Exhibit 99.1
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CREDIT AGREEMENT
AMONG
▇▇▇▇▇ ENTERPRISES, INCORPORATED,
AS BORROWER,
THE LENDERS NAMED HEREIN,
AS LENDERS,
KEYBANK NATIONAL ASSOCIATION,
AS LEAD ARRANGER, BOOK RUNNER AND ADMINISTRATIVE AGENT
AND
BNP PARIBAS,
AS DOCUMENTATION AGENT
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DATED AS OF
MARCH 15, 2004
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS........................................................................................ 1
Section 1.1. Definitions................................................................................... 1
Section 1.2. Accounting Terms.............................................................................. 18
Section 1.3. Terms Generally............................................................................... 18
ARTICLE II. AMOUNT AND TERMS OF CREDIT........................................................................ 18
Section 2.1. Amount and Nature of Credit................................................................... 18
Section 2.2. Revolving Loans............................................................................... 19
Section 2.3. Letters of Credit............................................................................. 19
Section 2.4. Swing Loans................................................................................... 22
Section 2.5. Interest...................................................................................... 23
Section 2.6. Evidence of Indebtedness...................................................................... 24
Section 2.7. Notice of Credit Event; Funding of Loans...................................................... 24
Section 2.8. Payment on Loans and Other Obligations........................................................ 25
Section 2.9. Prepayment.................................................................................... 26
Section 2.10. Commitment and Other Fees.................................................................... 27
Section 2.11. Modification of Commitment................................................................... 27
Section 2.12. Computation of Interest and Fees............................................................. 28
Section 2.13. Mandatory Payment............................................................................ 28
Section 2.14. Extension of Commitment...................................................................... 29
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR FIXED RATE LOANS; INCREASED CAPITAL; TAXES............... 29
Section 3.1. Requirements of Law........................................................................... 29
Section 3.2. Taxes......................................................................................... 30
Section 3.3. Funding Losses................................................................................ 32
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending Unlawful; Inability to Determine Rate...... 32
ARTICLE IV. CONDITIONS PRECEDENT.............................................................................. 33
Section 4.1. Conditions to Each Credit Event............................................................... 33
Section 4.2. Conditions to the First Credit Event.......................................................... 34
Section 4.3. Post-Closing Conditions....................................................................... 35
ARTICLE V. COVENANTS.......................................................................................... 36
Section 5.1. Insurance..................................................................................... 36
Section 5.2. Money Obligations............................................................................. 36
Section 5.3. Financial Statements and Information.......................................................... 36
Section 5.4. Financial Records............................................................................. 37
Section 5.5. Franchises; Change in Business................................................................ 37
Section 5.6. ERISA Compliance.............................................................................. 38
Section 5.7. Financial Covenants........................................................................... 38
Section 5.8. Borrowing..................................................................................... 39
Section 5.9. Liens......................................................................................... 39
Section 5.10. Regulations T, U and X....................................................................... 40
Section 5.11. Investments and Loans........................................................................ 40
Section 5.12. Merger and Sale of Assets.................................................................... 41
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Section 5.13. Acquisitions................................................................................. 42
Section 5.14. Notice....................................................................................... 43
Section 5.15. Environmental Compliance..................................................................... 43
Section 5.16. Affiliate Transactions....................................................................... 43
Section 5.17. Use of Proceeds.............................................................................. 43
Section 5.18. Subsidiary Guaranties and Pledge of Stock or Other Ownership Interest........................ 43
Section 5.19. Restricted Payments.......................................................................... 44
Section 5.20. Restrictive Agreements....................................................................... 44
Section 5.21. Other Covenants.............................................................................. 45
Section 5.22. Guaranty Under Material Indebtedness Agreement............................................... 45
Section 5.23. Pari Passu Ranking........................................................................... 45
Section 5.24. Amendment of Organizational Documents........................................................ 45
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.................................................................... 45
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification...................................... 45
Section 6.2. Corporate Authority........................................................................... 45
Section 6.3. Compliance with Laws.......................................................................... 46
Section 6.4. Litigation and Administrative Proceedings..................................................... 46
Section 6.5. Title to Assets............................................................................... 46
Section 6.6. Liens and Security Interests.................................................................. 46
Section 6.7. Tax Returns................................................................................... 46
Section 6.8. Environmental Laws............................................................................ 47
Section 6.9. Continued Business............................................................................ 47
Section 6.10. Employee Benefits Plans...................................................................... 47
Section 6.11. Consents or Approvals........................................................................ 48
Section 6.12. Solvency..................................................................................... 48
Section 6.13. Financial Statements......................................................................... 48
Section 6.14. Regulations.................................................................................. 48
Section 6.15. Material Agreements.......................................................................... 49
Section 6.16. Intellectual Property........................................................................ 49
Section 6.17. Insurance.................................................................................... 49
Section 6.18. Accurate and Complete Statements............................................................. 49
Section 6.19. Investment Company; Holding Company.......................................................... 49
Section 6.20. Defaults..................................................................................... 49
ARTICLE VII. EVENTS OF DEFAULT................................................................................. 49
Section 7.1. Payments...................................................................................... 49
Section 7.2. Special Covenants............................................................................. 50
Section 7.3. Other Covenants............................................................................... 50
Section 7.4. Representations and Warranties................................................................ 50
Section 7.5. Cross Default................................................................................. 50
Section 7.6. ERISA Default................................................................................. 50
Section 7.7. Change in Control............................................................................. 50
Section 7.8. Money Judgment................................................................................ 50
Section 7.9. Material Adverse Change....................................................................... 50
Section 7.10. Validity of Loan Documents................................................................... 51
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Section 7.11. Solvency..................................................................................... 51
ARTICLE VIII. REMEDIES UPON DEFAULT........................................................................... 51
Section 8.1. Optional Defaults............................................................................. 51
Section 8.2. Automatic Defaults............................................................................ 52
Section 8.3. Letters of Credit............................................................................. 52
Section 8.4. Offsets....................................................................................... 52
Section 8.5. Equalization Provision........................................................................ 53
Section 8.6. Other Remedies................................................................................ 53
ARTICLE IX. THE AGENT......................................................................................... 53
Section 9.1. Appointment and Authorization................................................................. 53
Section 9.2. Note Holders.................................................................................. 54
Section 9.3. Consultation With Counsel..................................................................... 54
Section 9.4. Documents..................................................................................... 54
Section 9.5. Agent and Affiliates.......................................................................... 54
Section 9.6. Knowledge of Default.......................................................................... 54
Section 9.7. Action by Agent............................................................................... 54
Section 9.8. Notice of Default............................................................................. 54
Section 9.9. Indemnification of Agent...................................................................... 55
Section 9.10. Successor Agent.............................................................................. 55
Section 9.11. Other Agents................................................................................. 55
ARTICLE X. MISCELLANEOUS...................................................................................... 55
Section 10.1. Lenders' Independent Investigation........................................................... 55
Section 10.2. No Waiver; Cumulative Remedies............................................................... 56
Section 10.3. Amendments, Consents......................................................................... 56
Section 10.4. Notices...................................................................................... 56
Section 10.5. Costs, Expenses and Taxes.................................................................... 56
Section 10.6. Indemnification.............................................................................. 57
Section 10.7. Obligations Several; No Fiduciary Obligations................................................ 57
Section 10.8. Execution in Counterparts.................................................................... 57
Section 10.9. Binding Effect; Borrower's Assignment........................................................ 58
Section 10.10. Lender Assignments.......................................................................... 58
Section 10.11. Sale of Participations...................................................................... 59
Section 10.12. Severability of Provisions; Captions; Attachments........................................... 60
Section 10.14. Entire Agreement............................................................................ 61
Section 10.15. Legal Representation of Parties............................................................. 61
Section 10.16. Currency.................................................................................... 61
Section 10.17. Governing Law; Submission to Jurisdiction................................................... 61
Section 10.18. Jury Trial Waiver........................................................................... Signature Page 1
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Swing Line Note
Exhibit C Form of Notice of Loan
Exhibit D Form of Compliance Certificate
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Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Request for Extension
Schedule 1 Commitment of Lenders
Schedule 2 Guarantors of Payment
Schedule 3 Pledged Securities
Schedule 5.8 Indebtedness
Schedule 5.9 Liens
Schedule 5.11 Permitted Foreign Subsidiary Loans and Investments
Schedule 6.1 Corporate Existence/Subsidiaries
Schedule 6.4 Litigation
Schedule 6.10 Employee Benefit Plans
Schedule 6.15 Material Agreements
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This CREDIT AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made effective as of the
15th day of March, 2004, among:
(a) ▇▇▇▇▇ ENTERPRISES, INCORPORATED, a Florida
corporation ("Borrower");
(b) the lenders listed on Schedule 1 hereto and each
other Eligible Transferee, as hereinafter defined, that becomes a party
hereto pursuant to Section 10.10 hereof (collectively, the "Lenders"
and, individually, each a "Lender");
(c) KEYBANK NATIONAL ASSOCIATION, as lead arranger, book
runner and administrative agent for the Lenders under this Agreement
("Agent"); and
(d) BNP PARIBAS, as documentation agent ("Documentation
Agent").
WITNESSETH:
WHEREAS, Borrower, Agent and the Lenders desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrower upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Acquisition" shall mean any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of any Person, or any
business or division of any Person (other than a Company), (b) the acquisition
of in excess of fifty percent (50%) of the stock (or other equity interest) of
any Person (other than a Company), or (c) the acquisition of another Person
(other than a Company) by a merger, amalgamation or consolidation or any other
combination with such Person.
"Additional Commitment" shall mean that term as defined in Section
2.11(b) hereof.
"Additional Lender" shall mean a financial institution that shall
become a Lender during the Commitment Increase Period pursuant to Section
2.11(b) hereof.
"Additional Lender Assumption Agreement" shall mean an additional
lender assumption agreement, in form and substance satisfactory to Agent,
wherein an Additional Lender shall become a Lender.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Lender in respect of the Debt, if such payment results in that
Lender having less than its pro rata share of the Debt then outstanding, than
was the case immediately before such payment.
"Affiliate" shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and "control" (including
the correlative meanings, the terms "controlling", "controlled by" and "under
common control with") shall mean the power, directly or indirectly, to direct or
cause the direction of the management and policies of a Company, whether through
the ownership of voting securities, by contract or otherwise.
"Agent Fee Letter" shall mean the Agent Fee Letter between Borrower and
Agent, dated as of the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.
"Alternate Currency" shall mean Euros, Canadian Dollars, Pounds
Sterling, Krona, or any other currency, other than Dollars, agreed to by Agent
that shall be freely transferable and convertible into Dollars.
"Alternate Currency Exposure" shall mean, at any time and without
duplication, the sum of the Dollar Equivalent of (a) the aggregate principal
amount of Alternate Currency Loans, and (b) the Letter of Credit Exposure that
is denominated in one or more Alternate Currencies.
"Alternate Currency Loan" shall mean a Loan described in Section 2.2
hereof that shall be denominated in an Alternate Currency and on which Borrower
shall pay interest at a rate based upon the Alternate Currency Rate applicable
to such Alternate Currency.
"Alternate Currency Maximum Amount" shall mean, at any time, the Dollar
Equivalent of Forty Million Dollars ($40,000,000).
"Alternate Currency Rate" shall mean, with respect to an Alternate
Currency Loan, for any Interest Period, a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the nearest 1/16th of 1%) by
dividing (a) the rate of interest, determined by Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error)
as of approximately 11:00 A.M. (London time) two Business Days prior to the
beginning of such Interest Period pertaining to such Alternate Currency Loan, as
listed on British Bankers Association Interest Rate LIBOR 01 or 02 as provided
by Reuters (or, if for any reason such rate is unavailable from Reuters, from
any other similar company or service that provides rate quotations comparable to
those currently provided by Reuters) as the rate in the London interbank market
for deposits in the relevant Alternate Currency in immediately available funds
with a maturity comparable to such Interest Period, provided that, in the event
that such rate quotation is not available for any reason, then the Alternate
Currency Rate shall be the average (rounded upward to the nearest 1/16th of 1%)
of the per annum rates at which deposits in immediately available funds in the
relevant Alternate Currency for the relevant Interest Period and in the amount
of the Alternate Currency Loan to be disbursed or to remain outstanding
2
during such Interest Period, as the case may be, are offered to Agent (or an
affiliate of Agent, in Agent's discretion) by prime banks in any Alternate
Currency market reasonably selected by Agent, determined as of 11:00 A.M.
(London time) (or as soon thereafter as practicable), two Business Days prior to
the beginning of the relevant Interest Period pertaining to such Alternate
Currency Loan hereunder; by (b) 1.00 minus the Reserve Percentage.
"Applicable Alternate Commitment Fee Rate" shall mean:
(a) for the period from the Closing Date through March 31, 2004,
twenty-five (25) basis points; and
(b) commencing with the Consolidated financial statements of
Borrower for the fiscal quarter ending December 31, 2003, the number of basis
points set forth in the following matrix, based upon the result of the
computation of the Leverage Ratio, shall be used to establish the number of
basis points that will go into effect on April 1, 2004 and thereafter:
LEVERAGE RATIO APPLICABLE ALTERNATE COMMITMENT FEE RATE
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Greater than or equal to 1.50 to 1.00 35.00 basis points
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Greater than or equal to 1.00 to 1.00 but less than 1.50
to 1.00 30.00 basis points
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Greater than or equal to 0.50 to 1.00 but less than 1.00
to 1.00 27.50 basis points
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Less than 0.50 to 1.00 25.00 basis points
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After April 1, 2004, changes to the Applicable Alternate Commitment Fee Rate
shall be effective on the first day of each month following the date upon which
Agent received, or, if earlier, Agent should have received, pursuant to Section
5.3(a) or (b) hereof, the financial statements of the Companies. The above
matrix does not modify or waive, in any respect, the requirements of Section 5.7
hereof, the rights of Agent and the Lenders to charge the Default Rate, or the
rights and remedies of Agent and the Lenders pursuant to Articles VII and VIII
hereof. Notwithstanding anything herein to the contrary, during any period when
Borrower shall have failed to timely deliver the financial statements pursuant
to Sections 5.3(a) and (b) hereof, until such time as the appropriate financial
statements are delivered, the Applicable Alternate Commitment Fee Rate shall be
the highest rate per annum indicated in the above pricing grid regardless of the
Leverage Ratio at such time.
"Applicable Margin" shall mean:
(a) for the period from the Closing Date through March 31, 2004,
one hundred twenty-five (125) basis points for LIBOR Fixed Rate Loans and zero
(0) basis points for Base Rate Loans; and
(b) commencing with the Consolidated financial statements of
Borrower for the fiscal quarter ending December 31, 2003, the number of basis
points (depending upon whether Loans are LIBOR Fixed Rate Loans or Base Rate
Loans) set forth in the following matrix, based upon
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the result of the computation of the Leverage Ratio, shall be used to establish
the number of basis points that will go into effect on April 1, 2004 and
thereafter:
APPLICABLE BASIS APPLICABLE BASIS
POINTS FOR LIBOR POINTS FOR
LEVERAGE RATIO FIXED RATE LOANS BASE RATE LOANS
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Greater than or equal to 1.50 to 1.00 225.00 50.00
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Greater than or equal to 1.00 to 1.00 but less than
1.50 to 1.00 175.00 0.00
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Greater than or equal to 0.50 to 1.00 but less than
1.00 to 1.00 150.00 0.00
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Less than 0.50 to 1.00 125.00 0.00
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After April 1, 2004, changes to the Applicable Margin shall be effective on the
first day of each month following the date upon which Agent received, or, if
earlier, Agent should have received, pursuant to Section 5.3(a) or (b) hereof,
the financial statements of the Companies. The above matrix does not modify or
waive, in any respect, the requirements of Section 5.7 hereof, the rights of
Agent and the Lenders to charge the Default Rate, or the rights and remedies of
Agent and the Lenders pursuant to Articles VII and VIII hereof. Notwithstanding
anything herein to the contrary, during any period when Borrower shall have
failed to timely deliver the financial statements pursuant to Section 5.3(a) and
(b) hereof, until such time as the appropriate financial statements are
delivered, the Applicable Margin shall be the highest rate per annum indicated
in the above pricing grid regardless of the Leverage Ratio at such time.
"Assignment Agreement" shall mean an Assignment and Acceptance
Agreement in the form of the attached Exhibit E.
"Assumption Effective Date" shall mean that term as defined in Section
2.11(b) hereof.
"Authorized Officer" shall mean a Financial Officer, the Vice President
and General Counsel, or any other individual authorized by a Financial Officer
in writing (with a copy to Agent) to handle certain administrative matters in
connection with this Agreement.
"Base Rate" shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (.50%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate shall be effective immediately from
and after such change in the Base Rate.
"Base Rate Loan" shall mean a Revolving Loan described in Section 2.2
hereof, that shall be denominated in Dollars and on which Borrower shall pay
interest at a rate based on the Derived Base Rate.
"Borrower Investment Policy" shall mean the Investment Policy of
Borrower in effect as of the Closing Date, together with such modifications as
approved from time to time by the Board of Directors of Borrower.
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"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which national banks are authorized or required to close, and, if
the applicable Business Day shall relate to a Eurodollar Loan, a day of the year
on which dealings in deposits are carried on in the London interbank Eurodollar
market and, if the applicable Business Day relates to an Alternate Currency, a
day of the year on which dealings in deposits are carried on in the relevant
Alternate Currency.
"Capital Distribution" shall mean a payment made, liability incurred or
other consideration given by a Company to any Person that is not a Company, for
the purchase, acquisition, redemption, repurchase or retirement of any capital
stock or other equity interest of such Company or as a dividend, return of
capital or other distribution (other than any stock dividend, stock split or
other equity distribution payable only in capital stock or other equity of such
Company) in respect of such Company's capital stock or other equity interest.
"Cash Equivalent Investments" shall mean (a) short-term obligations of,
or fully guaranteed by, the United States of America, (b) commercial paper rated
A-2 or better by Standard & Poor's or P-2 or better by Moody's with maturities
of not more than twelve (12) months from the date of acquisition, (c) demand
deposit accounts maintained in the ordinary course of business, and (d)
certificates of deposit maturing within one year from the date of acquisition
thereof issued by and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of One Hundred Million Dollars
($100,000,000); provided, in each case, that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest.
"Change in Control" shall mean (a) the acquisition of, or, if earlier,
the shareholder or director approval of the acquisition of, ownership or voting
control, directly or indirectly, beneficially or of record, on or after the
Closing Date, by any Person (other than ▇▇▇▇ ▇▇▇▇▇) or group (within the meaning
of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as then in
effect), of shares representing more than thirty percent (30%) of the aggregate
ordinary Voting Power represented by the issued and outstanding capital stock of
Borrower; (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors or other governing body of Borrower by Persons
who were neither (i) nominated by the board of directors or other governing body
of Borrower nor (ii) appointed by directors so nominated; (c) the occurrence of
a change in control, or other similar provision, as defined in any Material
Indebtedness Agreement; or (d) Borrower shall no longer be subject to the
periodical and other reporting requirements of Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as then in effect.
"Closing Commitment Amount" shall mean Fifty Million Dollars
($50,000,000).
"Closing Date" shall mean the effective date of this Agreement as set
forth in the first paragraph of this Agreement.
"Closing Fee Letter" shall mean the Closing Fee Letter between Borrower
and Agent, dated as of the Closing Date.
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"Code" shall mean the Internal Revenue Code of 1986, as amended,
together with the rules and regulations promulgated thereunder.
"Commitment" shall mean the obligation hereunder of the Lenders, during
the Commitment Period, to make Loans and to participate in Swing Loans and the
issuance of Letters of Credit pursuant to the Revolving Credit Commitments, up
to the Total Commitment Amount.
"Commitment Increase Period" shall mean the period from the Closing
Date to December 31, 2006.
"Commitment Percentage" shall mean, for each Lender, the percentage set
forth opposite such Lender's name under the column headed "Commitment
Percentage", as listed in Schedule 1 hereto.
"Commitment Period" shall mean the period from the Closing Date to
March 14, 2007, or such earlier date on which the Commitment shall have been
terminated pursuant to Article VIII hereof.
"Companies" shall mean Borrower and all Subsidiaries.
"Company" shall mean Borrower or a Subsidiary.
"Compliance Certificate" shall mean a certificate, substantially in the
form of the attached Exhibit D.
"Consideration" shall mean, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance of
securities or notes, the assumption or incurring of liabilities (direct or
contingent), the payment of consulting fees or fees for a covenant not to
compete and any other consideration paid for such Acquisition.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Borrower and its Subsidiaries in accordance with GAAP, including
principles of consolidation consistent with those applied in preparation of the
consolidated financial statements referred to in Section 6.13 hereof.
"Consolidated Current Liabilities" shall mean, at any date, the current
liabilities of Borrower, as determined on a Consolidated basis and in accordance
with GAAP.
"Consolidated Depreciation and Amortization Charges" shall mean, for
any period, the aggregate of all depreciation and amortization charges
(specifically including amortization of deferred grants) for fixed assets,
leasehold improvements and general intangibles (specifically including goodwill)
of Borrower for such period, as determined on a Consolidated basis and in
accordance with GAAP.
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"Consolidated EBIT" shall mean, for any period, on a Consolidated basis
and in accordance with GAAP, Consolidated Net Earnings for such period plus the
aggregate amounts deducted in determining such Consolidated Net Earnings in
respect of (a) Consolidated Interest Expense, (b) Consolidated Income Tax
Expense, and (c) special non-cash losses and charges and other non-recurring
non-cash losses and charges.
"Consolidated EBITDA" shall mean, for any period, on a Consolidated
basis and in accordance with GAAP, Consolidated EBIT plus Consolidated
Depreciation and Amortization Charges.
"Consolidated Funded Indebtedness" shall mean, for any period, Funded
Indebtedness of Borrower for such period, as determined on a Consolidated basis
and in accordance with GAAP.
"Consolidated Income Tax Expense" shall mean, for any period, all
provisions for taxes based on the gross or net income of Borrower, as determined
on a Consolidated basis and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, the
interest expense of Borrower for such period, as determined on a Consolidated
basis and in accordance with GAAP.
"Consolidated Net Earnings" shall mean, for any period, the net income
(loss) of Borrower for such period, as determined on a Consolidated basis and in
accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, at any date, the net book
value (after deducting all applicable reserves and excluding any re-appraisal or
write-up of assets) of the assets (other than patents, goodwill, treasury stock
and other intangibles) of Borrower, as determined on a Consolidated basis and in
accordance with GAAP.
"Controlled Group" shall mean a Company and each Person required to be
aggregated with a Company under Code Section 414(b), (c), (m) or (o).
"Credit Event" shall mean the making by the Lenders of a Loan, the
conversion by the Lenders of a Base Rate Loan to a Eurodollar Loan, the
continuation by the Lenders of a Eurodollar Loan after the end of the applicable
Interest Period, the making by the Swing Line Lender of a Swing Loan, or the
issuance by the Fronting Lender of a Letter of Credit.
"Credit Party" shall mean Borrower and any Subsidiary or Affiliate that
is a Guarantor of Payment.
"Debt" shall mean, collectively, (a) all Indebtedness and other
obligations incurred by Borrower or a Guarantor of Payment to Agent, the Swing
Line Lender, the Fronting Lender, or any Lender (or any affiliate thereof)
pursuant to this Agreement and includes the principal of and interest on all
Notes and all obligations pursuant to Letters of Credit; (b) each extension,
renewal or refinancing thereof in whole or in part; and (c) the commitment fees,
other fees and any prepayment fees payable hereunder, and all fees and charges
in connection with the Letters of Credit.
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"Default" shall mean an event or condition that constitutes, or with
the lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default, and that has not been waived by the Required
Lenders in writing.
"Default Rate" shall mean (a) with respect to any Loan, a rate per
annum equal to two percent (2%) in excess of the rate otherwise applicable
thereto, and (b) with respect to any other amount, if no rate is specified or
available, a rate per annum equal to two percent (2%) in excess of the Derived
Base Rate from time to time in effect.
"Derived Base Rate" shall mean a rate per annum equal to the sum of the
Applicable Margin (from time to time in effect) for Base Rate Loans plus the
Base Rate.
"Derived LIBOR Fixed Rate" shall mean (a) with respect to a Eurodollar
Loan, a rate per annum equal to the sum of the Applicable Margin (from time to
time in effect) plus the Eurodollar Rate, and (b) with respect to an Alternate
Currency Loan, a rate per annum equal to the sum of the Applicable Margin (from
time to time in effect) plus the Alternate Currency Rate applicable to the
relevant Alternate Currency.
"Dollar" or the sign $ shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean (a) with respect to an Alternate
Currency Loan or Letter of Credit denominated in an Alternate Currency, the
Dollar equivalent of the amount of such Alternate Currency Loan or Letter of
Credit denominated in such Alternate Currency, determined by Agent on the basis
of its spot rate at approximately 11:00 A.M. (London time) on the date two
Business Days before the date of such Alternate Currency Loan, for the purchase
of the relevant Alternate Currency with Dollars for delivery on the date of such
Alternate Currency Loan or Letter of Credit, and (b) with respect to any other
amount, if such amount is denominated in Dollars, then such amount in Dollars
and, otherwise the Dollar equivalent of such amount, determined by Agent on the
basis of its spot rate at approximately 11:00 A.M. (London time) on the date for
which the Dollar equivalent amount of such amount is being determined, for the
purchase of the relevant Alternate Currency with Dollars for delivery on such
date; provided, however, that, in calculating the Dollar Equivalent for purposes
of determining (i) Borrower's obligation to prepay Loans and Letters of Credit
pursuant to Section 2.13 hereof, or (ii) Borrower's ability to request
additional Loans or Letters of Credit pursuant to the Commitment, Agent may, in
its discretion, on any Business Day selected by Agent (prior to payment in full
of the Debt), calculate the Dollar Equivalent of each such Loan or Letter of
Credit. Agent shall notify Borrower of the Dollar Equivalent of such Alternate
Currency Loan or any other amount, at the time that such Dollar Equivalent shall
have been determined.
"Domestic Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"Dormant Subsidiary" shall mean a Company that (a) is not a Credit
Party, (b) has aggregate assets of less than Fifty Thousand Dollars ($50,000),
and (c) has no direct or indirect Subsidiaries with aggregate assets for all
such Subsidiaries of more than Fifty Thousand Dollars ($50,000).
8
"Eligible Transferee" shall mean a commercial bank, financial
institution or other "accredited investor" (as defined in SEC Regulation D) that
is not Borrower, a Subsidiary or an Affiliate.
"Environmental Laws" shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or by any state or municipality thereof or any
foreign jurisdiction, or by any court, agency, instrumentality, regulatory
authority or commission of any of the foregoing concerning health, safety and
protection of, or regulation of the discharge of substances into, the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated pursuant thereto.
"ERISA Event" shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a risk of the imposition of an excise tax
or any other liability on a Company or of the imposition of a Lien on the assets
of a Company; (b) the engagement by a Controlled Group member in a non-exempt
"prohibited transaction" (as defined under ERISA Section 406 or Code Section
4975) or a breach of a fiduciary duty under ERISA that could result in liability
to a Company; (c) the application by a Controlled Group member for a waiver from
the minimum funding requirements of Code Section 412 or ERISA Section 302 or a
Controlled Group member is required to provide security under Code Section
401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable Event with
respect to any Pension Plan as to which notice is required to be provided to the
PBGC; (e) the withdrawal by a Controlled Group member from a Multiemployer Plan
in a "complete withdrawal" or a "partial withdrawal" (as such terms are defined
in ERISA Sections 4203 and 4205, respectively); (f) the involvement of, or
occurrence or existence of any event or condition that makes likely the
involvement of, a Multiemployer Plan in any reorganization under ERISA Section
4241; (g) the failure of an ERISA Plan (and any related trust) that is intended
to be qualified under Code Sections 401 and 501 to be so qualified or the
failure of any "cash or deferred arrangement" under any such ERISA Plan to meet
the requirements of Code Section 401(k); (h) the taking by the PBGC of any steps
to terminate a Pension Plan or appoint a trustee to administer a Pension Plan,
or the taking by a Controlled Group member of any steps to terminate a Pension
Plan; (i) the failure by a Controlled Group member or an ERISA Plan to satisfy
any requirements of law applicable to an ERISA Plan; (j) the commencement,
existence or threatening of a claim, action, suit, audit or investigation with
respect to an ERISA Plan, other than a routine claim for benefits; or (k) any
incurrence by or any expectation of the incurrence by a Controlled Group member
of any liability for post-retirement benefits under any Welfare Plan, other than
as required by ERISA Section 601, et. seq. or Code Section 4980B.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning
of ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
9
"Eurocurrency Liabilities" shall have the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar" shall mean a Dollar denominated deposit in a bank or
branch outside of the United States.
"Eurodollar Loan" shall mean a Revolving Loan described in Section 2.2
hereof that shall be denominated in Dollars and on which Borrower shall pay
interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to a Eurodollar Loan, for
any Interest Period, a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the nearest 1/16th of 1%) by dividing (a) the rate of
interest, determined by Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of approximately
11:00 A.M. (London time) two Business Days prior to the beginning of such
Interest Period pertaining to such Eurodollar Loan, as listed on British Bankers
Association Interest Rate LIBOR 01 or 02 as provided by Reuters (or, if for any
reason such rate is unavailable from Reuters, from any other similar company or
service that provides rate quotations comparable to those currently provided by
Reuters) as the rate in the London interbank market for Dollar deposits in
immediately available funds with a maturity comparable to such Interest Period,
provided that, in the event that such rate quotation is not available for any
reason, then the Eurodollar Rate shall be the average (rounded upward to the
nearest 1/16th of 1%) of the per annum rates at which deposits in immediately
available funds in Dollars for the relevant Interest Period and in the amount of
the Eurodollar Loan to be disbursed or to remain outstanding during such
Interest Period, as the case may be, are offered to Agent (or an affiliate of
Agent, in Agent's discretion) by prime banks in any Eurodollar market reasonably
selected by Agent, determined as of 11:00 A.M. (London time) (or as soon
thereafter as practicable), two Business Days prior to the beginning of the
relevant Interest Period pertaining to such Eurodollar Loan hereunder; by (b)
1.00 minus the Reserve Percentage.
"Event of Default" shall mean an event or condition that shall
constitute an event of default as defined in Article VII hereof.
"Excluded Taxes" shall mean net income taxes (and franchise taxes
imposed in lieu of net income taxes) imposed on Agent or any Lender by the
Governmental Authority located in the jurisdiction where Agent or such Lender is
organized (other than any such taxes arising solely from Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document).
"Federal Funds Effective Rate" shall mean, for any day, the rate per
annum (rounded upward to the nearest one one-hundredth of one percent (1/100 of
1%)) announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
10
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the Closing Date.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer, treasurer or controller.
Unless otherwise qualified, all references to a Financial Officer in this
Agreement shall refer to a Financial Officer of Borrower.
"Foreign Subsidiary" shall mean a Subsidiary that is organized outside
of the United States.
"Fronting Lender" shall mean, as to any Letter of Credit transaction
hereunder, Agent as issuer of the Letter of Credit, or, in the event that Agent
either shall be unable to issue or shall agree that another Lender may issue, a
Letter of Credit, such other Lender as shall agree to issue the Letter of Credit
in its own name, but on behalf of the Lenders hereunder.
"Funded Indebtedness" shall mean all Indebtedness of the Companies,
including, but not limited to, current, long-term and Subordinated Indebtedness,
if any.
"GAAP" shall mean generally accepted accounting principles as then in
effect, which shall include the official interpretations thereof by the
Financial Accounting Standards Board, applied on a basis consistent with the
past accounting practices and procedures of Borrower.
"Governmental Authority" shall mean any nation or government, any
state, province or territory or other political subdivision thereof, any
governmental agency, authority, instrumentality, regulatory body, court, central
bank or other governmental entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization.
"Guarantor" shall mean a Person that shall have pledged its credit or
property in any manner for the payment or other performance of the indebtedness,
contract or other obligation of another and includes (without limitation) any
guarantor (whether of payment or of collection), surety, co-maker, endorser or
Person that shall have agreed conditionally or otherwise to make any purchase,
loan or investment in order thereby to enable another to prevent or correct a
default of any kind.
"Guarantor of Payment" shall mean each of the Companies set forth on
Schedule 2 hereto, that are each executing and delivering a Guaranty of Payment,
or any other Person that shall deliver a Guaranty of Payment to Agent subsequent
to the Closing Date.
"Guaranty of Payment" shall mean each Guaranty of Payment of Debt
executed and delivered on or after the Closing Date in connection with this
Agreement by the Guarantors of Payment, as the same may from time to time be
amended, restated or otherwise modified.
"Hedge Agreement" shall mean any (a) hedge agreement, interest rate
swap, cap, collar or floor agreement, or other interest rate management device
entered into by a Company with any Person in connection with any Indebtedness of
the Companies, or (b) currency swap
11
agreement, forward currency purchase agreement or similar arrangement or
agreement designed to protect against fluctuations in currency exchange rates
entered into by a Company.
"Indebtedness" shall mean, for any Company (excluding in all cases
trade payables payable in the ordinary course of business by such Company),
without duplication, (a) all obligations to repay borrowed money, direct or
indirect, incurred, assumed, or guaranteed, (b) all obligations for the deferred
purchase price of capital assets, (c) all obligations under conditional sales or
other title retention agreements, (d) all obligations (contingent or otherwise)
under any letter of credit or banker's acceptance, (e) all net obligations under
any currency swap agreement, interest rate swap, cap, collar or floor agreement
or other interest rate management device or any Hedge Agreement, (f) all
synthetic leases, (g) all lease obligations that have been or should be
capitalized on the books of such Company in accordance with GAAP, (h) all
obligations of such Company with respect to asset securitization financing
programs, (i) all obligations to advance funds to, or to purchase assets,
property or services from, any other Person in order to maintain the financial
condition of such Person, and (j) any other transaction (including forward sale
or purchase agreements) having the commercial effect of a borrowing of money
entered into by such Company to finance its operations or capital requirements.
"Intercompany Note" shall mean any term note or other promissory note
evidencing any intercompany loan of Borrower to a Foreign Subsidiary of
Borrower.
"Interest Adjustment Date" shall mean the last day of each Interest
Period.
"Interest Coverage Ratio" shall mean, for the most recently completed
four fiscal quarters of Borrower, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) Consolidated EBIT to (b) Consolidated
Interest Expense.
"Interest Period" shall mean, with respect to any LIBOR Fixed Rate
Loan, the period commencing on the date such LIBOR Fixed Rate Loan is made and
ending on the last day of such period, as selected by Borrower pursuant to the
provisions hereof, and, thereafter (unless, with respect to a Eurodollar Loan,
such LIBOR Fixed Rate Loan is converted to a Base Rate Loan), each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of such period, as selected by Borrower pursuant to
the provisions hereof. The duration of each Interest Period for a LIBOR Fixed
Rate Loan shall be one month, two months, three months or six months, in each
case as Borrower may select upon notice, as set forth in Section 2.7 hereof;
provided that (a) if Borrower shall fail to so select the duration of any
Interest Period for a Eurodollar Loan at least three Business Days prior to the
Interest Adjustment Date applicable to such Eurodollar Loan, Borrower shall be
deemed to have converted such LIBOR Fixed Rate Loan to a Base Rate Loan at the
end of the then current Interest Period; and (b) each Alternate Currency Loan
must be repaid on the last day of the Interest Period applicable thereto.
"Letter of Credit" shall mean any standby letter of credit that shall
be issued by the Fronting Lender for the account of Borrower or a Guarantor of
Payment, including amendments thereto, if any, and shall have an expiration date
no later than the earlier of (a) one year after its date of issuance or (b)
thirty (30) days prior to the last day of the Commitment Period.
12
"Letter of Credit Commitment" shall mean the commitment of the Fronting
Lender, on behalf of the Lenders, to issue Letters of Credit in an aggregate
face amount of up to Fifteen Million Dollars ($15,000,000).
"Letter of Credit Exposure" shall mean, at any time, the Dollar
Equivalent of the sum of (a) the aggregate undrawn face amount of all issued and
outstanding Letters of Credit, and (b) the aggregate of the draws made on
Letters of Credit that have not been reimbursed by Borrower or converted to a
Revolving Loan pursuant to Section 2.3 hereof.
"Leverage Ratio" shall mean, at any time, as determined on a
Consolidated basis and in accordance with GAAP, the ratio of (a) Consolidated
Funded Indebtedness (for the most recently completed fiscal quarter of Borrower)
to (b) Consolidated EBITDA (for the most recently completed four fiscal quarters
of Borrower).
"LIBOR Fixed Rate Loan" shall mean a Eurodollar Loan or an Alternate
Currency Loan.
"Lien" shall mean any mortgage, security interest, lien (statutory or
other), charge, encumbrance on, pledge or deposit of, or conditional sale,
leasing, sale with a right of redemption or other title retention agreement and
any capitalized lease with respect to any property (real or personal) or asset.
"Liquidity Amount" shall mean, as determined at any time, the amount of
(a) the Total Commitment Amount, minus (b) the Revolving Credit Exposure, plus
(c) Cash Equivalent Investments.
"Loan" shall mean a Revolving Loan or a Swing Loan granted to Borrower
in accordance with Section 2.2 or 2.4 hereof.
"Loan Documents" shall mean, collectively, this Agreement, each Note,
each Guaranty of Payment, all documentation relating to each Letter of Credit,
the Agent Fee Letter and the Closing Fee Letter, as any of the foregoing may
from time to time be amended, restated or otherwise modified or replaced, and
any other document delivered pursuant thereto.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of Borrower, (b) the business, operations, property, condition
(financial or otherwise) or prospects of the Companies taken as a whole, or (c)
the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights and remedies of Agent or the Lenders hereunder or
thereunder.
"Material Indebtedness Agreement" shall mean any debt instrument,
capital lease, guaranty, contract, commitment, agreement or other arrangement
evidencing any Indebtedness of any Company or the Companies then in excess of
the amount of Five Million Dollars ($5,000,000).
13
"Maximum Amount" shall mean, for each Lender, the amount set forth
opposite such Lender's name under the column headed "Maximum Amount" as set
forth on Schedule 1 hereto, subject to decreases determined pursuant to Section
2.11(a) hereof, increases pursuant to Section 2.11(b) hereof and assignments of
interests pursuant to Section 10.10 hereof; provided, however, that the Maximum
Amount for the Swing Line Lender shall exclude the Swing Line Commitment.
"Maximum Commitment Amount" shall mean One Hundred Million Dollars
($100,000,000), or such other amount as shall be determined pursuant to Section
2.11 hereof.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
to such company.
"Multiemployer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
"Note" shall mean a Revolving Credit Note or the Swing Line Note, or
any other promissory note delivered pursuant to this Agreement.
"Notice of Loan" shall mean a Notice of Loan in the form of the
attached Exhibit C.
"Organizational Documents" shall mean, with respect to any Person
(other than an individual), such Person's Articles (Certificate) of
Incorporation, operating agreement or equivalent formation documents, and
Regulations (Bylaws), or equivalent governing documents, and any amendments to
any of the foregoing.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, goods and services
taxes, harmonized sales taxes and other sales taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan"
(within the meaning of ERISA Section 3(2)).
"Permitted Foreign Subsidiary Loans and Investments" shall mean:
(a) the investments by Borrower or a Domestic Subsidiary in a
Foreign Subsidiary, in such amounts existing as of the Closing Date and set
forth on Schedule 5.11 hereto;
(b) the loans by Borrower or a Domestic Subsidiary to a Foreign
Subsidiary, in such amounts existing as of the Closing Date and set forth on
Schedule 5.11 hereto;
14
(c) any investment by a Foreign Subsidiary in, or loan by a
Foreign Subsidiary to, a Company; and
(d) after the Closing Date, the loans by a Credit Party to, the
investments by a Credit Party in, and the guaranties by a Credit Party of the
Indebtedness of, Foreign Subsidiaries, up to the aggregate amount, for all such
loans, investments and guaranties, of Twenty Million Dollars ($20,000,000).
"Permitted Investment" shall mean (a) an investment of a Company in the
stock (or other debt or equity instruments) of a Person (other than a Company),
so long as (i) the Company making the investment is a Credit Party or a Foreign
Subsidiary, and (ii) the aggregate amount of all such investments of all
Companies does not exceed, at any time, an aggregate amount of Ten Million
Dollars ($10,000,000); and (b) the investment of Borrower existing as of the
Closing Date in SHPS, Incorporated, in an amount not in excess of Two Million
Eight Hundred Thousand Dollars ($2,800,000).
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.
"Pledge Agreement" shall mean each of the Pledge Agreements, relating
to the Pledged Securities, executed and delivered by Borrower, ▇▇▇▇▇ Global
Holdings LLC and ▇▇▇▇▇ ▇▇ Holdings LLC in favor of Agent, for the benefit of the
Lenders, dated as of the Closing Date, and any other Pledge Agreement executed
by any other Domestic Subsidiary on or after the Closing Date, as any of the
foregoing may from time to time be amended, restated or otherwise modified.
"Pledged Securities" shall mean sixty-five percent (65%) of the shares
of capital stock or other equity interest of a first-tier Foreign Subsidiary of
Borrower and any Domestic Subsidiary, whether now owned or hereafter acquired or
created, and all proceeds thereof (Schedule 3 hereto lists, as of the Closing
Date, all of the Pledged Securities).
"Prime Rate" shall mean the interest rate established from time to time
by Agent as Agent's prime rate, whether or not such rate shall be publicly
announced; the Prime Rate may not be the lowest interest rate charged by Agent
for commercial or other extensions of credit. Each change in the Prime Rate
shall be effective immediately from and after such change.
"Quick Ratio" shall mean, for the most recently completed fiscal
quarter of Borrower, as determined on a Consolidated basis and in accordance
with GAAP, the ratio of (a) the sum, for the Companies, of (i) cash and Cash
Equivalent Investments, and (ii) accounts receivable (excluding accounts
receivable owing from any Affiliate, shareholder or employee of a Company), to
(b) Consolidated Current Liabilities.
"Regularly Scheduled Payment Date" shall mean the last day of each
March, June, September and December of each year.
15
"Related Writing" shall mean each Loan Document and any other guaranty
agreement, subordination agreement, financial statement, audit report or other
writing furnished by any Credit Party, or any of its officers, to Agent or the
Lenders pursuant to or otherwise in connection with this Agreement.
"Reportable Event" shall mean a reportable event as that term is
defined in Title IV of ERISA, except actions of general applicability by the
Secretary of Labor under Section 110 of such Act.
"Request for Extension" shall mean a notice, substantially in the form
of the attached Exhibit F.
"Required Lenders" shall mean the holders of at least fifty-one percent
(51%) of the Total Commitment Amount, with such holders to be comprised of at
least two of the Lenders, or, if there shall be any borrowing hereunder, the
holders of at least fifty-one percent (51%) of the aggregate amount outstanding
under the Notes (other than the Swing Line Note), with such holders to be
comprised of at least two of the Lenders.
"Requirement of Law" shall mean, as to any Person, any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property.
"Reserve Percentage" shall mean for any day that percentage (expressed
as a decimal) that is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in Cleveland, Ohio, in respect of
Eurocurrency Liabilities. The Derived LIBOR Fixed Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
"Restricted Payment" shall mean, with respect to any Company, (a) any
Capital Distribution, (b) any amount paid by such Company in repayment,
redemption, retirement or repurchase, directly or indirectly, of any
Subordinated Indebtedness, or (c) any amount paid by such Company in respect of
any management, consulting or other similar arrangement with any director or
officer of a Company in excess of the aggregate amount of One Hundred Thousand
Dollars ($100,000) in any fiscal year.
"Revolving Credit Commitment" shall mean the obligation hereunder,
during the Commitment Period, of (a) each Lender to make Revolving Loans up to
the Maximum Amount for such Lender, (b) the Fronting Lender to issue and each
Lender to participate in Letters of Credit pursuant to the Letter of Credit
Commitment, and (c) the Swing Line Lender to make and each Lender to participate
in Swing Loans pursuant to the Swing Line Commitment.
16
"Revolving Credit Exposure" shall mean, at any time, the Dollar
Equivalent of the sum of (a) the aggregate principal amount of all Revolving
Loans outstanding, (b) the Swing Line Exposure, and (c) the Letter of Credit
Exposure.
"Revolving Credit Note" shall mean a Revolving Credit Note executed and
delivered pursuant to Section 2.6(a) hereof.
"Revolving Loan" shall mean a Loan granted to Borrower by the Lenders
in accordance with Section 2.2 hereof.
"SEC" shall mean the United States Securities and Exchange Commission,
or any governmental body or agency succeeding to any of its principle functions.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc., or any successor to such company.
"Subordinated" shall mean, as applied to Indebtedness, Indebtedness
that shall have been subordinated (by written terms or written agreement being,
in either case, in form and substance satisfactory to Agent and the Required
Lenders) in favor of the prior payment in full of the Debt.
"Subsidiary" of a Company shall mean (a) a corporation more than fifty
percent (50%) of the Voting Power of which is owned, directly or indirectly, by
such Company or by one or more other subsidiaries of such Company or by such
Company and one or more subsidiaries of such Company, (b) a partnership or
limited liability company of which such Company, one or more other subsidiaries
of such Company or such Company and one or more subsidiaries of such Company,
directly or indirectly, is a general partner or managing member, as the case may
be, or otherwise has an ownership interest greater than fifty percent (50%) of
all of the ownership interests in such partnership or limited liability company,
or (c) any other Person (other than a corporation, partnership or limited
liability company) in which such Company, one or more other subsidiaries of such
Company or such Company and one or more subsidiaries of such Company, directly
or indirectly, has at least a majority interest in the Voting Power or the power
to elect or direct the election of a majority of directors or other governing
body of such Person.
"Swing Line" shall mean the credit facility established by the Swing
Line Lender for Borrower in accordance with Section 2.4 hereof.
"Swing Line Commitment" shall mean the commitment of the Swing Line
Lender to make Swing Loans to Borrower up to the aggregate amount at any time
outstanding of Ten Million Dollars ($10,000,000).
"Swing Line Exposure" shall mean, at any time, the aggregate principal
amount of all Swing Loans outstanding.
"Swing Line Lender" shall mean KeyBank National Association, as holder
of the Swing Line Commitment.
17
"Swing Line Note" shall mean the Swing Line Note executed and delivered
pursuant to Section 2.6(b) hereof.
"Swing Loan" shall mean a loan that shall be denominated in Dollars
granted to Borrower by the Swing Line Lender under the Swing Line.
"Swing Loan Maturity Date" shall mean, with respect to any Swing Loan,
the earlier of (a) so long as the principal amount outstanding on all Swing
Loans is greater than Two Million Dollars ($2,000,000), fifteen (15) days after
the date such Swing Loan is made, or (b) the last day of the Commitment Period.
"Taxes" shall mean any present or future taxes, levies, imposts,
duties, charges, fees, deductions or withholdings now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority (together
with any interest, penalties or similar liabilities with respect thereto) other
than Excluded Taxes.
"Total Commitment Amount" shall mean the Closing Commitment Amount, as
such amount may be increased up to the Maximum Commitment Amount pursuant to
Section 2.11(b) hereof, or decreased pursuant to Section 2.11(a) hereof.
"Voting Power" shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person. The holding of a designated percentage of Voting Power of a Person means
the ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively
the election of that percentage of the members of the board of directors or
similar governing body of such Person.
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within
the meaning of ERISA Section 3(l).
Section 1.2. Accounting Terms. Any accounting term not specifically
defined in this Article I shall have the meaning ascribed thereto by GAAP.
Section 1.3. Terms Generally. The foregoing definitions shall be
applicable to the singular and plurals of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1. Amount and Nature of Credit.
(a) Subject to the terms and conditions of this Agreement, the
=Lenders, during the Commitment Period and to the extent hereinafter provided,
shall make Loans to Borrower, participate in Swing Loans made by the Swing Line
Lender to Borrower, and issue or participate in Letters of Credit at the request
of Borrower, in such aggregate amount as Borrower shall
18
request pursuant to the Commitment; provided, however, that in no event shall
the Revolving Credit Exposure be in excess of the Total Commitment Amount.
(b) Each Lender, for itself and not one for any other, agrees to
make Loans, participate in Swing Loans, and issue or participate in Letters of
Credit, during the Commitment Period, on such basis that, immediately after the
completion of any borrowing by Borrower or the issuance of a Letter of Credit:
(i) the Dollar Equivalent of the aggregate principal
amount then outstanding on the Note (other than the Swing Line Note)
issued to such Lender, when combined with such Lender's pro rata share,
if any, of the Letter of Credit Exposure and the Swing Line Exposure,
shall not be in excess of the Maximum Amount for such Lender; and
(ii) such aggregate principal amount outstanding on the
Note (other than the Swing Line Note) issued to such Lender shall
represent that percentage of the aggregate principal amount then
outstanding on all Notes (other than the Swing Line Note) together with
such Lender's interest in the Letter of Credit Exposure and the Swing
Line Exposure that shall be such Lender's Commitment Percentage. Each
borrowing (other than Swing Loans) from the Lenders hereunder shall be
made pro rata according to the respective Commitment Percentages of the
Lenders.
(c) The Loans may be made as Revolving Loans as described in
Section 2.2 hereof and Swing Loans as described in Section 2.4. hereof, and
Letters of Credit may be issued in accordance with Section 2.3 hereof.
Section 2.2. Revolving Loans. Subject to the terms and conditions of
this Agreement, during the Commitment Period, the Lenders shall make a Revolving
Loan or Revolving Loans to Borrower in such amount or amounts as Borrower may
from time to time request, but not exceeding in aggregate principal amount at
any time outstanding hereunder the Total Commitment Amount, when such Revolving
Loans are combined with the Letter of Credit Exposure and the Swing Line
Exposure; provided, however, that Borrower shall not request any Alternate
Currency Loan (and the Lenders shall not be obligated to make an Alternate
Currency Loan) if, after giving effect thereto, the Alternate Currency Exposure
would exceed the Alternate Currency Maximum Amount. Borrower shall have the
option, subject to the terms and conditions set forth herein, to borrow
Revolving Loans, maturing on the last day of the Commitment Period, by means of
any combination of Base Rate Loans, Eurodollar Loans or Alternate Currency
Loans. With respect to each Alternate Currency Loan, subject to the other
provisions of this Agreement, Borrower shall receive all of the proceeds of such
Alternate Currency Loan in one Alternate Currency and repay such Alternate
Currency Loan in the same Alternate Currency. Subject to the provisions of this
Agreement, Borrower shall be entitled under this Section 2.2 to borrow funds,
repay the same in whole or in part and re-borrow hereunder at any time and from
time to time during the Commitment Period.
Section 2.3. Letters of Credit.
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(a) Generally. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Fronting Lender shall, in its own
name, on behalf of the Lenders, issue such Letters of Credit for the account of
a Credit Party, as Borrower may from time to time request. Borrower shall not
request any Letter of Credit (and the Fronting Lender shall not be obligated to
issue any Letter of Credit) if, after giving effect thereto, (i) the Letter of
Credit Exposure would exceed the Letter of Credit Commitment, (ii) the Revolving
Credit Exposure would exceed the Total Commitment Amount, or (iii) with respect
to a request for a Letter of Credit to be issued in an Alternate Currency, the
Alternate Currency Exposure would exceed the Alternate Currency Maximum Amount.
The issuance of each Letter of Credit shall confer upon each Lender the benefits
and liabilities of a participation consisting of an undivided pro rata interest
in the Letter of Credit to the extent of such Lender's Commitment Percentage.
(b) Request for Letter of Credit. Each request for a Letter of
Credit shall be delivered to Agent (and to the Fronting Lender, if the Fronting
Lender is a Lender other than Agent) by an Authorized Officer not later than
11:00 A.M. (Eastern time) three Business Days prior to the day upon which the
Letter of Credit is to be issued. Each such request shall be in a form
acceptable to Agent (and the Fronting Lender, if the Fronting Lender is a Lender
other than Agent) and shall specify the face amount thereof, the account party,
the beneficiary, the intended date of issuance, the expiry date thereof, the
Alternate Currency if other than Dollars are requested, and the nature of the
transaction to be supported thereby. Concurrently with each such request,
Borrower, and any Guarantor of Payment for whose account the Letter of Credit is
to be issued, shall execute and deliver to the Fronting Lender an appropriate
application and agreement, being in the standard form of the Fronting Lender for
such letters of credit, as amended to conform to the provisions of this
Agreement if required by Agent. Agent shall give the Fronting Lender and each
Lender notice of each such request for a Letter of Credit.
(c) Letters of Credit Fees. With respect to each Letter of Credit
and the drafts thereunder, if any, whether issued for the account of Borrower or
any other Credit Party, Borrower agrees to (i) pay to Agent, for the pro rata
benefit of the Lenders, a non-refundable commission based upon the face amount
of such Letter of Credit, which shall be paid quarterly in arrears, on each
Regularly Scheduled Payment Date, at the rate per annum of the Applicable Margin
for LIBOR Fixed Rate Loans (in effect on the date such payment is to be made)
multiplied by the face amount of such Letter of Credit; (ii) pay to Agent, for
the sole benefit of the Fronting Lender, an additional Letter of Credit fee,
which shall be paid on each date that such Letter of Credit shall be issued,
amended or renewed at the rate of one-eighth percent (1/8%) of the face amount
of such Letter of Credit; and (iii) pay to Agent, for the sole benefit of the
Fronting Lender, such other issuance, amendment, negotiation, draw, acceptance,
telex, courier, postage and similar transactional fees as are generally charged
by the Fronting Lender under its fee schedule as in effect from time to time.
(d) Refunding of Letters of Credit with Revolving Loans. Whenever
a Letter of Credit shall be drawn, Borrower shall immediately reimburse the
Fronting Lender for the amount drawn. In the event that the amount drawn shall
not have been reimbursed by Borrower on the date of the drawing of such Letter
of Credit, at the sole option of Agent (and the Fronting Lender, if the Fronting
Lender is a Lender other than Agent), Borrower shall be deemed to have requested
a Revolving Loan, subject to the provisions of Sections 2.2 and 2.7 hereof
(other than
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the requirement set forth in Section 2.7(d) hereof), in the amount drawn. Such
Revolving Loan shall be evidenced by the Revolving Credit Notes. Each Lender
agrees to make a Revolving Loan on the date of such notice, subject to no
conditions precedent whatsoever. Each Lender acknowledges and agrees that its
obligation to make a Revolving Loan pursuant to Section 2.2 hereof when required
by this Section 2.3 shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or Event of Default, and that its
payment to Agent, for the account of the Fronting Lender, of the proceeds of
such Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such
Lender's Revolving Credit Commitment shall have been reduced or terminated.
Borrower irrevocably authorizes and instructs Agent to apply the proceeds of any
borrowing pursuant to this subsection to reimburse, in full, the Fronting Lender
for the amount drawn on such Letter of Credit. Each such Revolving Loan shall be
deemed to be a Base Rate Loan unless otherwise requested by and available to
Borrower hereunder. Each Lender is hereby authorized to record on its records
relating to its Revolving Credit Note such Lender's pro rata share of the
amounts paid and not reimbursed on the Letters of Credit.
(e) Participation in Letters of Credit. If, for any reason, Agent
(or the Fronting Lender if the Fronting Lender shall be a Lender other than
Agent) shall be unable to or, in the opinion of Agent, it shall be impracticable
to, convert any Letter of Credit to a Revolving Loan pursuant to the preceding
subsection, Agent (or the Fronting Lender if the Fronting Lender is a Lender
other than Agent) shall have the right to request that each Lender purchase a
participation in the amount due with respect to such Letter of Credit, and Agent
shall promptly notify each Lender thereof (by facsimile or telephone, confirmed
in writing). Upon such notice, but without further action, the Fronting Lender
hereby agrees to grant to each Lender, and each Lender hereby agrees to acquire
from the Fronting Lender, an undivided participation interest in the amount due
with respect to such Letter of Credit in an amount equal to such Lender's
Commitment Percentage of the principal amount due with respect to such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to Agent, for the account of the Fronting Lender, such Lender's ratable
share of the amount due with respect to such Letter of Credit (determined in
accordance with such Lender's Commitment Percentage). Each Lender acknowledges
and agrees that its obligation to acquire participations in the amount due under
any Letter of Credit that is drawn but not reimbursed by Borrower pursuant to
this subsection (e) shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or Event of Default, and that each such
payment shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not such Lender's Revolving
Credit Commitment shall have been reduced or terminated. Each Lender shall
comply with its obligation under this subsection (e) by wire transfer of
immediately available funds, in the same manner as provided in Section 2.7
hereof with respect to Revolving Loans. Each Lender is hereby authorized to
record on its records such Lender's pro rata share of the amounts paid and not
reimbursed on the Letters of Credit.
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Section 2.4. Swing Loans.
(a) Generally. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Swing Line Lender shall make a
Swing Loan or Swing Loans to Borrower in such amount or amounts as Borrower,
through an Authorized Officer, may from time to time request; provided that
Borrower shall not request any Swing Loan if, after giving effect thereto, (i)
the Revolving Credit Exposure would exceed the Total Commitment Amount, or (ii)
the Swing Line Exposure would exceed the Swing Line Commitment. Each Swing Loan
shall be due and payable on the Swing Loan Maturity Date applicable thereto.
Each Swing Loan shall be made in Dollars.
(b) Refunding of Swing Loans. If the Swing Line Lender so elects,
by giving notice to Borrower and the Lenders, Borrower agrees that the Swing
Line Lender shall have the right, in its sole discretion, to require that any
Swing Loan be refinanced as a Revolving Loan. Such Revolving Loan shall be a
Base Rate Loan unless otherwise requested by and available to Borrower
hereunder. Upon receipt of such notice by Borrower and the Lenders, Borrower
shall be deemed, on such day, to have requested a Revolving Loan in the
principal amount of the Swing Loan in accordance with Section 2.2 and Section
2.7 hereof (other than the requirement set forth in Section 2.7(d) hereof). Such
Revolving Loan shall be evidenced by the Revolving Credit Notes. Each Lender
agrees to make a Revolving Loan on the date of such notice, subject to no
conditions precedent whatsoever. Each Lender acknowledges and agrees that such
Lender's obligation to make a Revolving Loan pursuant to Section 2.2 hereof when
required by this subsection (b) is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or Event of Default, and that its
payment to Agent, for the account of the Swing Line Lender, of the proceeds of
such Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such
Lender's Revolving Credit Commitment shall have been reduced or terminated.
Borrower irrevocably authorizes and instructs Agent to apply the proceeds of any
borrowing pursuant to this subsection (b) to repay in full such Swing Loan.
(c) Participation in Swing Loans. If, for any reason, Agent is
unable to or, in the opinion of Agent, it is impracticable to, convert any Swing
Loan to a Revolving Loan pursuant to the preceding subsection (b), then on any
day that a Swing Loan is outstanding (whether before or after the maturity
thereof), Agent shall have the right to request that each Lender purchase a
participation in such Swing Loan, and Agent shall promptly notify each Lender
thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but
without further action, the Swing Line Lender hereby agrees to grant to each
Lender, and each Lender hereby agrees to acquire from the Swing Line Lender, an
undivided participation interest in such Swing Loan in an amount equal to such
Lender's Commitment Percentage of the principal amount of such Swing Loan. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to
Agent, for the benefit of the Swing Line Lender, such Lender's ratable share of
such Swing Loan (determined in accordance with such Lender's Commitment
Percentage). Each Lender acknowledges and agrees that its obligation to acquire
participations in Swing Loans pursuant to this subsection (c) is absolute and
unconditional and shall not be affected by any circumstance
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whatsoever, including, without limitation, the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, recoupment, counterclaim, withholding or reduction
whatsoever and whether or not such Lender's Revolving Credit Commitment shall
have been reduced or terminated. Each Lender shall comply with its obligation
under this subsection (c) by wire transfer of immediately available funds, in
the same manner as provided in Section 2.7 hereof with respect to Revolving
Loans to be made by such Lender.
Section 2.5. Interest.
(a) Revolving Loans.
(i) Base Rate Loan. Borrower shall pay interest on the
unpaid principal amount of a Base Rate Loan outstanding from time to
time from the date thereof until paid at the Derived Base Rate from
time to time in effect. Interest on such Base Rate Loan shall be
payable, commencing March 31, 2004, and on each Regularly Scheduled
Payment Date thereafter and at the maturity thereof.
(ii) LIBOR Fixed Rate Loans. Borrower shall pay interest
on the unpaid principal amount of each LIBOR Fixed Rate Loan
outstanding from time to time, fixed in advance on the first day of the
Interest Period applicable thereto through the last day of the Interest
Period applicable thereto (but subject to changes in the Applicable
Margin), at the Derived LIBOR Fixed Rate. Interest on such LIBOR Fixed
Rate Loan shall be payable on each Interest Adjustment Date with
respect to an Interest Period (provided that if an Interest Period
shall exceed three months, the interest must be paid every three
months, commencing three months from the beginning of such Interest
Period).
(b) Swing Loans. Borrower shall pay interest to Agent, for the
sole benefit of the Swing Line Lender (and any Lender that shall have purchased
a participation in such Swing Loan), on the unpaid principal amount of each
Swing Loan outstanding from time to time from the date thereof until paid at the
Derived Base Rate applicable to such Swing Loan. Interest on each Swing Loan
shall be payable on the Swing Loan Maturity Date applicable thereto. Each Swing
Loan shall bear interest for a minimum of one day.
(c) Default Rate. Anything herein to the contrary notwithstanding,
if an Event of Default shall occur, upon the election of the Required Lenders
(i) the principal of each Loan and the unpaid interest thereon shall bear
interest, until paid, at the Default Rate, (ii) the fee for the aggregate
undrawn face amount of all issued and outstanding Letters of Credit shall be
increased by two percent (2%) in excess of the rate otherwise applicable
thereto, and (iii) in the case of any other amount due from Borrower hereunder
or under any other Loan Document, such amount shall bear interest at the Default
Rate; provided that, during an Event of Default under Section 7.11 hereof, the
applicable Default Rate shall apply without any election or action on the part
of Agent or any Lender.
(d) Limitation on Interest. In no event shall the rate of interest
hereunder exceed the maximum rate allowable by law.
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Section 2.6. Evidence of Indebtedness.
(a) Revolving Loans. The obligation of Borrower to repay the Base
Rate Loans and LIBOR Fixed Rate Loans made by each Lender and to pay interest
thereon shall be evidenced by a Revolving Credit Note of Borrower in the form of
the attached Exhibit A, payable to the order of such Lender in the principal
amount of its Revolving Credit Commitment, or, if less, the aggregate unpaid
principal amount of Revolving Loans made by such Lender.
(b) Swing Loan. The obligation of Borrower to repay the Swing
Loans and to pay interest thereon shall be evidenced by a Swing Line Note of
Borrower in the form of the attached Exhibit B, and payable to the order of the
Swing Line Lender in the principal amount of the Swing Line Commitment, or, if
less, the aggregate unpaid principal amount of Swing Loans made by the Swing
Line Lender.
Section 2.7. Notice of Credit Event; Funding of Loans.
(a) Notice of Credit Event. Borrower, through an Authorized
Officer, shall provide to Agent a Notice of Loan prior to (i) 11:00 A.M.
(Eastern time) on the proposed date of borrowing or conversion of any Base Rate
Loan, (ii) 11:00 A.M. (Eastern time) three Business Days prior to the proposed
date of borrowing, conversion or continuation of any LIBOR Fixed Rate Loan, and
(iii) 2:00 P.M. (Eastern time) on the proposed date of borrowing of any Swing
Loan. Borrower shall comply with the notice provisions set forth in Section 2.3
hereof with respect to Letters of Credit.
(b) Funding of Loans. Agent shall notify each Lender of the date,
amount, type of currency and Interest Period (if applicable) promptly upon the
receipt of a Notice of Loan, and, in any event, by 2:00 P.M. (Eastern time) on
the date such notice is received. On the date that the Credit Event set forth in
such notice is to occur, each such Lender shall provide to Agent, not later than
3:00 P.M. (Eastern time), the amount in Dollars, or, with respect to an
Alternate Currency, in the applicable Alternate Currency, in federal or other
immediately available funds, required of it. If Agent shall elect to advance the
proceeds of such Loan prior to receiving funds from such Lender, Agent shall
have the right, upon prior notice to Borrower, to debit any account of Borrower
or otherwise receive such amount from Borrower, on demand, in the event that
such Lender shall fail to reimburse Agent in accordance with this subsection.
Agent shall also have the right to receive interest from such Lender at the
Federal Funds Effective Rate in the event that such Lender shall fail to provide
its portion of the Loan on the date requested and Agent shall elect to provide
such funds.
(c) Conversion of Loans. At the request of Borrower to Agent,
subject to the notice and other provisions of this Section 2.7, the Lenders
shall convert a Base Rate Loan to one or more Eurodollar Loans at any time and
shall convert a Eurodollar Loan to a Base Rate Loan on any Interest Adjustment
Date applicable thereto. Swing Loans may be converted by the Swing Line Lender
to Revolving Loans in accordance with Section 2.4(b) hereof. No Alternate
Currency Loan may be converted to a Base Rate Loan or Eurodollar Loan and no
Base Rate Loan or Eurodollar Loan may be converted to an Alternate Currency
Loan.
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(d) Minimum Amount. Each request for:
(i) a Base Rate Loan shall be in an amount of not less
than Two Million Dollars ($2,000,000), increased by increments of Five
Hundred Thousand Dollars ($500,000);
(ii) a LIBOR Fixed Rate Loan shall be in an amount (or,
with respect to an Alternate Currency Loan, the Dollar Equivalent) of
not less than Two Million Dollars ($2,000,000), increased by increments
of Five Hundred Thousand Dollars ($500,000) (or, with respect to an
Alternate Currency Loan, the Dollar Equivalent); and
(iii) a Swing Loan shall be in an amount not less than One
Hundred Thousand Dollars ($100,000).
(e) Interest Periods. At no time shall Borrower request that LIBOR
Fixed Rate Loans be outstanding for more than ten different Interest Periods,
and, if a Base Rate Loan is outstanding, then LIBOR Fixed Rate Loans shall be
limited to nine different Interest Periods at any time.
Section 2.8. Payment on Loans and Other Obligations.
(a) Payments Generally. Each payment made hereunder by a Credit
Party shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever.
(b) Payments in Alternate Currency. With respect to any Alternate
Currency Loan or any Alternate Currency Letter of Credit, all payments
(including prepayments) to any Lender of the principal of or interest on such
Alternate Currency Loan or Alternate Currency Letter of Credit shall be made in
the same Alternate Currency as the original Loan or Letter of Credit. All such
payments shall be remitted by Borrower to Agent, at the address of Agent for
notices referred to in Section 10.4 hereof, (or at such other office or account
as designated in writing by Agent to Borrower) for the account of the Lenders
(or the Fronting Lender or the Swing Line Lender, as appropriate) not later than
11:00 A.M. (Eastern time) on the due date thereof in same day funds. Any
payments received by Agent after 11:00 A.M. (Eastern time) shall be deemed to
have been made and received on the next Business Day.
(c) Payments in Dollars. With respect to (i) any Loan (other than
an Alternate Currency Loan), or (ii) any other payment to Agent and the Lenders
that shall not be covered by subsection (b) above, all such payments (including
prepayments) to Agent of the principal of or interest on such Loan or other
payment, including but not limited to principal, interest, fees or any other
amount owed by Borrower under this Agreement, shall be made in Dollars. All
payments described in this subsection (c) shall be remitted to Agent, at the
address of Agent for notices referred to in Section 10.4 hereof, for the account
of the Lenders (or the Fronting Lender or the Swing Line Lender, as appropriate)
not later than 11:00 A.M. (Eastern time) on the due
25
date thereof in immediately available funds. Any such payments received by Agent
after 11:00 A.M. (Eastern time) shall be deemed to have been made and received
on the next Business Day.
(d) Payments to Lenders. Upon Agent's receipt of payments
hereunder, Agent shall immediately distribute to each Lender its ratable share,
if any, of the amount of principal, interest, and commitment and other fees
received by Agent for the account of such Lender. Payments received by Agent in
Dollars shall be delivered to the Lenders in Dollars in immediately available
funds. Payments received by Agent in any Alternate Currency shall be delivered
to the Lenders in such Alternate Currency in same day funds. Each Lender shall
record any principal, interest or other payment, the principal amounts of Base
Rate Loans, LIBOR Fixed Rate Loans and Swing Loans, the type of currency for
each Loan, all prepayments and the applicable dates, including Interest Periods,
with respect to the Loans made, and payments received by such Lender, by such
method as such Lender may generally employ; provided, however, that failure to
make any such entry shall in no way detract from the obligations of Borrower
under the Notes. The aggregate unpaid amount of Loans, types of Loans, Interest
Periods and similar information with respect to the Loans and Letters of Credit
set forth on the records of Agent shall be rebuttably presumptive evidence with
respect to such information, including the amounts of principal and interest
owing and unpaid on each Note.
(e) Timing of Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment to be made on any Loan, shall be
stated to be due on a day that is not a Business Day, such payment shall be made
on the next Business Day and such extension of time shall in each case be
included in the computation of the interest payable on such Loan; provided,
however, that, with respect to any LIBOR Fixed Rate Loan, if the next Business
Day shall fall in the succeeding calendar month, such payment shall be made on
the preceding Business Day and the relevant Interest Period shall be adjusted
accordingly.
Section 2.9. Prepayment.
(a) Right to Prepay. Borrower shall have the right at any time or
from time to time to prepay, on a pro rata basis for all of the Lenders, all or
any part of the principal amount of the Revolving Credit Notes then outstanding
to such Lenders, as designated by Borrower. Such payment shall include interest
accrued on the amount so prepaid to the date of such prepayment and any amount
payable under Article III hereof with respect to the amount being prepaid.
Borrower shall have the right, at any time or from time to time, to prepay, for
the benefit of the Swing Line Lender (and any Lender that has purchased a
participation in such Swing Loan), all or any part of the principal amount of
the Swing Loans then outstanding, as designated by Borrower, plus interest
accrued on the amount so prepaid to the date of such prepayment.
(b) Notice of Prepayment. Borrower shall give Agent notice of
prepayment of a Base Rate Loan or Swing Loan not later than 11:00 A.M. (Eastern
time) on the Business Day such prepayment is to be made and written notice of
the prepayment of any LIBOR Fixed Rate Loan not later than 1:00 P.M. (Eastern
time) three Business Days before the Business Day on which such prepayment is to
be made. Prepayments of Base Rate Loans shall be without any premium or penalty,
other than any prepayment fees, penalties or other charges that may be contained
in any Hedge Agreement.
26
(c) Minimum Amount. Each prepayment of a LIBOR Fixed Rate Loan
shall be in the principal amount of not less than One Million Dollars
($1,000,000), (or, with respect to an Alternate Currency Loan, the Dollar
Equivalent of such amount) or, with respect to a Swing Loan, the principal
balance of such Swing Loan, except in the case of a mandatory payment pursuant
to Section 2.13 or Article III hereof.
Section 2.10. Commitment and Other Fees.
(a) Commitment Fees.
(i) If the average daily Revolving Credit Exposure
(exclusive of the Swing Line Exposure) during any fiscal quarter of
Borrower is less than fifty percent (50%) of the average daily Total
Commitment Amount in effect during such quarter, Borrower shall pay to
Agent, for the ratable account of the Lenders, as a consideration for
the Commitment, a commitment fee at the rate per annum of (A) fifty
(50) basis points times (B) (1) the average daily Total Commitment
Amount in effect during such quarter, minus (2) the average daily
Revolving Credit Exposure (exclusive of the Swing Line Exposure) during
such quarter; and
(ii) If the average daily Revolving Credit Exposure
(exclusive of the Swing Line Exposure) during any fiscal quarter of
Borrower is equal to or exceeds fifty percent (50%) of the average
daily Total Commitment Amount in effect during such quarter, Borrower
shall pay to Agent, for the ratable account of the Lenders, as a
consideration for the Commitment, a commitment fee at the rate per
annum of (i) the Applicable Alternate Commitment Fee Rate in effect
during such quarter, times (ii)(A) the average daily Total Commitment
Amount in effect during such quarter, minus (B) average daily Revolving
Credit Exposure (exclusive of the Swing Line Exposure) during such
quarter.
The commitment fee shall be payable in arrears, on March 31, 2004, and
on each Regularly Scheduled Payment Date thereafter, and on the last day of the
Commitment Period.
(b) Agent Fee. Borrower shall pay to Agent, for its sole benefit,
the fees set forth in the Agent Fee Letter.
Section 2.11. Modification of Commitment.
(a) Optional Reduction of Commitment. Borrower may at any time and
from time to time permanently reduce in whole or ratably in part the Total
Commitment Amount (and in turn the Commitment) to an amount not less than the
then existing Revolving Credit Exposure, by giving Agent not fewer than three
Business Days' written notice of such reduction, provided that any such partial
reduction shall be in an amount of not less than Five Million Dollars
($5,000,000), increased by increments of Five Hundred Thousand Dollars
($500,000); provided that, if the Total Commitment Amount shall be permanently
reduced in its entirety, Borrower shall pay to Agent, for the benefit of the
Lenders, a commitment termination fee equal to the commitment fee set forth in
Section 2.10(a) hereof calculated for the next thirty (30) days based
27
upon the Total Commitment Amount. Agent shall promptly notify each Lender of the
date of each such reduction and such Lender's proportionate share thereof. After
each such reduction, the commitment fees payable hereunder shall be calculated
upon the Total Commitment Amount as so reduced. If Borrower reduces in whole the
Total Commitment Amount, on the effective date of such reduction (Borrower
having prepaid in full the unpaid principal balance, if any, of the Notes,
together with all interest and commitment and other fees accrued and unpaid, and
provided that no Letter of Credit Exposure or Swing Line Exposure shall exist),
all of the Notes shall be delivered to Agent marked "Canceled" and Agent shall
redeliver such Notes to Borrower. Any partial reduction in the Total Commitment
Amount shall be effective during the remainder of the Commitment Period.
(b) Increase in Commitment. At any time during the Commitment
Increase Period, Borrower may request that Agent increase the Total Commitment
Amount from the Closing Commitment Amount up to the Maximum Commitment Amount.
Each such increase shall be in increments of at least Five Million Dollars
($5,000,000) and may be made by either (i) proportionally increasing, for one or
more Lenders, with their prior written consent, their respective Maximum
Amounts, or (ii) including one or more Additional Lenders, each with a new
Maximum Amount of the Revolving Credit Commitment, as a party to this Agreement
(collectively, the "Additional Commitment"). During the Commitment Increase
Period, the Lenders agree that Agent, in its sole discretion, may permit one or
more Additional Commitments upon satisfaction of the following requirements: (A)
each Additional Lender, if any, shall execute an Additional Lender Assumption
Agreement, (B) Agent shall provide to each Lender a revised Schedule 1 to this
Agreement, including revised Commitment Percentages for each of the Lenders, if
appropriate, at least three Business Days prior to the effectiveness of such
Additional Commitments (each an "Assumption Effective Date"), and (C) Borrower
shall execute and deliver to Agent and the Lenders such replacement or
additional Revolving Credit Notes as shall be required by Agent. The Lenders
hereby authorize Agent to execute each Additional Lender Assumption Agreement on
behalf of the Lenders. On each Assumption Effective Date, the Lenders shall make
adjustments among themselves with respect to the Revolving Loans then
outstanding and amounts of principal, interest, commitment fees and other
amounts paid or payable with respect thereto as shall be necessary, in the
opinion of Agent, in order to reallocate among such Lenders such outstanding
amounts, based on the revised Commitment Percentages and to otherwise carry out
fully the intent and terms of this subsection (b). Borrower shall not request
any increase in the Total Commitment Amount pursuant to this subsection (b) if a
Default or an Event of Default shall then exist, or immediately after giving
effect to any such increase would exist.
Section 2.12. Computation of Interest and Fees. With the exception of
Base Rate Loans, interest on Loans and commitment and other fees and charges
hereunder shall be computed on the basis of a year having three hundred sixty
(360) days and calculated for the actual number of days elapsed. With respect to
Base Rate Loans, interest shall be computed on the basis of a year having three
hundred sixty-five (365) days or three hundred sixty-six (366) days, as the case
may be, and calculated for the actual number of days elapsed.
Section 2.13. Mandatory Payment.
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(a) If, at any time, the Revolving Credit Exposure shall exceed
the Total Commitment Amount as then in effect, Borrower shall, as promptly as
practicable, but in no event later than the next Business Day, prepay an
aggregate principal amount of the Revolving Loans sufficient to bring the
Revolving Credit Exposure within the Total Commitment Amount.
(b) If, at any time, the Swing Line Exposure shall exceed the
Swing Line Commitment, Borrower shall, as promptly as practicable, but in no
event later than the next Business Day, prepay an aggregate principal amount of
the Swing Loans sufficient to bring the Swing Line Exposure within the Swing
Line Commitment.
(c) Unless otherwise designated by Borrower, each prepayment
pursuant to Section 2.13(a) hereof shall be applied in the following order (i)
first, on a pro rata basis among all of the outstanding Base Rate Loans, and
(ii) second, on a pro rata basis among all of the outstanding LIBOR Fixed Rate
Loans, provided that if the outstanding principal amount of any LIBOR Fixed Rate
Loan shall be reduced to an amount less than the minimum amount set forth in
Section 2.7 hereof as a result of such prepayment, then such LIBOR Fixed Rate
Loan shall be converted into a Base Rate Loan on the date of such prepayment.
Any prepayment of a LIBOR Fixed Rate Loan or Swing Loan pursuant to this Section
2.13 shall be subject to the prepayment provisions set forth in Article III
hereof.
Section 2.14. Extension of Commitment. Contemporaneously with the
delivery of the financial statements required pursuant to Section 5.3(b) hereof
(beginning with the financial statements for the fiscal year of Borrower ending
December 31, 2004), Borrower may deliver a Request for Extension, requesting
that the Lenders extend the maturity of the Revolving Credit Commitment for an
additional year. Each such extension shall require the unanimous written consent
of all of the Lenders and shall be upon such terms and conditions as may be
agreed to by Agent, Borrower and the Lenders. Borrower shall pay any attorneys'
fees or other expenses of Agent in connection with the documentation of any such
extension, as well as such other fees as may be agreed upon between Borrower and
Agent.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO
LIBOR FIXED RATE LOANS; INCREASED CAPITAL; TAXES.
Section 3.1. Requirements of Law.
(a) If, after the Closing Date (i) the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
(ii) the compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority:
(A) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit or any
LIBOR Fixed Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Taxes and
Excluded Taxes which are governed by Section 3.2 hereof);
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(B) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate or the
Alternate Currency Rate; or
(C) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining LIBOR Fixed Rate Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, Borrower shall
pay to such Lender, promptly after receipt of a written request therefor, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection (a), such Lender shall promptly
notify Borrower (with a copy to Agent) of the event by reason of which it has
become so entitled.
(b) If any Lender shall have determined that, after the Closing
Date, the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its obligations
hereunder, or under or in respect of any Letter of Credit, to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration the policies of such Lender or
corporation with respect to capital adequacy), then from time to time, upon
submission by such Lender to Borrower (with a copy to Agent) of a written
request therefor (which shall include the method for calculating such amount),
Borrower shall promptly pay or cause to be paid to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section 3.1 submitted by any Lender to Borrower (with a copy to Agent)
shall be conclusive absent manifest error. In determining any such additional
amounts, such Lender may use any method of averaging and attribution that it (in
its sole discretion) shall deem applicable. The obligations of Borrower pursuant
to this Section 3.1 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
Section 3.2. Taxes.
(a) All payments made by any Credit Party under any Loan Document
shall be made free and clear of, and without deduction or withholding for or on
account of any Taxes or Other Taxes. If any Taxes or Other Taxes are required to
be withheld from any amounts payable to Agent or any Lender thereunder, the
amounts so payable to Agent or such Lender shall be increased to the extent
necessary to yield to Agent or such Lender (after payment of all Taxes
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and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in the Loan Documents.
(b) In addition, the Credit Parties shall pay Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Taxes or Other Taxes are required to be withheld
and paid by a Credit Party, such Credit Party shall timely withhold and pay such
taxes to the relevant Governmental Authorities. As promptly as possible
thereafter, Borrower shall send to Agent for its own account or for the account
of the relevant Lender, as the case may be, a certified copy of an original
official receipt received by such Credit Party showing payment thereof. If such
Credit Party shall fail to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required receipts or
other required documentary evidence, Borrower shall indemnify Agent and the
appropriate Lenders on demand for any incremental taxes, interest or penalties
that may become payable by Agent or such Lender as a result of any such failure.
(d) If any Lender shall be so indemnified by a Credit Party, such
Lender shall use reasonable efforts to obtain the benefits of any refund,
deduction or credit for any taxes or other amounts with respect to the amount
paid by such Credit Party and shall reimburse such Credit Party to the extent,
but only to the extent, that such Lender shall receive a refund with respect to
the amount paid by such Credit Party or an effective net reduction in taxes or
other governmental charges (including any taxes imposed on or measured by the
total net income of such Lender) of the United States or any state or
subdivision or any other Governmental Authority thereof by virtue of any such
deduction or credit, after first giving effect to all other deductions and
credits otherwise available to such Lender. If, at the time any audit of such
Lender's income tax return is completed, such Lender determines, based on such
audit, that it shall not have been entitled to the full amount of any refund
reimbursed to such Credit Party as aforesaid or that its net income taxes shall
not have been reduced by a credit or deduction for the full amount reimbursed to
such Credit Party as aforesaid, such Credit Party, upon request of such Lender,
shall promptly pay to such Lender the amount so refunded to which such Lender
shall not have been so entitled, or the amount by which the net income taxes of
such Lender shall not have been so reduced, as the case may be.
(e) Each Lender that is not (i) a citizen or resident of the
United States of America, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States of America (or
any jurisdiction thereof), or (iii) an estate or trust that is subject to U.S.
federal income taxation regardless of the source of its income (any such Person,
a "Non-U.S. Lender") shall deliver to Borrower and Agent two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement with respect to such interest and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by Credit Parties under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date
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it becomes a party to this Agreement or such other Loan Document. In addition,
each Non-U.S. Lender shall deliver such forms or appropriate replacements
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify Borrower at any
time it determines that such Lender is no longer in a position to provide any
previously delivered certificate to Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this subsection (e), a Non-U.S. Lender shall not be required
to deliver any form pursuant to this subsection (e) that such Non-U.S. Lender is
not legally able to deliver.
(f) The agreements in this Section 3.2 shall survive the
termination of the Loan Documents and the payment of the Loans and all other
amounts payable hereunder.
Section 3.3. Funding Losses. Borrower agrees to indemnify each Lender,
promptly after receipt of a written request therefor, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by Borrower in making a borrowing of, conversion into
or continuation of LIBOR Fixed Rate Loans after Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by Borrower in making any prepayment of or conversion from LIBOR Fixed
Rate Loans after Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment of a LIBOR Fixed
Rate Loan on a day that is not the last day of an Interest Period applicable
thereto, (d) the making of a prepayment of a Swing Loan on a day that is not the
Swing Loan Maturity Date applicable thereto, or (e) any conversion of a LIBOR
Fixed Rate Loan to a Base Rate Loan pursuant to Section 3.4 hereof on a day that
is not the last day of an Interest Period applicable thereto. Such
indemnification shall be in an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amounts so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) or the applicable Swing Loan Maturity Date in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the appropriate London interbank market, along with
any reasonable administration fee charged by such Lender. A certificate as to
any amounts payable pursuant to this Section 3.3 submitted to Borrower (with a
copy to Agent) by any Lender shall be conclusive absent manifest error. The
obligations of Borrower pursuant to this Section 3.3 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending
Unlawful; Inability to Determine Rate.
(a) If any Lender shall determine (which determination shall, upon
notice thereof to Borrower and Agent, be conclusive and binding on Borrower)
that, after the Closing Date, (i) the introduction of or any change in or in the
interpretation of any law makes it unlawful, or (ii) any Governmental Authority
asserts that it is unlawful, for such Lender to make or continue any
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Loan as, or to convert (if permitted pursuant to this Agreement) any Loan into,
a LIBOR Fixed Rate Loan, the obligations of such Lender to make, continue or
convert any such LIBOR Fixed Rate Loan shall, upon such determination, be
suspended until such Lender shall notify Agent that the circumstances causing
such suspension no longer exist, and all outstanding LIBOR Fixed Rate Loans
payable to such Lender shall automatically convert (if conversion is permitted
under this Agreement) into a Base Rate Loan, or be repaid (if no conversion is
permitted) at the end of the then current Interest Periods with respect thereto
or sooner, if required by law or such assertion.
(b) If Agent or the Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Rate
or Alternate Currency Rate for any requested Interest Period with respect to a
proposed LIBOR Fixed Rate Loan, or that the Eurodollar Rate or Alternate
Currency Rate for any requested Interest Period with respect to a proposed LIBOR
Fixed Rate Loan does not adequately and fairly reflect the cost to the Lenders
of funding such Loan, Agent will promptly so notify Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain such LIBOR Fixed
Rate Loan shall be suspended until Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke
any pending request for a borrowing of, conversion to or continuation of such
LIBOR Fixed Rate Loan or, failing that, will be deemed to have converted such
request into a request for a borrowing of a Base Rate Loan in the amount
specified therein.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.1. Conditions to Each Credit Event. The obligation of the
Lenders, the Fronting Lender and the Swing Line Lender to participate in any
Credit Event shall be conditioned, in the case of each Credit Event, upon the
following:
(a) all conditions precedent as listed in Section 4.2 hereof
required to be satisfied prior to the first Credit Event shall have been
satisfied prior to or as of the first Credit Event;
(b) Borrower shall have submitted a Notice of Loan (or with
respect to a Letter of Credit, complied with the provisions of Section 2.3(b)
hereof) and otherwise complied with Section 2.7 hereof;
(c) no Default or Event of Default shall then exist or immediately
after the Credit Event would exist; and
(d) each of the representations and warranties contained in
Article VI hereof shall be true in all material respects as if made on and as of
the date of the Credit Event, except to the extent that any thereof expressly
relate to an earlier date.
Each request by Borrower for a Credit Event shall be deemed to be a
representation and warranty by Borrower as of the date of such request as to the
satisfaction of the conditions precedent specified in subsections (c) and (d)
above.
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Section 4.2. Conditions to the First Credit Event. The obligation of
the Lenders, the Fronting Lender and the Swing Line Lender to participate in the
first Credit Event is subject to Borrower satisfying each of the following
conditions prior to or concurrently with such Credit Event:
(a) Notes. Borrower shall have executed and delivered to each
Lender a Revolving Credit Note and shall have executed and delivered to the
Swing Line Lender the Swing Line Note.
(b) Guaranties of Payment of Debt. Each Guarantor of Payment shall
have executed and delivered to Agent a Guaranty of Payment of Debt.
(c) Pledge Agreement. Borrower and each Domestic Subsidiary that
has a Foreign Subsidiary shall have executed and delivered to Agent, for the
benefit of the Lenders, a Pledge Agreement, in form and substance satisfactory
to Agent, that provides, among other things, for a pledge of sixty-five percent
(65%) of the capital stock of each first-tier Foreign Subsidiary of such
Company.
(d) Officer's Certificate, Resolutions, Organizational Documents.
Each Credit Party shall have delivered to Agent an officer's certificate (or
comparable domestic or foreign documents) certifying the names of the officers
of such Credit Party authorized to sign the Loan Documents, together with the
true signatures of such officers and certified copies of (i) the resolutions of
the board of directors (or comparable domestic or foreign documents) of such
Credit Party evidencing approval of the execution and delivery of the Loan
Documents and the execution of other Related Writings to which such Credit Party
is a party, and (ii) the Organizational Documents of such Credit Party.
(e) Good Standing and Full Force and Effect Certificates. Borrower
shall have delivered to Agent a good standing certificate or full force and
effect certificate, as the case may be, for each Credit Party, issued on or
about the Closing Date by the Secretary of State in the state(s) where such
Credit Party is incorporated, formed or qualified as a foreign corporation
entity.
(f) Legal Opinion. Borrower shall have delivered to Agent an
opinion of counsel for Borrower and each other Credit Party, in form and
substance satisfactory to Agent and the Lenders.
(g) Borrower Investment Policy. Borrower shall have delivered to
Agent a copy of the Borrower Investment Policy as in effect on the Closing Date.
(h) Agent Fee Letter, Closing Fee Letter and Other Fees. Borrower
shall have (i) executed and delivered to Agent the Agent Fee Letter and paid to
Agent, for its sole account, the fees stated therein, (ii) executed and
delivered to Agent the Closing Fee Letter and paid to Agent, for the benefit of
the Lenders, the fees stated therein, and (iii) paid all legal fees and expenses
of Agent in connection with the preparation and negotiation of the Loan
Documents.
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(i) Lien Searches. With respect to the property owned or leased by
Borrower and each Guarantor of Payment, Borrower and each Guarantor of Payment,
if applicable, shall have caused to be delivered to Agent (i) the results of
Uniform Commercial Code lien searches, satisfactory to Agent and the Lenders,
(ii) the results of federal and state tax lien and judicial lien searches,
satisfactory to Agent and the Lenders, and (iii) Uniform Commercial Code
termination statements reflecting termination of all financing statements
previously filed by any Person and not expressly permitted pursuant to Section
5.9 hereof.
(j) Closing Certificate. Borrower shall have delivered to Agent
and the Lenders an officer's certificate certifying that, as of the Closing
Date, (i) all conditions precedent set forth in this Article IV have been
satisfied, (ii) no Default or Event of Default exists nor immediately after the
making of the first Loan or the issuance of the first Letter of Credit will
exist, and (iii) each of the representations and warranties contained in Article
VI hereof are true and correct in all material respects as of the Closing Date.
(k) Letter of Direction. Borrower shall have delivered to Agent a
letter of direction authorizing Agent, on behalf of the Lenders, to disburse the
proceeds of the Loans, which includes the transfer of funds under this Agreement
and wire instructions setting forth the locations to which such funds shall be
sent.
(l) No Material Adverse Change. No material adverse change, in the
opinion of Agent, shall have occurred in the financial condition, operations or
prospects of the Companies taken as a whole since September 30, 2003.
(m) Miscellaneous. Borrower shall have provided to Agent and the
Lenders such other items and shall have satisfied such other conditions as may
be reasonably required by Agent or the Lenders.
Section 4.3. Post-Closing Conditions.
(a) Foreign Shares. No later than thirty (30) days after the
Closing Date (unless a longer period is agreed to by Agent), with respect to any
foreign shares pledged to Agent, for the benefit of the Lenders, Borrower shall
deliver to Agent, for the benefit of the Lenders, the outstanding shares
certificates (or other evidence of equity) evidencing such pledged ownership
interest and cooperate with Agent in perfecting, if required by Agent, the
interest taken, under the laws of the applicable foreign jurisdiction. In
connection therewith, Borrower shall pay, upon request therefor, any foreign
counsel, or foreign notary, filing, registration or similar, fees, costs or
expenses; provided that, in the event that the Agent determines, in its sole
discretion, that the registration or perfection of any of the foregoing pledges
under the laws of a foreign jurisdiction is impractical or cost prohibitive,
then Agent may (i) forego registration or perfection of such interest in such
foreign jurisdiction, and (ii) if desirable, in its sole discretion, take a
pledge on and delivery of any Intercompany Note owing from such Foreign
Subsidiary and its Subsidiaries.
(b) Intercompany Notes. In lieu of a pledge by Borrower of
sixty-five percent (65%) of the shares of capital stock or other equity interest
of ▇▇▇▇▇ Investments CV (a first-tier
35
Foreign Subsidiary of Borrower), Borrower shall, at the discretion of Agent, (i)
pledge a security interest to Agent, for the benefit of the Lenders, in the
Intercompany Note owing from ▇▇▇▇▇ Investment CV and its Subsidiaries to
Borrower, and (ii) deliver to Agent, for the benefit of the Lenders, no later
than thirty (30) days after the Closing Date, such Intercompany Note.
ARTICLE V. COVENANTS
Section 5.1. Insurance. Each Company shall (a) maintain insurance to
such extent and against such hazards and liabilities as is commonly maintained
by Persons similarly situated; and (b) within ten days of any Lender's written
request, furnish to such Lender such information about such Company's insurance
as that Lender may from time to time reasonably request, which information shall
be prepared in form and detail satisfactory to such Lender and certified by a
Financial Officer of such Company.
Section 5.2. Money Obligations. Each Company shall pay in full (a)
prior in each case to the date when penalties would attach, all taxes,
assessments and governmental charges and levies (except only those so long as
and to the extent that the same shall be contested in good faith by appropriate
and timely proceedings and for which adequate provisions have been established
in accordance with GAAP) for which it may be or become liable or to which any or
all of its properties may be or become subject; (b) all of its wage obligations
to its employees in compliance with the Fair Labor Standards Act (29 U.S.C.
Sections 206-207) or any comparable provisions; and (c) all of its other
material obligations calling for the payment of money (except only those so long
as and to the extent that the same shall be contested in good faith and for
which adequate provisions have been established in accordance with GAAP) before
such payment becomes overdue.
Section 5.3. Financial Statements and Information.
(a) Quarterly Financials. Borrower shall deliver to Agent and the
Lenders, within forty-five (45) days after the end of each of the first three
quarter-annual periods of each fiscal year of Borrower, an unaudited condensed
consolidated balance sheet of the Companies as of the end of such period and the
related unaudited Consolidated statements of operations and cash flow, all
prepared on a Consolidated basis, in accordance with GAAP, and in form and
detail satisfactory to Agent and the Lenders and certified by a Financial
Officer of Borrower.
(b) Annual Audit Report. Borrower shall deliver to Agent and the
Lenders, within ninety (90) days after the end of each fiscal year of Borrower,
a copy of the audited Consolidated balance sheet of the Companies as of the end
of such fiscal year and the related Consolidated statements of operations,
changes in shareholders' equity and cash-flow (together with all footnotes
thereto) for such year, all prepared on a Consolidated basis, in accordance with
GAAP, and in form and detail satisfactory to Agent and the Lenders, and reported
on by the independent public accountants of nationally recognized standing to
the effect that such financial statements present fairly in all material
respects the financial condition and results of operations of the Companies for
such fiscal year together with a certificate by the accountant setting forth the
36
Defaults and Events of Default coming to its attention during the course of its
audit or, if none, a statement to that effect.
(c) Geographic Financials. Borrower shall deliver to Agent and the
Lenders, within forty-five (45) days after the end of each of the first three
quarter-annual periods of each fiscal year of Borrower and ninety (90) days
after the end of each fiscal year of Borrower, (i) a breakdown to separately
reflect financial information with respect to (A) Borrower and its Domestic
Subsidiaries, and (B) Foreign Subsidiaries of Borrower, and (ii) financial
information broken down by segments consistent with past practices of the
Companies and SEC reporting.
(d) Compliance Certificate. Borrower shall deliver to Agent and
the Lenders, concurrently with the delivery of the financial statements set
forth in subsections (a) and (b) above, a Compliance Certificate.
(e) Pro-Forma Projections. Borrower shall deliver to Agent and the
Lenders, within thirty (30) days after the end of each fiscal year of Borrower,
annual pro-forma projections of the Companies for the then current fiscal year,
to be in form acceptable to Agent.
(f) Shareholder and SEC Documents. Borrower shall deliver to Agent
and the Lenders, as soon as available, copies of all notices, reports,
definitive proxy or other statements and other documents sent by Borrower to its
shareholders, to the holders of any of its debentures or bonds or the trustee of
any indenture securing the same or pursuant to which they are issued, or sent by
Borrower (in final form) to any securities exchange or over the counter
authority or system, or to the SEC or any similar federal agency having
regulatory jurisdiction over the issuance of Borrower's securities.
(g) Financial Information of Companies. Borrower shall deliver to
Agent and the Lenders, within ten days of the written request of Agent or any
Lender, such other information about the financial condition, properties and
operations of any Company as Agent or such Lender may from time to time
reasonably request, which information shall be submitted in form and detail
satisfactory to Agent or such Lender and certified by a Financial Officer of the
Company or Companies in question.
Section 5.4. Financial Records. Each Company shall at all times
maintain true and complete records and books of account, including, without
limiting the generality of the foregoing, appropriate provisions for possible
losses and liabilities, all in accordance with GAAP, and at all reasonable times
(during normal business hours and upon notice to such Company) permit Agent, or
any representative of Agent, to examine such Company's books and records and to
make excerpts therefrom and transcripts thereof.
Section 5.5. Franchises; Change in Business.
(a) Each Company (other than a Dormant Subsidiary) shall preserve
and maintain at all times its existence, rights and franchises, except as
otherwise permitted pursuant to Section 5.12 hereof.
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(b) No Company shall engage in any business if, as a result
thereof, the general nature of the business of the Companies taken as a whole
would be substantially changed from the general nature of the business the
Companies are engaged in on the Closing Date.
Section 5.6. ERISA Compliance. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA Plan.
Borrower shall furnish to the Lenders (a) as soon as possible and in any event
within thirty (30) days after any Company knows or has reason to know that any
Reportable Event with respect to any ERISA Plan has occurred, a statement of a
Financial Officer of such Company, setting forth details as to such Reportable
Event and the action that such Company proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to the PBGC if
a copy of such notice is available to such Company, and (b) promptly after
receipt thereof a copy of any notice such Company, or any member of the
Controlled Group may receive from the PBGC or the Internal Revenue Service with
respect to any ERISA Plan administered by such Company; provided, that this
latter clause shall not apply to notices of general application promulgated by
the PBGC or the Internal Revenue Service. Borrower shall promptly notify the
Lenders of any material taxes assessed, proposed to be assessed or that Borrower
has reason to believe may be assessed against a Company by the Internal Revenue
Service with respect to any ERISA Plan. As used in this Section "material" means
the measure of a matter of significance that shall be determined as being an
amount equal to five percent (5%) of Consolidated Tangible Net Worth. As soon as
practicable, and in any event within twenty (20) days, after any Company shall
become aware that an ERISA Event shall have occurred, such Company shall provide
Agent with notice of such ERISA Event with a certificate by a Financial Officer
of such Company setting forth the details of the event and the action such
Company or another Controlled Group member proposes to take with respect
thereto. Borrower shall, at the request of Agent or any Lender, deliver or cause
to be delivered to Agent or such Lender, as the case may be, true and correct
copies of any documents relating to the ERISA Plan of any Company.
Section 5.7. Financial Covenants.
(a) Leverage Ratio. Borrower shall not suffer or permit at any
time the Leverage Ratio to be greater than 2.20 to 1.00.
(b) Interest Coverage Ratio. Borrower shall not suffer or permit
at any time the Interest Coverage Ratio to be less than 3.00 to 1.00.
(c) Consolidated Tangible Net Worth. Borrower shall not suffer or
permit at any time the Consolidated Tangible Net Worth, for the most recently
completed fiscal quarter of Borrower, to be less than the current minimum amount
required, which current minimum amount required shall be Two Hundred Four
Million One Hundred Forty Three Thousand Dollars ($204,143,000) on the Closing
Date through March 30, 2004, with such current minimum amount required to be
positively increased on March 31, 2004 by the Increase Amount for the quarter
ending March 31, 2004, and further increased by an additional Increase Amount on
the last day of each fiscal quarter of Borrower thereafter. As used herein, the
term "Increase Amount" shall mean an amount equal to (A) fifty percent (50%) of
positive Consolidated Net
38
Earnings (with no deduction for losses) for the fiscal quarter then ended, plus
(B) one hundred percent (100%) of the proceeds of any equity offering by the
Companies, or any debt offering of the Companies, to the extent converted into
equity. For purposes of calculating this financial covenant, all calculations
shall exclude the effects of currency translation adjustments occurring after
September 30, 2003.
(d) Quick Ratio. Borrower shall not suffer or permit at any time
the Quick Ratio to be less than 1.50 to 1.00.
Section 5.8. Borrowing. No Company shall create, incur or have
outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall
not apply to the following:
(a) the Loans, the Letters of Credit or any other Indebtedness
under this Agreement;
(b) any loans granted to or capital leases entered into by any
Credit Party for the purchase or lease of fixed assets (and refinancings of such
loans or capital leases), which loans and capital leases shall only be secured
by the fixed assets being purchased, so long as the aggregate principal amount
of all such loans and leases for all Credit Parties shall not exceed Five
Million Dollars ($5,000,000) at any time outstanding;
(c) any loans granted to or capital leases entered into by any
Foreign Subsidiary for the purchase or lease of fixed assets (and refinancings
of such loans or capital leases), which loans and capital leases shall only be
secured by the fixed assets being purchased, so long as the aggregate principal
amount of all such loans and leases for all Foreign Subsidiaries shall not
exceed Ten Million Dollars ($10,000,000) at any time outstanding;
(d) the Indebtedness existing on the Closing Date, in addition to
the other Indebtedness permitted to be incurred pursuant to this Section 5.8, as
set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing
thereof so long as the principal amount thereof shall not be increased after the
Closing Date);
(e) loans to a Company from a Company so long as each such Company
is a Credit Party;
(f) Indebtedness under any Hedge Agreement, so long as such Hedge
Agreement shall have been entered into in the ordinary course of business and
not for speculative purposes;
(g) Permitted Foreign Subsidiary Loans and Investments; and
(h) unsecured Indebtedness of a Foreign Subsidiary, so long as the
aggregate principal amount of all such Indebtedness for all Foreign Subsidiaries
shall not exceed Ten Million Dollars ($10,000,000) at any time outstanding.
Section 5.9. Liens. No Company shall create, assume or suffer to exist
any Lien upon any of its property or assets, whether now owned or hereafter
acquired; provided that this Section shall not apply to the following:
39
(a) Liens for taxes not yet due or that are being actively
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been established in accordance with GAAP;
(b) other statutory or common law Liens incidental to the conduct
of its business or the ownership of its property and assets that (i) were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit, and (ii) do not in the aggregate materially detract from the value of
its property or assets or materially impair the use thereof in the operation of
its business;
(c) Liens on property or assets of a Subsidiary to secure
obligations of such Subsidiary to a Credit Party;
(d) purchase money Liens on fixed assets securing the loans and
capitalized leases pursuant to Section 5.8(b) or (c) hereof, provided that such
Lien is limited to the purchase price and only attaches to the property being
acquired;
(e) the Liens existing on the Closing Date as set forth in
Schedule 5.9 hereto and replacements, extensions, renewals, refundings or
refinancings thereof, but only to the extent that the amount of debt secured
thereby shall not be increased;
(f) easements or other minor defects or irregularities in title of
real property not interfering in any material respect with the use of such
property in the business of any Company;
(g) any Lien granted to Agent, for the benefit of the Lenders; or
(h) any Lien on fixed assets owned by a Company as a result of an
Acquisition permitted pursuant to Section 5.13 hereof, so long as such Lien (i)
is released within ninety (90) days of such Acquisition (unless Borrower shall
have obtained the prior written consent of Agent and the Required Lenders), and
(ii) such Lien was not created at the time of or in contemplation of such
Acquisition.
No Company shall enter into any contract or agreement (other than a contract or
agreement entered into in connection with the purchase or lease of fixed assets
that prohibits Liens on such fixed assets) that would prohibit Agent or the
Lenders from acquiring a security interest, mortgage or other Lien on, or a
collateral assignment of, any of the property or assets of such Company.
Section 5.10. Regulations T, U and X. No Company shall take any action
that would result in any non-compliance of the Loans or Letters of Credit with
Regulations T, U or X, or any other applicable regulation, of the Board of
Governors of the Federal Reserve System.
Section 5.11. Investments and Loans. No Company shall, without the
prior written consent of Agent and the Required Lenders, (a) create, acquire or
hold any Subsidiary, (b) make or hold any investment in any stocks, bonds or
securities of any kind, (c) be or become a party to
40
any joint venture or other partnership, (d) make or keep outstanding any advance
or loan to any Person, or (e) be or become a Guarantor of any kind; provided
that this Section 5.11 shall not apply to the following:
(i) any endorsement of a check or other medium of payment
for deposit or collection through normal banking channels or similar
transaction in the normal course of business;
(ii) any investment in direct obligations of the United
States of America or in certificates of deposit issued by a member bank
(having capital resources in excess of One Hundred Million Dollars
($100,000,000)) of the Federal Reserve System;
(iii) any investment in commercial paper or securities that
at the time of such investment is assigned the highest quality rating
in accordance with the rating systems employed by either ▇▇▇▇▇'▇ or
Standard & Poor's, or any other investment made according to the
Borrower Investment Policy;
(iv) the holding of each of the Subsidiaries listed on
Schedule 6.1 hereto, and the creation, acquisition and holding of any
new Subsidiary after the Closing Date so long as such new Subsidiary
shall have been created, acquired or held in accordance with the terms
and conditions of this Agreement;
(v) loans to a Company from a Company so long as each
such Company is Borrower or a Guarantor of Payment;
(vi) any Permitted Investment or Permitted Foreign
Subsidiary Loans and Investments, so long as no Default or Event of
Default shall then exist or would result therefrom; or
(vii) the holding of any stock that has been acquired
pursuant to an Acquisition permitted by Section 5.13 hereof.
Section 5.12. Merger and Sale of Assets. No Company shall merge,
amalgamate or consolidate with any other Person, or sell, lease or transfer or
otherwise dispose of any assets to any Person other than in the ordinary course
of business, except that, if no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:
(a) any Domestic Subsidiary may merge with (i) Borrower (provided
that Borrower shall be the continuing or surviving Person) or (ii) any one or
more Guarantors of Payment;
(b) Borrower may merge with any Company (provided that Borrower
shall be the continuing or surviving Person);
(c) any Domestic Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to (i) Borrower or (ii) any Guarantor of Payment;
41
(d) any Domestic Subsidiary (other than a Credit Party) may merge
with or sell, lease, transfer or otherwise dispose of any of its assets to any
other Domestic Subsidiary;
(e) any Foreign Subsidiary may merge or amalgamate with a Credit
Party provided that a Credit Party shall be the continuing or surviving Person
and Borrower shall be a continuing or surviving Person;
(f) any Foreign Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to a Credit Party or any other Foreign Subsidiary;
(g) any Company may sell, lease, transfer or otherwise dispose of
any assets that are obsolete or no longer useful or no longer used in such
Company's business; or
(h) Acquisitions may be effected in accordance with the provisions
of Section 5.13 hereof.
Section 5.13. Acquisitions. No Company shall effect an Acquisition;
provided, however, that a Credit Party may effect an Acquisition so long as:
(a) the business to be acquired shall be similar to the lines of
business of the Companies;
(b) the Companies shall be in full compliance with the Loan
Documents both prior to and subsequent to such Acquisition;
(c) no Default or Event of Default shall exist prior to and after
giving effect to such Acquisition;
(d) such Acquisition is not actively opposed by the board of
directors (or similar governing body) of the selling Persons or the Persons
whose equity interests are to be acquired;
(e) the Liquidity Amount shall be no less than Twenty-Five Million
Dollars ($25,000,000) after giving effect to each such Acquisition;
(f) after giving effect to such Acquisition, the proforma
calculation of Consolidated EBITDA projected for the end of each of the rolling
four-quarter periods of Borrower following such Acquisition is equal to or
greater than such calculation without giving effect to such Acquisition;
(g) the aggregate amount of Consideration (exclusive of the
issuance of equity) shall not exceed (i) Thirty Million Dollars ($30,000,000)
for each such Acquisition, and (ii) Fifty Million Dollars ($50,000,000) for all
Acquisitions by the Companies in a twelve-month period; and
42
(h) the aggregate amount of Consideration (including the issuance
of equity securities) for each such Acquisition shall not exceed Seventy-Five
Million Dollars ($75,000,000).
Section 5.14. Notice. Borrower shall cause a Financial Officer of
Borrower to promptly notify Agent and the Lenders whenever any Default or Event
of Default may occur hereunder or any representation or warranty made in Article
VI hereof or elsewhere in this Agreement or in any Related Writing may for any
reason cease in any material respect to be true and complete.
Section 5.15. Environmental Compliance. Each Company shall comply in
all material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which such Company owns
or operates a facility or site, arranges for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts for transport any hazardous
substances, solid waste or other wastes or holds any interest in real property
or otherwise. Borrower shall furnish to the Lenders, promptly after receipt
thereof, a copy of any notice any Company may receive from any Governmental
Authority, private Person or otherwise that any material litigation or
proceeding pertaining to any environmental, health or safety matter has been
filed or is threatened against such Company, any real property in which such
Company holds any interest or any past or present operation of such Company. No
Company shall allow the release or disposal of hazardous waste, solid waste or
other wastes on, under or to any real property in which any Company holds any
interest or performs any of its operations, in violation of any Environmental
Law. As used in this Section, "litigation or proceeding" means any demand,
claim, notice, suit, suit in equity action, administrative action, investigation
or inquiry whether brought by any Governmental Authority, private Person or
otherwise. Borrower shall defend, indemnify and hold Agent and the Lenders
harmless against all costs, expenses, claims, damages, penalties and liabilities
of every kind or nature whatsoever (including attorneys' fees) arising out of or
resulting from the noncompliance of any Company with any Environmental Law. Such
indemnification shall survive any termination of this Agreement.
Section 5.16. Affiliate Transactions. No Company shall, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Company that is a
Credit Party) on terms that shall be less favorable to such Company than those
that might be obtained at the time in a transaction with a non-Affiliate;
provided, however, that the foregoing shall not prohibit the payment of
customary and reasonable directors' fees to directors who are not employees of a
Company or an Affiliate.
Section 5.17. Use of Proceeds. Borrower's use of the proceeds of the
Notes shall be solely for working capital, acquisitions, share repurchases,
letters of credit and other general corporate purposes of the Companies.
Section 5.18. Subsidiary Guaranties and Pledge of Stock or Other
Ownership Interest.
(a) Guaranties. Each Domestic Subsidiary of a Company (that is not
a Dormant Subsidiary) created, acquired or held subsequent to the Closing Date,
shall immediately execute and deliver to Agent, for the benefit of the Lenders,
a Guaranty of Payment of all of the Debt,
43
such agreement to be in form and substance acceptable to Agent, along with any
such other supporting documentation, corporate governance and authorization
documents, and an opinion of counsel as may be deemed necessary or advisable by
Agent.
(b) Pledge of Stock. With respect to the creation or acquisition
of a first-tier Foreign Subsidiary of Borrower or a Domestic Subsidiary,
Borrower shall (i) pledge to Agent, for the benefit of the Lenders, sixty-five
percent (65%) of the ownership interest owned by a Credit Party pursuant to the
terms of a Pledge Agreement executed by the appropriate Credit Party, and (ii)
deliver to Agent, for the benefit of the Lenders, the outstanding shares
certificates (or other evidence of equity) evidencing such pledged ownership
interest.
(c) Perfection or Registration of Interest in Foreign Shares. With
respect to any foreign shares pledged to Agent, for the benefit of the Lenders,
on or after the Closing Date, Agent shall at all times, in the discretion of
Agent or the Required Lenders, have the right to perfect, at Borrower's cost,
payable upon request therefor (including, without limitation, any foreign
counsel, or foreign notary, filing, registration or similar, fees, costs or
expenses), its security interest in such shares in the respective foreign
jurisdiction.
(d) Pledge of Intercompany Notes. Notwithstanding anything in this
Section 5.18 to the contrary, in the event that the Agent determines, in its
sole discretion, that the registration or perfection of any of the pledges
pursuant to subsection (c) above under the laws of a foreign jurisdiction is
impractical or cost prohibitive, then Agent may (i) forego registration or
perfection of such interest in such foreign jurisdiction, and (ii) if desirable,
in its sole discretion and with the concurrence of Borrower, take a pledge on,
and delivery of, any Intercompany Note owing from such Foreign Subsidiary and
its Subsidiaries. To the extent Borrower shall, pursuant to Section 4.3 or
5.18(d) hereof, have delivered an Intercompany Note to Agent, for the benefit of
the Lenders, in lieu of any foreign shares, Borrower shall have the right to
request the return of such Intercompany Note from Agent if (A) no Default or
Event of Default shall have occurred, and (B) Borrower shall have pledged the
appropriate foreign shares to Agent, in form and substance satisfactory to
Agent.
Section 5.19. Restricted Payments. No Company shall pay or commit
itself to pay any Restricted Payment at any time, except that (a) any Subsidiary
may make Capital Distributions to Borrower, and (b) so long as no Default or
Event of Default shall then exist or immediately thereafter shall begin to
exist, Borrower may make Capital Distributions.
Section 5.20. Restrictive Agreements. Except as set forth in this
Agreement, Borrower shall not, and shall 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 Subsidiary to (a)
make, directly or indirectly, any Capital Distribution to Borrower, (b) make,
directly or indirectly, loans or advances or capital contributions to Borrower
or (c) transfer, directly or indirectly, any of the properties or assets of such
Subsidiary to Borrower; except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) customary non-assignment
provisions in leases or other agreements entered in the ordinary course of
business and consistent with past practices, or (iii) customary restrictions in
security agreements or mortgages securing Indebtedness or capital leases of a
Company to the extent such
44
restrictions shall only restrict the transfer of the property subject to such
security agreement, mortgage or lease.
Section 5.21. Other Covenants. In the event that any Company shall
enter into, or shall have entered into, any Material Indebtedness Agreement,
wherein the financial covenants contained therein shall be more restrictive than
the financial covenants set forth herein, then the Companies shall be bound
hereunder by such financial covenants with the same force and effect as if such
financial covenants were written herein.
Section 5.22. Guaranty Under Material Indebtedness Agreement. No
Company shall be or become a Guarantor of the Indebtedness incurred pursuant to
any Material Indebtedness Agreement unless such Company shall also be Borrower
or a Guarantor of Payment under this Agreement prior to or concurrently
therewith.
Section 5.23. Pari Passu Ranking. The Debt shall, and Borrower shall
take all necessary action to ensure that the Debt shall, at all times, rank at
least pari passu in right of payment with all other senior unsecured
Indebtedness of Borrower.
Section 5.24. Amendment of Organizational Documents. No Company shall
amend its Organizational Documents to change its name or state of organization,
or otherwise amend its Organizational Documents in any manner adverse to the
Lenders, without the prior written consent of Agent, which consent shall not be
unreasonably withheld or delayed.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification.
Each Credit Party is duly organized, validly existing, and in good standing
under the laws of its state or jurisdiction of incorporation or organization and
is duly qualified and authorized to do business and is in good standing as a
foreign entity in the jurisdictions set forth opposite its name on Schedule 6.1
hereto, which are all of the states or jurisdictions where the character of its
property or its business activities makes such qualification necessary, except
where a failure to qualify will not result in a Material Adverse Effect. Each
Foreign Subsidiary is validly existing under the laws of its jurisdiction of
organization. Schedule 6.1 hereto sets forth, as of the Closing Date, each
Subsidiary of Borrower (and whether such Subsidiary is a Dormant Subsidiary),
its state of formation, its relationship to Borrower, including the percentage
of each class of stock owned by a Company, each Person that owns the stock or
other equity interest of each Company, the location of its chief executive
offices and its principal place of business.
Section 6.2. Corporate Authority. Each Credit Party has the right and
power and is duly authorized and empowered to enter into, execute and deliver
the Loan Documents to which it is a party and to perform and observe the
provisions of the Loan Documents. The Loan Documents to which each Credit Party
is a party have been duly authorized and approved by such Credit Party's board
of directors or other governing body, as applicable, and are the valid and
binding obligations of such Credit Party, enforceable against such Credit Party
in accordance with their respective terms. The execution, delivery and
performance of the Loan Documents will not
45
conflict with nor result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any Lien (other than
Liens permitted under Section 5.9 hereof) upon any assets or property of any
Company under the provisions of, such Company's Organizational Documents or any
agreement.
Section 6.3. Compliance with Laws and Contracts. Each Company:
(a) holds permits, certificates, licenses, orders, registrations,
franchises, authorizations, and other approvals from any Governmental Authority
necessary for the conduct of its business and is in compliance, in all material
respects, with all applicable laws relating thereto;
(b) is in compliance, in all material respects, with all federal,
state, local, or foreign applicable statutes, rules, regulations, and orders
including, without limitation, those relating to environmental protection,
occupational safety and health, and equal employment practices; and
(c) is not in violation of or in default under any material
agreement to which it is a party or by which its assets are subject or bound.
Section 6.4. Litigation and Administrative Proceedings. Except as
disclosed on Schedule 6.4 hereto, there are (a) no lawsuits, actions,
investigations, or other proceedings pending or threatened against any Company,
or in respect of which any Company may have any liability, in any court or
before any Governmental Authority, arbitration board, or other tribunal, (b) no
orders, writs, injunctions, judgments, or decrees of any court or government
agency or instrumentality to which any Company is a party or by which the
property or assets of any Company are bound, or (c) no grievances, disputes, or
controversies outstanding with any union or other organization of the employees
of any Company, or threats of work stoppage, strike, or pending demands for
collective bargaining, that, as to (a) through (c) above, if violated or
determined adversely, would have a Material Adverse Effect.
Section 6.5. Title to Assets. Each Company has good title to and
ownership of all property it purports to own, which property is free and clear
of all Liens, except those permitted under Section 5.9 hereof.
Section 6.6. Liens and Security Interests. On and after the Closing
Date, except for Liens permitted pursuant to Section 5.9 hereof, (a) there is
and will be no financing statement or similar notice of Lien outstanding
covering any personal property of any Company; (b) there is and will be no
mortgage outstanding covering any real property of any Company; and (c) no real
or personal property of any Company is subject to any security interest or Lien
of any kind. No Company has entered into any contract or agreement (other than a
contract or agreement entered into in connection with the purchase or lease of
fixed assets that prohibits Liens on such fixed assets) that exists on or after
the Closing Date that would prohibit Agent or the Lenders from acquiring a Lien
on, or a collateral assignment of, any of the property or assets of any Company.
Section 6.7. Tax Returns. All federal, state, provincial and local tax
returns and other reports required by law to be filed in respect of the income,
business, properties and employees
46
of each Company have been filed and all taxes, assessments, fees and other
governmental charges that are due and payable have been paid, except as
otherwise permitted herein. The provision for taxes on the books of each Company
is adequate on a GAAP basis.
Section 6.8. Environmental Laws. Each Company is in material compliance
with all Environmental Laws, including, without limitation, all Environmental
Laws in all jurisdictions in which any Company owns or operates, or has owned or
operated, a facility or site, arranges or has arranged for disposal or treatment
of hazardous substances, solid waste or other wastes, accepts or has accepted
for transport any hazardous substances, solid waste or other wastes or holds or
has held any interest in real property or otherwise. No litigation or proceeding
arising under, relating to or in connection with any Environmental Law is
pending or, to the best knowledge of each Company, threatened, against any
Company, any real property in which any Company holds or has held an interest or
any past or present operation of any Company. No material release, threatened
release or disposal of hazardous waste, solid waste or other wastes is
occurring, or has occurred (other than those that are currently being cleaned up
in accordance with Environmental Laws), on, under or to any real property in
which any Company holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this Section, "litigation or
proceeding" means any demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
Governmental Authority or private Person, or otherwise.
Section 6.9. Continued Business. There exists no actual, pending, or,
to Borrower's knowledge, any threatened termination, cancellation or material
limitation of, or any materially adverse modification or change in the business
relationship of any Company and any customer or supplier, or any group of
customers or suppliers, whose purchases or supplies, individually or in the
aggregate, would have a Material Adverse Effect, and there exists no present
condition or state of facts or circumstances that would have a Material Adverse
Effect or prevent a Company from conducting such business or the transactions
contemplated by this Agreement in substantially the same manner in which it was
previously conducted.
Section 6.10. Employee Benefits Plans. Schedule 6.10 hereto identifies
each ERISA Plan as of the Closing Date. No ERISA Event has occurred or is
expected to occur with respect to an ERISA Plan. Full payment has been made of
all amounts that a Controlled Group member is required, under applicable law or
under the governing documents, to have paid as a contribution to or a benefit
under each ERISA Plan. The liability of each Controlled Group member with
respect to each ERISA Plan has been fully funded based upon reasonable and
proper actuarial assumptions, has been fully insured, or has been fully reserved
for on its financial statements. No changes have occurred or are expected to
occur that would cause a material increase in the cost of providing benefits
under the ERISA Plan. With respect to each ERISA Plan that is intended to be
qualified under Code Section 401(a), (a) the ERISA Plan and any associated trust
operationally comply with the applicable requirements of Code Section 401(a);
(b) the ERISA Plan and any associated trust have been amended to comply with all
such requirements as currently in effect, other than those requirements for
which a retroactive amendment can be made within the "remedial amendment period"
available under Code Section 401(b) (as extended under Treasury Regulations and
other Treasury pronouncements upon which taxpayers may rely); (c) the ERISA Plan
and any associated trust have received a favorable
47
determination letter from the Internal Revenue Service stating that the ERISA
Plan qualifies under Code Section 401(a), that the associated trust qualifies
under Code Section 501(a) and, if applicable, that any cash or deferred
arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the
ERISA Plan was first adopted at a time for which the above-described "remedial
amendment period" has not yet expired; (d) the ERISA Plan currently satisfies
the requirements of Code Section 410(b), subject to any retroactive amendment
that may be made within the above-described "remedial amendment period"; and (e)
no contribution made to the ERISA Plan is subject to an excise tax under Code
Section 4972. With respect to any Pension Plan, the "accumulated benefit
obligation" of Controlled Group members with respect to the Pension Plan (as
determined in accordance with Statement of Accounting Standards No. 87,
"Employers' Accounting for Pensions") does not exceed the fair market value of
Pension Plan assets.
Section 6.11. Consents or Approvals. Except for the filing of
termination statements for outstanding financing statements and filings
necessary to perfect the security interest of Agent and the Lenders in the
Pledged Securities, no consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other
Person is required to be obtained or completed by any Company in connection with
the execution, delivery or performance of any of the Loan Documents, that has
not already been obtained or completed.
Section 6.12. Solvency. Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that Borrower has
incurred to Agent and the Lenders. Borrower is not insolvent as defined in any
applicable state, federal or relevant foreign statute, nor will Borrower be
rendered insolvent by the execution and delivery of the Loan Documents to Agent
and the Lenders. Borrower is not engaged or about to engage in any business or
transaction for which the assets retained by it are or will be an unreasonably
small amount of capital, taking into consideration the obligations to Agent and
the Lenders incurred hereunder. Borrower does not intend to, nor does it believe
that it will, incur debts beyond its ability to pay such debts as they mature.
Section 6.13. Financial Statements. The Consolidated financial
statements of Borrower, for the fiscal year ended December 31, 2002 and the
unaudited Consolidated financial statements of Borrower for the fiscal quarter
ended September 30, 2003, furnished to Agent and the Lenders, are materially
true and complete, have been prepared in accordance with GAAP, and fairly
present the financial condition of the Companies as of the dates of such
financial statements and the results of their operations for the periods then
ending. Since the dates of such statements, there has been no material adverse
change in the financial condition, properties or business of the Companies taken
as a whole.
Section 6.14. Regulations. No Company is engaged principally or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying any "margin stock" (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System of the United States of
America). Neither the granting of any Loan (or any conversion thereof) or Letter
of Credit nor the use of the proceeds of any Loan or Letter of Credit will
violate, or be inconsistent with, the provisions of Regulation T, U or X or any
other Regulation of such Board of Governors.
48
Section 6.15. Material Agreements. Except as disclosed on Schedule 6.15
hereto, no Company is a party to any (a) debt instrument (excluding the Loan
Documents); (b) lease (capital or operating), whether as lessee or lessor
thereunder; (c) contract, commitment, agreement, or other arrangement involving
the purchase or sale of any inventory by it, or the license of any right to or
by it; (d) contract, commitment, agreement, or other arrangement with any of its
"Affiliates" (as such term is defined in the Securities Exchange Act of 1934, as
amended) other than a Company; (e) management or employment contract or contract
for personal services with any of its Affiliates that is not otherwise
terminable at will or on less than ninety (90) days' notice without liability;
(f) collective bargaining agreement; or (g) other contract, agreement,
understanding, or arrangement with a third party that, as to subsections (a)
through (g), requires the future payment of an amount in excess of Ten Million
Dollars ($10,000,000).
Section 6.16. Intellectual Property. Each Company owns or has the right
to use all of the patents, patent applications, industrial designs, trademarks,
service marks, copyrights, licenses, and rights with respect to the foregoing
necessary for the conduct of its business without any known conflict with the
rights of others.
Section 6.17. Insurance. Each Company maintains with financially sound
and reputable insurers insurance with coverage and limits as required by law and
as is customary with Persons engaged in the same businesses as the Companies.
Section 6.18. Accurate and Complete Statements. Neither the Loan
Documents nor any written statement made by any Company in connection with any
of the Loan Documents contains any untrue statement of a material fact or omits
a material fact necessary to make the statements contained therein or in the
Loan Documents not misleading. After due inquiry by Borrower, there is no known
fact that any Company has not disclosed to Agent and the Lenders that has or is
likely to have a Material Adverse Effect.
Section 6.19. Investment Company; Holding Company. No Company is (a) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (b) subject to
regulation under the Public Utility Holding Company Act of 1935 or the Federal
Power Act, each as amended.
Section 6.20. Defaults. No Default or Event of Default exists
hereunder, nor will any begin to exist immediately after the execution and
delivery hereof.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
Section 7.1. Payments. If (a) the interest on any Note or any
commitment or other fee shall not be paid in full punctually when due and
payable or within three Business Days
49
thereafter, or (b) the principal of any Note or any obligation under any Letter
of Credit shall not be paid in full when due and payable.
Section 7.2. Special Covenants. If any Company shall fail or omit to
perform and observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13 or 5.20 hereof.
Section 7.3. Other Covenants. If any Company shall fail or omit to
perform and observe any agreement or other provision (other than those referred
to in Section 7.1 or 7.2 hereof) contained or referred to in this Agreement or
any Related Writing that is on such Company's part to be complied with, and that
Default shall not have been fully corrected within thirty (30) days after the
earlier of (a) any Financial Officer of such Company becomes aware of the
occurrence thereof, or (b) the giving of written notice thereof to Borrower by
Agent or the Required Lenders that the specified Default is to be remedied.
Section 7.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company to the
Lenders or any thereof or any other holder of any Note, shall be false or
erroneous in any material respect.
Section 7.5. Cross Default. If any Company shall default in the payment
of principal or interest due and owing under any Material Indebtedness Agreement
beyond any period of grace provided with respect thereto or in the performance
or observance of any other provision, term or condition contained in any
Material Indebtedness Agreement under which such obligation is created, if the
effect of such default is to allow the acceleration of the maturity of such
Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to its stated maturity.
Section 7.6. ERISA Default. The occurrence of one or more ERISA Events
that (a) the Required Lenders determine could have a Material Adverse Effect, or
(b) results in a Lien on any of the assets of any Company.
Section 7.7. Change in Control. If any Change in Control shall occur.
Section 7.8. Money Judgment. A final judgment or order for the payment
of money shall be rendered against any Company by a court of competent
jurisdiction, that remains unpaid or unstayed and undischarged for a period
(during which execution shall not be effectively stayed) of thirty (30) days
after the date on which the right to appeal has expired, provided that the
aggregate of all such judgments for all such Companies shall exceed Five Million
Dollars ($5,000,000) in excess of any amounts insured and to which the
applicable insurance carrier shall have acknowledged coverage without any
reservation of rights.
Section 7.9. Material Adverse Change. There shall have occurred any
condition or event that Agent or the Required Lenders determine has or is
reasonably likely to have a Material Adverse Effect.
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Section 7.10. Validity of Loan Documents. (a) Any material provision,
in the sole opinion of Agent, of any Loan Document shall at any time for any
reason cease to be valid, binding and enforceable against any Credit Party; (b)
the validity, binding effect or enforceability of any Loan Document against any
Credit Party shall be contested by any Credit Party; (c) any Credit Party shall
deny that it has any or further liability or obligation under any Loan Document;
or (d) any Loan Document shall be terminated, invalidated or set aside, or be
declared ineffective or inoperative or in any way cease to give or provide to
Agent and the Lenders the benefits purported to be created thereby. In addition
to any other material Loan Documents, this Agreement, each Note and each
Guaranty of Payment shall be deemed to be "material".
Section 7.11. Solvency. If any Company (other than ▇▇▇▇▇ E-Commerce
Incorporated or a Dormant Subsidiary) shall (a) except as permitted pursuant to
Section 5.12 hereof, discontinue business, (b) generally not pay its debts as
such debts become due, (c) make a general assignment for the benefit of
creditors, (d) apply for or consent to the appointment of an interim receiver, a
receiver and manager, an administrator, sequestrator, monitor, a custodian, a
trustee, an interim trustee or liquidator of all or a substantial part of its
assets, (e) be adjudicated a debtor or insolvent or have entered against it an
order for relief under Title 11 of the United States Code, or under any other
bankruptcy insolvency, liquidation, winding-up, corporate or similar statute or
law, foreign, federal state, in any applicable jurisdiction, now or hereafter
existing, as any of the foregoing may be amended from time to time, or other
applicable statute for jurisdictions outside of the United States, as the case
may be, (f) file a voluntary petition in bankruptcy, or file a proposal or
notice of intention to file a proposal or have an involuntary proceeding filed
against it and the same shall continue undismissed for a period of sixty (60)
days from commencement of such proceeding or case, or file a petition or an
answer or an application or proposal seeking reorganization or an arrangement
with creditors or seeking to take advantage of any other law (whether federal or
state, or, if applicable, other jurisdiction) relating to relief of debtors, or
admit (by answer, by default or otherwise) the material allegations of a
petition filed against it in any bankruptcy, reorganization, insolvency or other
proceeding (whether federal or state, or, if applicable, other jurisdiction)
relating to relief of debtors, (g) suffer or permit or to continue unstayed and
in effect for sixty (60) consecutive days any judgment, decree or order entered
by a court of competent jurisdiction, that approves a petition or an application
or a proposal seeking its reorganization or appoints an interim receiver, a
receiver and manager, an administrator, custodian, trustee, interim trustee or
liquidator of all or a substantial part of its assets, (h) have an
administrative receiver appointed over the whole or substantially the whole of
its assets, (i) take, or omit to take, any action in order thereby to effect any
of the foregoing, or (j) have a moratorium declared in respect of any of its
Indebtedness, or any analogous procedure or step is taken in any jurisdiction.
ARTICLE VIII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or
elsewhere:
Section 8.1. Optional Defaults. If any Event of Default referred to in
Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 or 7.10 hereof shall occur,
Agent may, with the consent of the
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Required Lenders, and shall, at the request of the Required Lenders, give
written notice to Borrower, to:
(a) terminate the Commitment, if not previously terminated, and,
immediately upon such election, the obligations of the Lenders, and each
thereof, to make any further Loan and the obligation of the Fronting Lender to
issue any Letter of Credit immediately shall be terminated, and/or
(b) accelerate the maturity of all of the Debt (if the Debt is not
already due and payable), whereupon all of the Debt shall become and thereafter
be immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived
by Borrower.
Section 8.2. Automatic Defaults. If any Event of Default referred to in
Section 7.11 hereof shall occur:
(a) all of the Commitment shall automatically and immediately
terminate, if not previously terminated, and no Lender thereafter shall be under
any obligation to grant any further Loan, nor shall the Fronting Lender be
obligated to issue any Letter of Credit, and
(b) the principal of and interest then outstanding on all of the
Notes, and all of the other Debt, shall thereupon become and thereafter be
immediately due and payable in full (if the Debt is not already due and
payable), all without any presentment, demand or notice of any kind, which are
hereby waived by Borrower.
Section 8.3. Letters of Credit. If the maturity of the Debt shall be
accelerated pursuant to Section 8.1 or 8.2 hereof, Borrower shall immediately
deposit with Agent, as security for the obligations of Borrower and any
Guarantor of Payment to reimburse Agent and the Lenders for any then outstanding
Letters of Credit, cash equal to the sum of the aggregate undrawn balance of any
then outstanding Letters of Credit. Agent and the Lenders are hereby authorized,
at their option, to deduct any and all such amounts from any deposit balances
then owing by any Lender (or any affiliate of such Lender) to or for the credit
or account of any Company, as security for the obligations of Borrower and any
Guarantor of Payment to reimburse Agent and the Lenders for any then outstanding
Letters of Credit.
Section 8.4. Offsets. If there shall occur or exist any Event of
Default referred to in Section 7.11 hereof or if the maturity of the Debt is
accelerated pursuant to Section 8.1 or 8.2 hereof, each Lender shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all Debt then owing by Borrower to such Lender (including,
without limitation, any participation purchased or to be purchased pursuant to
Section 2.3, 2.4 or 8.5 hereof), whether or not the same shall then have
matured, any and all deposit (general or special) balances and all other
indebtedness then held or owing by such Lender (including, without limitation,
by branches and agencies or any affiliate of such Lender, wherever located) to
or for the credit or account of Borrower or any Guarantor of Payment, all
without notice to or demand upon Borrower or any other Person, all such notices
and demands being hereby expressly waived by Borrower.
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Section 8.5. Equalization Provision. Each Lender agrees with the other
Lenders that if it, at any time, shall obtain any Advantage over the other
Lenders or any thereof in respect of the Debt (except as to Swing Loans and
Letters of Credit prior to Agent's giving of notice to participate and except
under Article III hereof), it shall purchase from the other Lenders, for cash
and at par, such additional participation in the Debt as shall be necessary to
nullify the Advantage. If any such Advantage resulting in the purchase of an
additional participation as aforesaid shall be recovered in whole or in part
from the Lender receiving the Advantage, each such purchase shall be rescinded,
and the purchase price restored (but without interest unless the Lender
receiving the Advantage is required to pay interest on the Advantage to the
Person recovering the Advantage from such Lender) ratably to the extent of the
recovery. Each Lender further agrees with the other Lenders that if it at any
time shall receive any payment for or on behalf of Borrower on any indebtedness
owing by Borrower to that Lender (whether by voluntary payment, by realization
upon security, by reason of offset of any deposit or other indebtedness, by
counterclaim or cross-action, by the enforcement of any right under any Loan
Document, or otherwise), it will apply such payment first to any and all Debt
owing by Borrower to that Lender (including, without limitation, any
participation purchased or to be purchased pursuant to this Section or any other
Section of this Agreement). Borrower agrees that any Lender so purchasing a
participation from the other Lenders or any thereof pursuant to this Section may
exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender was a direct creditor
of Borrower in the amount of such participation.
Section 8.6. Other Remedies. The remedies in this Article VIII are in
addition to, not in limitation of, any other right, power, privilege, or remedy,
either in law, in equity, or otherwise, to which the Lenders may be entitled.
Agent shall exercise the rights under this Article VIII and all other collection
efforts on behalf of the Lenders and no Lender shall act independently with
respect thereto, except as otherwise specifically set forth in this Agreement.
ARTICLE IX. THE AGENT
The Lenders authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Lenders in respect of this
Agreement upon the terms and conditions set forth elsewhere in this Agreement,
and upon the following terms and conditions:
Section 9.1. Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes Agent to take such action as agent on its
behalf and to exercise such powers hereunder as are delegated to Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
Neither Agent nor any of its affiliates, directors, officers, attorneys or
employees shall (a) be liable for any action taken or omitted to be taken by it
or them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction), or be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or due execution of this
Agreement or any other Loan Documents, (b) be under any obligation to any Lender
to
53
ascertain or to inquire as to the performance or observance or any of the terms,
covenants or conditions hereof or thereof on the part of Borrower or any other
Company, or the financial condition of Borrower or any other Company, or (c) be
liable to any of the Companies for consequential damages resulting from any
breach of contract, tort or other wrong in connection with the negotiation,
documentation, administration or collection of the Loans or Letters of Credit or
any of the Loan Documents.
Section 9.2. Note Holders. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with it,
signed by such payee and in form satisfactory to Agent.
Section 9.3. Consultation With Counsel. Agent may consult with legal
counsel selected by it and shall not be liable for any action taken or suffered
in good faith by it in accordance with the opinion of such counsel.
Section 9.4. Documents. Agent shall not be under any duty to examine
into or pass upon the validity, effectiveness, genuineness or value of any Loan
Document or any other Related Writing furnished pursuant hereto or in connection
herewith or the value of any collateral obtained hereunder, and Agent shall be
entitled to assume that the same are valid, effective and genuine and what they
purport to be.
Section 9.5. Agent and Affiliates. With respect to the Loans, Agent
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not Agent, and Agent and its affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with any Company or any Affiliate.
Section 9.6. Knowledge of Default. It is expressly understood and
agreed that Agent shall be entitled to assume that no Default or Event of
Default has occurred, unless Agent has been notified by a Lender in writing that
such Lender believes that a Default or Event of Default has occurred and is
continuing and specifying the nature thereof or has been notified by Borrower
pursuant to Section 5.14 hereof.
Section 9.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 9.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it by,
or with respect to taking or refraining from taking any action or actions that
it may be able to take under or in respect of, this Agreement. Agent shall incur
no liability under or in respect of this Agreement by acting upon any notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable in the premises.
Section 9.8. Notice of Default. In the event that Agent shall have
acquired actual knowledge of any Default or Event of Default, Agent shall
promptly notify the Lenders and shall take such action and assert such rights
under this Agreement as the Required Lenders shall direct
54
and Agent shall inform the other Lenders in writing of the action taken. Agent
may take such action and assert such rights as it deems to be advisable, in its
discretion, for the protection of the interests of the holders of the Debt.
Section 9.9. Indemnification of Agent. The Lenders agree to indemnify
Agent (to the extent not reimbursed by Borrower) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against Agent in its
capacity as agent in any way relating to or arising out of this Agreement or any
Loan Document or any action taken or omitted by Agent with respect to this
Agreement or any Loan Document, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees) or disbursements
resulting from Agent's gross negligence or willful misconduct as determined by a
court of competent jurisdiction, or from any action taken or omitted by Agent in
any capacity other than as agent under this Agreement or any other Loan
Document.
Section 9.10. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to Borrower and the
Lenders. If Agent shall resign under this Agreement, then either (a) the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders (with the consent of Borrower so long as an Event of Default has not
occurred and which consent shall not be unreasonably withheld), or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following Agent's notice to the Lenders of its resignation, then
Agent shall appoint a successor agent that shall serve as agent until such time
as the Required Lenders appoint a successor agent. Upon its appointment, such
successor agent shall succeed to the rights, powers and duties as agent, and the
term "Agent" shall mean such successor effective upon its appointment, and the
former agent's rights, powers and duties as agent shall be terminated without
any other or further act or deed on the part of such former agent or any of the
parties to this Agreement.
Section 9.11. Other Agents. As used in this Agreement, the term "Agent"
shall only include Agent. The Documentation Agent shall not have any rights,
obligations or responsibilities hereunder in such capacity.
ARTICLE X. MISCELLANEOUS
Section 10.1. Lenders' Independent Investigation. Each Lender, by its
signature to this Agreement, acknowledges and agrees that Agent has made no
representation or warranty, express or implied, with respect to the
creditworthiness, financial condition, or any other condition of any Company or
with respect to the statements contained in any information memorandum furnished
in connection herewith or in any other oral or written communication between
Agent and such Lender. Each Lender represents that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Companies in connection with the
extension of credit hereunder, and agrees that Agent has no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any
55
credit or other information with respect thereto (other than such notices as may
be expressly required to be given by Agent to the Lenders hereunder), whether
coming into its possession before the first Credit Event hereunder or at any
time or times thereafter. Each Lender further represents that it has reviewed
each of the Loan Documents.
Section 10.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Lender or the holder of any Note in exercising
any right, power or remedy hereunder or under any of the Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder or under any of the
Loan Documents. The remedies herein provided are cumulative and in addition to
any other rights, powers or privileges held by operation of law, by contract or
otherwise.
Section 10.3. Amendments, Consents. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Anything herein to the contrary notwithstanding, unanimous consent of the
Lenders shall be required with respect to (a) any increase in the Commitment
hereunder (except as specified in Section 2.11(b) hereof), (b) the extension of
maturity of the Notes, the payment date of interest or principal thereunder, or
the payment of commitment or other fees or amounts payable hereunder, (c) any
reduction in the rate of interest on the Notes (provided that the institution of
the Default Rate and a subsequent removal of the Default Rate shall not
constitute a decrease in interest rate of this Section), or in any amount of
principal or interest due on any Note, or the payment of commitment or other
fees hereunder or any change in the manner of pro rata application of any
payments made by Borrower to the Lenders hereunder, (d) any change in any
percentage voting requirement, voting rights, or the Required Lenders definition
in this Agreement, (e) the release of any Guarantor of Payment, or (f) any
amendment to this Section 10.3 or Section 8.5 hereof. Notice of amendments or
consents ratified by the Lenders hereunder shall be forwarded by Agent to all of
the Lenders. Each Lender or other holder of a Note shall be bound by any
amendment, waiver or consent obtained as authorized by this Section, regardless
of its failure to agree thereto.
Section 10.4. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Lender, mailed or delivered to it,
addressed to the address of such Lender specified on the signature pages of this
Agreement, or, as to each party, at such other address as shall be designated by
such party in a written notice to each of the other parties. All notices,
statements, requests, demands and other communications provided for hereunder
shall be given by overnight delivery or first class mail with postage prepaid by
registered or certified mail, addressed as aforesaid, or sent by facsimile with
telephonic confirmation of receipt, except that all notices hereunder shall not
be effective until received.
Section 10.5. Costs, Expenses and Taxes. Borrower agrees to pay on
demand all reasonable costs and expenses of Agent, including, but not limited
to, (a) syndication,
56
administration, travel and out-of-pocket expenses, including but not limited to
attorneys' fees and expenses, of Agent in connection with the preparation,
negotiation and closing of the Loan Documents and the administration of the Loan
Documents, the collection and disbursement of all funds hereunder and the other
instruments and documents to be delivered hereunder, (b) extraordinary expenses
of Agent in connection with the administration of the Loan Documents and the
other instruments and documents to be delivered hereunder, and (c) the
reasonable fees and out-of-pocket expenses of special counsel for Agent, with
respect to the foregoing, and of local counsel, if any, who may be retained by
said special counsel with respect thereto. Borrower also agrees to pay on demand
all costs and expenses of Agent and the Lenders, including reasonable attorneys'
fees, in connection with the restructuring or enforcement of the Debt, this
Agreement or any Related Writing. In addition, Borrower shall pay any and all
stamp and other taxes and fees payable or determined to be payable in connection
with the execution and delivery of the Loan Documents, and the other instruments
and documents to be delivered hereunder, and agrees to hold Agent and each
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or failure to pay such taxes or fees.
Section 10.6. Indemnification. Borrower agrees to defend, indemnify and
hold harmless Agent and the Lenders (and their respective affiliates, officers,
directors, attorneys, agents and employees) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees) or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against Agent
or any Lender in connection with any investigative, administrative or judicial
proceeding (whether or not such Lender or Agent shall be designated a party
thereto) or any other claim by any Person relating to or arising out of any Loan
Document or any actual or proposed use of proceeds of the Loans or any of the
Debt, or any activities of any Company or its Affiliates; provided that no
Lender nor Agent shall have the right to be indemnified under this Section for
its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction. All obligations provided for in this Section 10.6 shall
survive any termination of this Agreement.
Section 10.7. Obligations Several; No Fiduciary Obligations. The
obligations of the Lenders hereunder are several and not joint. Nothing
contained in this Agreement and no action taken by Agent or the Lenders pursuant
hereto shall be deemed to constitute Agent or the Lenders a partnership,
association, joint venture or other entity. No default by any Lender hereunder
shall excuse the other Lenders from any obligation under this Agreement; but no
Lender shall have or acquire any additional obligation of any kind by reason of
such default. The relationship between Borrower and the Lenders with respect to
the Loan Documents and the Related Writings is and shall be solely that of
debtor and creditors, respectively, and neither Agent nor any Lender shall have
any fiduciary obligation toward any Credit Party with respect to any such
documents or the transactions contemplated thereby.
Section 10.8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts and by facsimile signature, each of which counterparts when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
57
Section 10.9. Binding Effect; Borrower's Assignment. This Agreement
shall become effective when it shall have been executed by Borrower, Agent and
each Lender and thereafter shall be binding upon and inure to the benefit of
Borrower, Agent and each of the Lenders and their respective successors and
assigns, except that Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Lenders.
Section 10.10. Lender Assignments.
(a) Assignments of Commitments. Each Lender shall have the right
at any time or times to assign to an Eligible Transferee (other than to a Lender
that shall not be in compliance with this Agreement), without recourse, all or a
percentage of all of the following: (i) such Lender's Commitment, (ii) all Loans
made by that Lender, (iii) such Lender's Notes, and (iv) such Lender's interest
in any Letter of Credit or Swing Loan, and any participation purchased pursuant
to Section 2.3, 2.4 or 8.5 hereof.
(b) Prior Consent. No assignment may be consummated pursuant to
this Section 10.10 without the prior written consent of Borrower and Agent
(other than an assignment by any Lender to another Lender or to any affiliate of
such Lender which affiliate is an Eligible Transferee and either wholly-owned by
a Lender or is wholly-owned by a Person that wholly owns, either directly or
indirectly, such Lender), which consent of Borrower and Agent shall not be
unreasonably withheld; provided, however, that, Borrower's consent shall not be
required if, at the time of the proposed assignment, any Default or Event of
Default shall then exist. Anything herein to the contrary notwithstanding, any
Lender may at any time make a collateral assignment of all or any portion of its
rights under the Loan Documents to a Federal Reserve Bank, and no such
assignment shall release such assigning Lender from its obligations hereunder.
(c) Minimum Amount. Each such assignment shall be in a minimum
amount of the lesser of Five Million Dollars ($5,000,000) of the assignor's
Commitment and interest herein or the entire amount of the assignor's Commitment
and interest herein.
(d) Assignment Fee. Unless the assignment shall be to an affiliate
of the assignor or the assignment shall be due to merger of the assignor or for
regulatory purposes, either the assignor or the assignee shall remit to Agent,
for its own account, an administrative fee of Three Thousand Five Hundred
Dollars ($3,500).
(e) Assignment Agreement. Unless the assignment shall be due to
merger of the assignor or a collateral assignment for regulatory purposes, the
assignor shall (i) cause the assignee to execute and deliver to Borrower and
Agent an Assignment Agreement, and (ii) execute and deliver, or cause the
assignee to execute and deliver, as the case may be, to Agent such additional
amendments, assurances and other writings as Agent may reasonably require.
(f) Non-U.S. Assignee. If the assignment is to be made to an
assignee that is organized under the laws of any jurisdiction other than the
United States or any state thereof, the assignor Lender shall cause such
assignee, at least five Business Days prior to the effective date
58
of such assignment, (i) to represent to the assignor Lender (for the benefit of
the assignor Lender, Agent and Borrower) that under applicable law and treaties
no taxes will be required to be withheld by Agent, Borrower or the assignor with
respect to any payments to be made to such assignee in respect of the Loans
hereunder, (ii) to furnish to the assignor Lender (and, in the case of any
assignee registered in the Register (as defined below), Agent and Borrower)
either (A) U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN or (B) United States Internal Revenue Service Form W-8 or
W-9, as applicable (wherein such assignee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder),
and (iii) to agree (for the benefit of the assignor, Agent and Borrower) to
provide to the assignor Lender (and, in the case of any assignee registered in
the Register, to Agent and Borrower) a new Form W-8ECI or Form W-8BEN or Form
W-8 or W-9, as applicable, upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with applicable U.S. laws
and regulations and amendments duly executed and completed by such assignee, and
to comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
(g) Deliveries by Borrower. Upon satisfaction of all applicable
requirements specified in subsections (a) through (f) above, Borrower shall
execute and deliver (i) to Agent, the assignor and the assignee, any consent or
release (of all or a portion of the obligations of the assignor) required to be
delivered by Borrower in connection with the Assignment Agreement, and (ii) to
the assignee and the assignor, if applicable, an appropriate Note or Notes.
After delivery of the new Note or Notes, the assignor's Note or Notes being
replaced shall be returned to Borrower marked "replaced".
(h) Effect of Assignment. Upon satisfaction of all applicable
requirements of set forth in subsections (a) through (g) above, and any other
condition contained in this Section 10.10, (i) the assignee shall become and
thereafter be deemed to be a "Lender" for the purposes of this Agreement, (ii)
the assignor shall be released from its obligations hereunder to the extent that
its interest has been assigned, (iii) in the event that the assignor's entire
interest has been assigned, the assignor shall cease to be and thereafter shall
no longer be deemed to be a "Lender" and (iv) the signature pages hereto and
Schedule 1 hereto shall be automatically amended, without further action, to
reflect the result of any such assignment.
(i) Agent to Maintain Register. Agent shall maintain at the
address for notices referred to in Section 10.4 hereof a copy of each Assignment
Agreement delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and Borrower,
Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
Section 10.11. Sale of Participations. Any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable law,
at any time sell participations to one or more Eligible Transferees (each a
"Participant") in all or a portion of its
59
rights or obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of the Commitment and the Loans
and participations owing to it and the Note held by it); provided, that:
(a) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the parties hereto shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and each of the other Loan Documents;
(d) such Participant shall be bound by the provisions of Section
8.5 hereof, and the Lender selling such participation shall obtain from such
Participant a written confirmation of its agreement to be so bound; and
(e) no Participant (unless such Participant is itself a Lender)
shall be entitled to require such Lender to take or refrain from taking action
under this Agreement or under any other Loan Document, except that such Lender
may agree with such Participant that such Lender will not, without such
Participant's consent, take action of the type described as follows:
(i) increase the portion of the participation amount of
any Participant over the amount thereof then in effect, or extend the
Commitment Period, without the written consent of each Participant
affected thereby; or
(ii) reduce the principal amount of or extend the time for
any payment of principal of any Loan, or reduce the rate of interest or
extend the time for payment of interest on any Loan, or reduce the
commitment fee, without the written consent of each Participant
affected thereby.
Borrower agrees that any Lender that sells participations pursuant to this
Section shall still be entitled to the benefits of Article III hereof,
notwithstanding any such transfer; provided, however, that the obligations of
Borrower shall not increase as a result of such transfer and Borrower shall have
no obligation to any Participant.
Section 10.12. Severability of Provisions; Captions; Attachments. Any
provision of this Agreement that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.
60
Section 10.13. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all of the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
Section 10.14. Legal Representation of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
Section 10.15. Currency.
(a) Currency Equivalent Generally. For the purposes of making
valuations or computations under this Agreement (but not for the purposes of the
preparation of any financial statements delivered pursuant hereto), unless
expressly provided otherwise, where a reference is made to a dollar amount the
amount is to be considered as the amount in Dollars and, therefor, each other
currency shall be converted into the Dollar Equivalent.
(b) Judgment Currency. If Agent, on behalf of the Lenders, obtains
a judgment or judgments against any Credit Party in an Alternate Currency, the
obligations of such Credit Party in respect of any sum adjudged to be due to
Agent or the Lenders hereunder or under the Notes (the "Judgment Amount") shall
be discharged only to the extent that, on the Business Day following receipt by
Agent of the Judgment Amount in the Alternate Currency, Agent, in accordance
with normal banking procedures, purchases Dollars with the Judgment Amount in
such Alternate Currency. If the amount of Dollars so purchased is less than the
amount of Dollars that could have been purchased with the Judgment Amount on the
date or dates the Judgment Amount (excluding the portion of the Judgment Amount
that has accrued as a result of the failure of such Credit Party to pay the sum
originally due hereunder or under the Notes when it was originally due and owing
to Agent or the Lenders hereunder or under the Notes) was originally due and
owing to Agent or the Lenders hereunder or under the Notes (the "Original Due
Date") (the "Loss"), such Credit Party agrees as a separate obligation and
notwithstanding any such judgment, to indemnify Agent or such Lender, as the
case may be, against the Loss, and if the amount of Dollars so purchased exceeds
the amount of Dollars that could have been purchased with the Judgment Amount on
the Original Due Date, Agent or such Lender agrees to remit such excess to such
Credit Party.
Section 10.16. Governing Law; Submission to Jurisdiction. This
Agreement, each of the Notes and any Related Writing shall be governed by and
construed in accordance with the laws of the State of Ohio and the respective
rights and obligations of Borrower, Agent, and the Lenders shall be governed by
Ohio law, without regard to principles of conflict of laws. Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of any Ohio state or
federal court sitting in Cleveland, Ohio, over any action or proceeding arising
out of or relating to this Agreement, the Debt or any Related Writing, and
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio
61
state or federal court. Borrower, on behalf of itself and its Subsidiaries,
hereby irrevocably waives, to the fullest extent permitted by law, any objection
it may now or hereafter have to the laying of venue in any action or proceeding
in any such court as well as any right it may now or hereafter have to remove
such action or proceeding, once commenced, to another court on the grounds of
FORUM NON CONVENIENS or otherwise. Borrower agrees that a final, nonappealable
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
[Remainder of page left intentionally blank]
62
Section 10.17. Jury Trial Waiver. TO THE EXTENT PERMITTED BY LAW,
BORROWER, AGENT AND EACH LENDER WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWER, AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed and delivered this Credit
Agreement as of the date first set forth above.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ENTERPRISES, INCORPORATED
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Group
Executive,
Senior Vice President - Finance
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ NATIONAL ASSOCIATION,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ as Agent and as a Lender
Attn: Institutional Banking
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ BNP PARIBAS,
Houston, Texas 7002 as Documentation Agent and as a
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Signature Page
1 of 1 of the Credit Agreement
SCHEDULE 1
REVOLVING
CREDIT
COMMITMENT COMMITMENT
LENDERS PERCENTAGE AMOUNT MAXIMUM AMOUNT
-----------------------------------------------------------------------------
KeyBank National Association 60% $ 30,000,000 $ 30,000,000
-----------------------------------------------------------------------------
BNP Paribas 40% $ 20,000,000 $ 20,000,000
-----------------------------------------------------------------------------
Total Commitment Amount 100% $ 50,000,000 $ 50,000,000
-----------------------------------------------------------------------------
S-1
SCHEDULE 2
GUARANTORS OF PAYMENT
Financial Services Worldwide, LLC, a Florida limited liability company
McQueen International Incorporated, a California corporation
▇▇▇▇▇ E-Commerce, Incorporated, a Delaware corporation
▇▇▇▇▇ Enterprises - South Africa, Inc., a Florida corporation
Sykes Global Holdings, LLC, a Delaware limited liability company
▇▇▇▇▇ ▇▇ Holdings, LLC, a Delaware limited liability company
▇▇▇▇▇ Realty, Inc., a Florida corporation
E-1
SCHEDULE 3
PLEDGED SECURITIES
Pledged
Name of Subsidiary Jurisdiction Pledgor Percentage
----------------------------------- ------------ ------------------------------- ----------
McQueen International Limited Scotland ▇▇▇▇▇ Enterprises, Incorporated 65%
▇▇▇▇▇ Enterprises Incorporated S.L. Spain ▇▇▇▇▇ Enterprises, Incorporated 65%
▇▇▇▇▇ Enterprises of Canada Canada ▇▇▇▇▇ Enterprises, Incorporated 65%
▇▇▇▇▇ Latin America, ▇.▇. ▇▇▇▇▇ Rica ▇▇▇▇▇ Enterprises, Incorporated 65%
E-2