outstanding Revolving Loans of such Bank and
cash collateralize its applicable RL Percentage of the Letter of Credit
Outstandings in accordance with Sections 3.02(b) and 4.01(b), provided that,
unless the Revolving Loan Commitment that is terminated, and Revolving Loans
repaid, pursuant to preceding clause (B) are immediately replaced in full at
such time through the addition of new Banks or the increase of the Revolving
Loan Commitments and/or outstanding Revolving Loans of existing Banks (who in
each case must specifically consent thereto), then in the case of any action
pursuant to preceding clause (B) the Required Banks (determined after giving
effect to the proposed action) shall specifically consent thereto, provided
further, that in any event the Borrower shall not have the right to replace a
Bank, terminate its Revolving Loan Commitment or repay its Revolving Loans
solely as a result of the exercise of such Bank's rights (and the withholding of
any required consent by such Bank) pursuant to the second proviso to Section
13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.
13.14 Domicile of Loans. Each Bank may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such Bank.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from
those being charged by the respective Bank prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Register. The Borrower hereby designates the Agent to serve as
the Borrower's agent, solely for purposes of this Section 13.15, to maintain a
register (the "Register") on which it will record the Revolving Loan Commitments
from time to time of each of the Banks, the Revolving Loans made by each of the
Banks and each repayment in respect of the principal amount of the Revolving
Loans of each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Revolving Loans. With respect to any Bank, the transfer of the Revolving Loan
Commitment of such Bank and the rights to the principal of, and interest on, any
Revolving Loan made pursuant to such Revolving Loan Commitment shall not be
effective until such transfer is recorded on the Register maintained by the
Agent with respect to ownership of such Revolving Loan Commitment and Revolving
Loans and prior to such recordation all amounts owing to the transferor with
respect to such Revolving Loan Commitment and Revolving Loans shall remain owing
to the transferor. The registration of assignment or transfer of all or part of
any Revolving Loan Commitments and Revolving Loans shall be recorded by the
Agent on the Register only upon the acceptance by the Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Agent for acceptance and registration of assignment or transfer
of all or part of a Revolving Loan, or as soon thereafter as practicable, the
assigning or transferor Bank shall surrender the Revolving Note evidencing such
Revolving Loan, and thereupon one or more new Revolving Notes in the same aggre
gate principal amount shall be issued to the assigning or transferor Bank and/or
the new Bank. The Borrower agrees to indemnify the Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature which may
be imposed on, asserted against or incurred by the Agent in performing its
duties under this Section 13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause (b)
of this Section 13.16, each Bank agrees that it will use its reasonable efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information, provided such Persons shall be
subject to the provisions of this Section 13.16 to the same extent as such Bank)
any information with respect to the Borrower or any of its Subsidiaries which is
now or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by the Borrower to the Banks in writing as
confidential, provided that any Bank may disclose any such information (i) as
has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Bank, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have jurisdiction over
such Bank or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (iii) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (iv) in order to
comply with any law, order, regulation or ruling applicable to such Bank, (v) to
the Agent or the Collateral Agent and (vi) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Revolving Notes or Revolving Loan Commitments or any
interest therein by such Bank, provided that such prospective transferee or
participant agrees to be bound by the confidentiality provisions contained in
this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its
Subsidiaries), provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Bank.
13.17 Judgment Currency. (a) The Borrower's obligation hereunder
and under the other Credit Documents to make payments in Dollars or, in the case
of Letters of Credit denominated in a currency other than Dollars, in such other
currency (in either such case, the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Agent, the Collateral Agent or the respective Bank of the full
amount of the Obligation Currency expressed to be payable to the Agent, the
Collateral Agent or such Bank under this Agreement or the other Credit
Documents. If for the purpose of obtaining or enforcing judgment against the
Borrower in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Dollar
Equivalent thereof, in the case of conversions into Dollars or, in the case of
conversions into a currency other than Dollars, at the rate of exchange quoted
by the Agent, determined, in each case, as of the date immediately preceding the
day on which the judgment is given (such Business Day being hereinafter referred
to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Borrower convenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Dollar Equivalent or any other
rate of exchange for this Section 13.17, such amounts shall include any premium
and costs payable in connection with the purchase of the Obligation Currency.
13.18 Miscellaneous. On the Restatement Effective Date and after
giving effect to the repayment of outstanding Original Revolving Loans on such
date as required by Section 5.05(a), the Banks shall, in coordination with the
Agent, effect interBank wire transfers to the extent necessary to ensure that
the Banks continue to participate in each Borrowing of Revolving Loans on the
Restatement Effective Date pro rata based on their Revolving Loan Commitments.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SITEL CORPORATION
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ By: ______________________
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
BANKERS TRUST COMPANY,
Individually and as Agent
By: __________________________________
Title:
U.S. BANK NATIONAL ASSOCIATION,
Individually, and as Syndication Agent
By: __________________________________
Title:
FIRST UNION NATIONAL BANK,
Individually, and as Documentation Agent
By: __________________________________
Title:
THE BANK OF NEW YORK
By: __________________________________
Title:
THE BANK OF NOVA SCOTIA
By: __________________________________
Title:
COMERICA BANK
By: __________________________________
Title:
CREDIT AGRICOLE INDOSUEZ
By: __________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: __________________________________
Title:
WACHOVIA BANK, N.A.
By: __________________________________
Title:
SCHEDULE I
__________
REVOLVING LOAN COMMITMENTS
___________________________
Revolving Loan
Bank Commitment
____ __________
Bankers Trust Company $10,000,000
U.S. Bank National Association $10,000,000
First Union National Bank $10,000,000
The Bank of New York $9,000,000
The First National Bank of Chicago $9,000,000
Comerica Bank $7,000,000
Credit Agricole Indusuez $7,000,000
The Bank of Nova Scotia $7,000,000
Wachovia Bank, N.A. $6,000,000
__________
TOTAL: $75,000,000.00
=============
SCHEDULE II
___________
BANK ADDRESSES
______________
Bank Address
____ _______
Bankers Trust Company ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Bank National Association ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
First Union National Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
NC 0737
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Comerica Bank ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Agricole Indosuez ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank of One First National Plaza
Chicago Mail Suite ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Bank, N.A. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE III
____________
SUBSIDIARIES
____________
(all 100% owned unless otherwise indicated)
SITEL International, Inc.
(Asia Pacific)(1)
- SITEL Asia Pacific Investments Pte Limited fka SITEL Asia Pacific
Holdings Pte Ltd.
- SITEL Asia Pacific Pte Limited (80%) fka Evergreen
Investments Pte Limited
- SITEL Singapore Pte Ltd.
- SITEL Japan KK
- SITEL Hong Kong Pte Ltd.
- SITEL Australia Pty Ltd. (80%) fka SITEL Levita Pty Ltd.
- SITEL Australia Holdings Pty Ltd. fka SITEL Australia Pty
Ltd.
- SITEL Telebusiness New Zealand Limited
- SITEL Telebusiness Australia Pty Limited
- SITEL Telebusiness Singapore Pte Ltd.
(Canada)
- SITEL Teleservices Canada Inc.
(Europe)
- SITEL Europe plc
- SITEL UK Limited
- SITEL Stratford [Services] Limited
- SITEL Kingston [Services]Limited
- SITEL Moor Park [Services] Limited
- SITEL Stratford Limited
- SITEL Kingston Limited
- SITEL Moor Park Limited
- B's Telemarketing Limited
- The L & R Group Limited
- ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Limited
- The Trading Works Limited
- SITEL Belgium NV fka SITEL Brussels NV
- SITEL GmbH
- SITEL Nordics AB fka Svanberg & Co. Intressenter AB
- Svanberg & Co AB
- Worldwide Sweden AB
- SITEL TMS Limited fka Telephone Marketing Services (Ireland)
Ltd
These subsidiaries reflect the changes made or being made in connection
with the closing with Lend Lease.
- Telephone Marketing Services (International) Limited
- SITEL Hispanica, S.A.
- SITEL Iberica Teleservices, S.A.
- Action Data Base S.A. fka Teleaction Data Base S.A.
- Telepromotion S.A. (75%)
- Moma Pars S.L.
- Triana 24 SL
- Action Servicos de Publicidade S.A.
(Latin America)
- Grupo SITEL de Mexico, S.A. de C.V. (49%)
- GCI Colobmia, S.A. (94%)
SITEL Technical Services, Inc.
SITEL Insurance Services, Inc.
Financial Insurance Services, Inc.
SITEL Support Services, Inc.
National Action Financial Services, Inc.
SITEL Software, Inc.
SITEL Investments, Inc.
SITEL Insurance Marketing Services, Inc.
Companies listed at the left margin are directly-owned Subsidiaries of the
Borrower. The Borrower also owns one share of SITEL Europe plc with the rest of
the shares owned by SITEL International, Inc. Below each directly-owned
Subsidiary of the Borrower is a list of Subsidiaries which are directly-owned by
such directly-owned Subsidiaries of the Borrower. The indirectly-owned
Subsidiaries of the directly-owned Subsidiaries of the Borrower are listed in a
similar manner.
SCHEDULE IV
EXISTING INDEBTEDNESS
Bank/
Borrower Counterparty Facility Type Purpose Maturity Balance(1)
____________ ____________ _____________ ____________ ________ ________
BANK
DEBT
SITEL Europe Royal Bank Overdrafts Operations n/a $6,604,000
of Scotland
SITEL Royal Bank Overdrafts Operations n/a $1,631,000
Stratford of Scotland
L&R Barclays Overdrafts Operations n/a $18,000
Bank
SITEL Credit Revolving Operations n/a $864,000
Belgium Lyonnais Credit
SITEL Credite Bank Revolving Operations n/a $280,000
Belgium Credit
SITEL BBL Revolving Operations n/a $270,000
Belgium Credit
SITEL Generale Revolving Operations n/a $1,316,000
Belgium Bank Credit
SITEL GmbH Commerzbank Revolving Operations n/a $362,000
Credit
SITEL GmBh Dresdner Revolving Operations n/a $581,000
Bank Credit
SITEL Various Poliza de Operations 6/30/98 $3,999,000
Iberica Spanish credito
Teleservices ▇▇▇▇▇
▇▇▇▇▇▇ National Construction American 3/31/01 $3,948,000
(SITEL Asia Australia Loan Express Call
Pacific) Bank Centre
LONG TERM
DEBT
SITEL South Dakota Installment Economic 3/2/00 $116,000
Corporation Loan Development
Loan
SITEL Oracle Installment Software 12/31/99 $2,811,374
Corporation Corporation Loan Purchase
SITEL IBM Installment Equipment 6/4/99 $1,506,569
Corporation Loan Loan
SITEL Generale Belgacom Secured on n/a $146,000
Belgium Bank Finance Debts
SITEL Generale MSN Finance Secured on n/a $90,000
Belgium Bank Debts
SITEL Generale Mercom Secured on n/a $192,000
Belgium Bank Finance Debts
SITEL Latin Various Equipment Equipment 3/31/98 $1,279,559
America Notes Financing
SITEL Latin Various Equipment Equipment 11/30/98 $2,544,441
America Notes Financing
CAPITAL
LEASES
National Various Lease Equipment 9/30/00 $237,943
Action Vendors Leases
Financial
Services
SITEL Various Lease Acquisition 11/30/99 $636,114
Corporation Vendors Equipment
Leases
SITEL Various Lease Equipment 3/31/00 $2,481,000
Iberica Vendors Leases
Teleservices
SITEL Europe Various Lease Phone 2/28/01 $12,009,00
Vendors Equipment 0
Leases
Telebusiness Various Lease Equipment 6/30/00 $1,845,000
Australia Vendors Leases __________
SITEL Asia Various Lease Equipment 9/30/99 $462,000
Pacific Vendors Leases
SITEL Asia Various Lease Equipment 12/31/99 $281,000
Pacific Vendors Leases
__________
Total $ 46,090,593
==========
All balances as of 12/31/97, and there are no material differences between
12/31/97 and the Restatement Effective Date.
EXISTING LIENS
______________
Filing Secured File Original Description Permitted
Location Debtor Party Number(1) File Date of Collateral Refinancing
________ ___________ ___________ ___________ _________ ____________ ___________
CO SITEL IBM Credit 19972048421 6/12/97 IBM equipment Yes
Corporation Corp.
CO SITEL Business 942050037 7/5/94 Canon Copier & Yes
Corporation Equipment Stapler/Sorter
Leasing Co.
NE SITEL Business 9991527333 9/3/91 Sharp Yes
Corporation Leasing, copier/collator
Inc.
NE SITEL Pitney 9992562228 9/8/92 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Northern 9992562700 9/14/92 leased computer Yes
Corporation Telecom equipment,
Finance products &
Corp. proceeds
NE SITEL Pitney 9992568233 11/16/92 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Norwest 9993583083 4/13/93 leased equipment Yes
Corporation Bank NE
NE SITEL Pitney 9994627061 7/5/94 leased equipment, Yes
Corporation ▇▇▇▇▇ inventory,
Credit products &
Corporation proceeds
NE SITEL ▇▇▇▇▇ 9995653206 4/10/95 Sharp office Yes
Corporation Office equipment
Products
NE SITEL Pitney 9995660502 6/21/95 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Pitney 9995660504 6/21/95 leased equipment Yes
Corporation ▇▇▇▇▇ & products
Credit
Corporation
NE SITEL ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 10/17/95 Sharp office Yes
Corporation Office equipment
Products
NE SITEL ▇▇▇▇▇▇▇ 9995671643 10/25/95 Canon copiers, Yes
Corporation County Bank staplers,
& Trust sorters, products
& proceeds
NE SITEL Pitney 9996685039 3/11/96 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Pitney 9996694626 6/3/96 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Business 9996697544 7/1/96 leased office Yes
Corporation Credit equipment
Leas.
NE SITEL ▇▇▇▇▇▇▇ Co. 9996702389 8/21/96 Canon copiers, Yes
Corporation Bank & staplers, sorter,
Trust equipment,
products &
proceeds
NE SITEL Pitney 9996707775 10/11/96 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Pitney 999670776 10/11/96 leased equipment, Yes
Corporation ▇▇▇▇▇ products &
Credit proceeds
Corporation
NE SITEL Business 9997724038 3/10/97 copier & office Yes
Corporation Credit equipment
Leas.
NE SITEL IBM 9997735431 6/12/97 IBM equipment Yes
Corporation Corporation
TX SITEL American 95- 4/26/95 Canon copier, Yes
Corporation Nat'l Bank ▇▇▇▇▇▇▇▇ stapler, sorter
TX SITEL IBM Credit 97- 6/12/97 IBM equipment Yes
Corporation Corp. 00122818
TX SITEL IBM Credit 97- 6/12/97 IBM equipment Yes
Corporation Corp. 00122819
WI SITEL PNC Leasing 1655525 3/14/97 finance lease, Yes
Technical Corp. equipment
Services,
Inc.
WI SITEL PNC Leasing 1655526 3/14/97 finance lease, Yes
Technical Corp. equipment
Services,
Inc.
WI SITEL PNC Leasing 1655527 3/14/97 finance lease, Yes
Technical Corp. equipment
Services,
Inc.
NY National AT&T Credit 199509 10/3/95 AT&T Definity Yes
Action Corp. Generic lease
Financial
Services,
Inc.
GA National AT&T 9404228 6/10/94 Equipment Lease Yes
(DeKalb Action Capital
County) Financial Corporation
Services,
Inc.
GA National ▇▇▇▇▇ 9404515 6/20/94 Equipment Lease Yes
(DeKalb Action Financial
County) Financial Corporation
Services,
Inc.
GA National American 007858 8/21/95 Equipment Lease Yes
(DeKalb Action Business (computer
County) Financial Credit equipment)
Services, Corporation
Inc.
GA National AT&T Credit 07031 4/24/95 Equipment Lease Yes
(▇▇▇▇▇▇ Action Corporation (Definity G3S)
County) Financial
Services,
Inc.
GA National Provident 08824 5/16/95 Equipment Lease Yes
(▇▇▇▇▇▇ Action Capital (voice mail
County) Financial Group, Inc. system)
Services,
Inc.
NE SITEL Pitney 9997747067 10/14/97 Equipment Lease; Yes
Corporation ▇▇▇▇▇ Proceeds/
Credit Collateral, Other
Corporation
NE SITEL Sharp 9997755259 12/08/97 Sharp Copier & Yes
Corporation Electronic 1 Fax; Equipment
Credit Co.
NE SITEL, PNC Leasing ▇▇▇▇▇▇▇▇▇▇ 3/18/97 Finance Lease; Yes
Technical Corp. Equipment
Services, Proceeds/
inc. Collateral
NE SITEL, PNC Leasing 9997725212 3/18/97 Finance Lease; Yes
Technical Corp. Equipment
Services, Proceeds/
Inc. Collateral
Also, (i) the capital leases for the various Foreign Subsidiaries as set
forth on Schedule IV and (ii) any Foreign Subsidiary Third Party Borrowings
set forth on Schedule IV.
NOTE: The line of credit giving rise to the following expired before July 1997
but the financing statements have not been terminated at the filing office. We
are obtaining and filing UCC Termination Statements for these.
GA National First Union 9404403 6/16/94 Fixtures NO
(DeKalb Action National
County) Financial bank of
Services, Georgia
Inc.
GA National First Union 005489 6/19/95 Accounts NO
(DeKalb Action National Receivables/
County) Financial Bank of Contract
Services, Georgia Rights/General
Inc. Intangibles
GA National First Union 001472 2/12/96 Amendment #005489 NO
(DeKalb Action National Accounts
County) Financial Bank of Receivable/
Services, Georgia Contract
Inc. Rights/General
Intangibles/
Equipment/Fixture
/Proceeds
Includes renewals, replacements and extensions of such liens in accordance
with Section 9.01(iii).
SCHEDULE VI
___________
SALE/LEASEBACK PROPERTIES
_________________________
1) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE VII
____________
EXISTING INVESTMENTS
____________________
490 shares of SITEL Insurance Services Canada Inc. common stock (49%)
38.6% of Software Associates (Asia) Ltd. held by SITEL Asia Pacific Investments
Pte Limited
38.6% of Software Associates (NSW) pty Ltd. held by SITEL Asia Pacific
Investments Pte Limited
38.6% of International Research pty Ltd. Held by SITEL Asia Pacific Investments
Pte Limited
SCHEDULE VIII
____________
EXISTING LETTERS OF CREDIT
___________________________
Borrower Bank Beneficiary Expiry Date Currency Balance (1)
_______ ____ ___________ ___________ ________ __________
SITEL U.S. Bank State of 2/28/98 USD 128,000
Corporation N.A. South Dakota
SITEL U.S. Bank National 9/10/98 USD 3,200,000
Corporation N.A. Australia
Bank
Balances as of 12/31/97.
TABLE OF CONTENTS
_________________
Page
____
SECTION 1. Amount and Terms of Credit........................ 1
1.01 The Commitments.................................... 1
1.02 Minimum Amount of Each Borrowing................... 3
1.03 Notice of Borrowing................................ 3
1.04 Disbursement of Funds.............................. 4
1.05 Notes.............................................. 5
1.06 Conversions........................................ 5
1.07 Pro Rata Borrowings................................ 6
1.08 Interest........................................... 6
1.09 Interest Periods................................... 7
1.10 Increased Costs, Illegality, etc................... 8
1.11 Compensation....................................... 10
1.12 Change of Lending Office........................... 10
1.13 Replacement of Banks............................... 10
SECTION 2. Letters of Credit................................ 11
2.01 Letters of Credit................................. 11
2.02 Maximum Letter of Credit Outstandings;
Final Maturities.................................. 12
2.03 Letter of Credit Requests; Minimum Stated Amount.. 12
2.04 Letter of Credit Participations................... 13
2.05 Agreement to Repay Letter of Credit Drawings...... 15
2.06 Increased Costs................................... 16
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment....................................... 17
3.01 Fees.............................................. 17
3.02 Voluntary Termination of Unutilized Commitments... 18
3.03 Mandatory Reduction of Commitments................ 18
SECTION 4. Prepayments; Payments; Taxes..................... 19
4.01 Voluntary Prepayments............................. 19
4.02 Mandatory Repayments.............................. 20
4.03 Method and Place of Payment....................... 21
4.04 Net Payments...................................... 22
SECTION 5. Conditions Precedent to the Restatement Effective
Date............................................. 23
5.01 Execution of Agreement; Notes..................... 23
5.02 Officer's Certificate............................. 24
5.03 Opinions of Counsel............................... 24
5.04 Corporate Documents; Proceedings; etc............. 24
5.05 Senior Subordinated Notes; etc.................... 24
5.06 Adverse Change, etc............................... 25
5.07 Litigation........................................ 25
5.08 Pledge Agreement.................................. 25
5.09 Security Agreement................................ 26
5.10 Subsidiaries Guaranty............................. 26
5.11 Financial Statements; Pro Forma Balance Sheet;
Projections....................................... 26
5.12 Solvency Certificate.............................. 26
5.13 Initial Borrowing Base Certificate................ 26
5.14 Fees, etc......................................... 26
SECTION 6. Conditions Precedent to All Credit Events........ 27
6.01 Restatement Effective Date........................ 27
6.02 No Default; Representations and Warranties........ 27
6.03 Notice of Borrowing; Letter of Credit Request..... 27
SECTION 7. Representations, Warranties and Agreements....... 27
7.01 Corporate Status.................................. 28
7.02 Corporate and Other Power and Authority........... 28
7.03 No Violation...................................... 28
7.04 Approvals......................................... 29
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc..................... 29
7.06 Litigation........................................ 30
7.07 True and Complete Disclosure...................... 30
7.08 Use of Proceeds; Margin Regulations............... 30
7.09 Tax Returns and Payments.......................... 31
7.10 Compliance with ERISA............................. 31
7.11 The Security Documents............................ 32
7.12 Properties........................................ 33
7.13 Capitalization.................................... 33
7.14 Subsidiaries...................................... 33
7.15 Compliance with Statutes, etc..................... 33
7.16 Investment Company Act............................ 33
7.17 Public Utility Holding Company Act................ 33
7.18 Environmental Matters............................. 33
7.19 Labor Relations................................... 34
7.20 Patents, Licenses, Franchises and Formulas........ 35
7.21 Indebtedness...................................... 35
7.22 Senior Subordinated Notes......................... 35
SECTION 8. Affirmative Covenants............................ 35
8.01 Information Covenants............................. 35
8.02 Books, Records and Inspections; Annual Meetings... 38
8.03 Maintenance of Property; Insurance................ 38
8.04 Corporate Franchises.............................. 39
8.05 Compliance with Statutes, etc..................... 39
8.06 Compliance with Environmental Laws................ 39
8.07 ERISA............................................. 39
8.08 End of Fiscal Years; Fiscal Quarters.............. 40
8.09 Performance of Obligations........................ 40
8.10 Payment of Taxes.................................. 41
8.11 Pledge of Foreign Subsidiaries Stock.............. 41
8.12 Margin Stock...................................... 41
SECTION 9. Negative Covenants............................... 41
9.01 Liens............................................. 41
9.02 Consolidation, Merger, Purchase or Sale of Assets,
etc............................................... 44
9.03 Restricted Payment................................ 47
9.05 Advances, Investments and Loans................... 49
9.06 Transactions with Affiliates...................... 51
9.08 Consolidated Interest Coverage Ratio.............. 53
9.09 Maximum Leverage Ratio............................ 54
9.10 Minimum Consolidated EBITDA....................... 54
9.11 Limitation on Modifications of Certificate of
Incorporation, By-Laws, SAP Joint Venture Documents
and Senior Subordinated Note Documents; etc....... 54
9.12 Limitation on Certain Restrictions on Subsidiaries 55
9.13 Limitation on Issuance of Capital Stock........... 55
9.14 Business.......................................... 55
9.15 Limitation on Creation of Subsidiaries............ 55
9.16 SAP Joint Venture Arrangements.................... 56
SECTION 10. Events of Default............................... 56
10.01 Payments......................................... 56
10.02 Representations, etc............................. 56
10.03 Covenants........................................ 56
10.04 Default Under Other Agreements................... 57
10.05 Bankruptcy, etc.................................. 57
10.06 ERISA............................................ 57
10.07 Security Documents............................... 58
10.08 Subsidiaries Guaranty............................ 58
10.09 Judgments........................................ 58
10.10 Change of Control................................ 58
SECTION 11. Definitions and Accounting Terms................ 59
11.01 Defined Terms.................................... 59
SECTION 12. The Agent....................................... 78
12.01 Appointment...................................... 78
12.02 Nature of Duties................................. 78
12.03 Lack of Reliance on the Agent.................... 78
12.04 Certain Rights of the Agent...................... 79
12.05 Reliance......................................... 79
12.06 Indemnification.................................. 79
12.07 The Agent in its Individual Capacity............. 79
12.08 Holders.......................................... 80
12.09 Resignation by the Agent......................... 80
12.10 Syndication Agent and Documentation Agent........ 80
SECTION 13. Miscellaneous................................... 80
13.01 Payment of Expenses, etc......................... 80
13.02 Right of Setoff.................................. 81
13.03 Notices.......................................... 82
13.04 Benefit of Agreement; Assignments; Participations 82
13.05 No Waiver; Remedies Cumulative................... 84
13.06 Payments Pro Rata................................ 84
13.07 Calculations; Computations; Accounting Terms..... 85
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL............................. 85
13.09 Counterparts..................................... 86
13.10 Effectiveness.................................... 86
13.11 Headings Descriptive............................. 87
13.12 Amendment or Waiver; etc......................... 87
13.13 Survival......................................... 88
13.14 Domicile of Loans................................ 88
13.15 Register......................................... 88
13.16 Confidentiality.................................. 89
13.17 Judgment Currency................................ 89
13.18 Miscellaneous.................................... 90
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Subsidiaries
SCHEDULE IV Existing Indebtedness
SCHEDULE V Existing Liens
SCHEDULE VI Specified Sale/Leaseback Properties
SCHEDULE VII Existing Investments
SCHEDULE VIII Existing Letters of Credit
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Special Counsel to the Credit Parties
EXHIBIT E-2 Opinion of the Corporate Counsel of the Borrower
EXHIBIT F Officers' Certificate
EXHIBIT G Pledge Agreement
EXHIBIT H Security Agreement
EXHIBIT I Subsidiaries Guaranty
EXHIBIT J Solvency Certificate
EXHIBIT K Borrowing Base Certificate
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Intercompany Note
EXHIBIT N Subordination Provisions