EXHIBIT 4(b)
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of September 12, 2000
among
▇▇▇▇ CORPORATION,
▇▇▇▇ GRAPHICS EUROPE LIMITED
and
▇▇▇▇ GRAPHICS EUROPE B.V.,
as Borrowers,
THE SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
BANK OF AMERICA, N.A.,
as Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.......................................................................................... 1
1.1 Definitions........................................................................................ 1
1.2 Computation of Time Periods........................................................................28
1.3 Accounting Terms...................................................................................28
SECTION 2 CREDIT FACILITIES....................................................................................28
2.1 Revolving Loans....................................................................................28
2.2 Domestic Letter of Credit Subfacility..............................................................30
2.3 Competitive Loan Subfacility.......................................................................35
2.4 Swingline Loan Subfacility.........................................................................38
2.5 Foreign Currency Loan Subfacility..................................................................40
2.6 Foreign Letter of Credit Subfacility...............................................................43
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.......................................................49
3.1 Default Rate.......................................................................................49
3.2 Extension and Conversion...........................................................................49
3.3 Prepayments........................................................................................50
3.4 Termination and Reduction of Revolving Committed Amount............................................52
3.5 Fees...............................................................................................53
3.6 Capital Adequacy...................................................................................54
3.7 Unavailability.....................................................................................54
3.8 Illegality.........................................................................................55
3.9 Requirements of Law................................................................................56
3.10 Taxes..............................................................................................57
3.11 Indemnity..........................................................................................60
3.12 Pro Rata Treatment.................................................................................60
3.13 Sharing of Payments................................................................................61
3.14 Payments, Computations, Etc........................................................................62
3.15 Mandatory Assignment...............................................................................64
SECTION 4 GUARANTY.............................................................................................64
4.1 The Guarantee......................................................................................64
4.2 Obligations Unconditional..........................................................................65
4.3 Reinstatement......................................................................................66
4.4 Certain Additional Waivers.........................................................................66
4.5 Remedies...........................................................................................66
4.6 Rights of Contribution.............................................................................66
4.7 Continuing Guarantee...............................................................................67
SECTION 5 CONDITIONS...........................................................................................67
5.1 Closing Conditions.................................................................................67
5.2 Conditions to all Extensions of Credit.............................................................69
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SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................70
6.1 Financial Condition.................................................................................70
6.2 No Change...........................................................................................71
6.3 Organization; Existence; Compliance with Law........................................................71
6.4 Power; Authorization; Enforceable Obligations.......................................................71
6.5 No Legal Bar........................................................................................72
6.6 No Material Litigation..............................................................................72
6.7 No Default..........................................................................................72
6.8 Ownership of Property; Liens........................................................................72
6.9 Intellectual Property...............................................................................72
6.10 No Burdensome Restrictions..........................................................................73
6.11 Taxes...............................................................................................73
6.12 ERISA...............................................................................................73
6.13 Governmental Regulations, Etc.......................................................................75
6.14 Subsidiaries........................................................................................76
6.15 Purpose of Loans and Letters of Credit..............................................................76
6.16 Environmental Matters...............................................................................76
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................77
7.1 Information Covenants...............................................................................77
7.2 Preservation of Existence and Franchises............................................................80
7.3 Books and Records...................................................................................80
7.4 Compliance with Law.................................................................................80
7.5 Payment of Taxes and Other Indebtedness.............................................................80
7.6 Insurance...........................................................................................81
7.7 Maintenance of Property.............................................................................81
7.8 Performance of Obligations..........................................................................81
7.9 Use of Proceeds.....................................................................................81
7.10 Audits/Inspections..................................................................................81
7.11 Financial Covenants.................................................................................81
7.12 Additional Credit Parties...........................................................................82
7.13 Ownership of Subsidiaries...........................................................................82
SECTION 8 NEGATIVE COVENANTS....................................................................................82
8.1 Indebtedness........................................................................................83
8.2 Liens...............................................................................................84
8.3 Nature of Business..................................................................................84
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc..............................................84
8.5 Advances, Investments, Loans, etc...................................................................85
8.6 Restricted Payments.................................................................................85
8.7 Prepayments of Indebtedness, etc....................................................................86
8.8 Transactions with Affiliates........................................................................86
8.9 Fiscal Year.........................................................................................86
8.10 Limitation on Restrictions on Subsidiary Dividends and Other Distributions, etc.....................86
8.11 Issuance and Sale of Subsidiary Stock...............................................................87
8.12 Sale Leasebacks.....................................................................................87
8.13 No Further Negative Pledges.........................................................................87
8.14 Operating Lease Obligations.........................................................................87
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SECTION 9 EVENTS OF DEFAULT.....................................................................................88
9.1 Events of Default...................................................................................88
9.2 Acceleration; Remedies..............................................................................90
SECTION 10 AGENCY PROVISIONS....................................................................................91
10.1 Appointment.........................................................................................91
10.2 Delegation of Duties................................................................................92
10.3 Exculpatory Provisions..............................................................................92
10.4 Reliance on Communications..........................................................................93
10.5 Notice of Default...................................................................................93
10.6 Non-Reliance on Agent and Other Lenders.............................................................93
10.7 Indemnification.....................................................................................94
10.8 Agent in its Individual Capacity....................................................................94
10.9 Successor Agent.....................................................................................94
SECTION 11 MISCELLANEOUS........................................................................................95
11.1 Notices.............................................................................................95
11.2 Right of Set-Off....................................................................................96
11.3 Benefit of Agreement................................................................................97
11.4 No Waiver; Remedies Cumulative......................................................................99
11.5 Payment of Expenses, etc...........................................................................100
11.6 Amendments, Waivers and Consents...................................................................100
11.7 Counterparts.......................................................................................101
11.8 Headings...........................................................................................101
11.9 Survival of Indemnification........................................................................101
11.10 Governing Law; Submission to Jurisdiction; Venue; Arbitration......................................101
11.11 Severability.......................................................................................103
11.12 Entirety...........................................................................................103
11.13 Survival of Representations and Warranties.........................................................103
11.14 Binding Effect; Termination of Credit Agreement; etc...............................................103
11.15 Judgment Currency..................................................................................103
11.16 Confidentiality....................................................................................104
11.17 Source of Funds....................................................................................105
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SCHEDULES
Schedule 1.1A Existing Letters of Credit
Schedule 1.1B Calculation of MLA Cost
Schedule 1.1C Form of Notice of Borrowing
Schedule 1.1D Form of Notice of Extension/Conversion
Schedule 1.1E Investments
Schedule 1.1F Liens
Schedule 2.1(a) Lenders
Schedule 2.3(b)-1 Form of Competitive Bid Request
Schedule 2.3(b)-2 Form of Notice of Receipt of Competitive Bid Request
Schedule 2.3(c) Form of Competitive Bid
Schedule 2.3(e) Form of Competitive Bid Accept/Reject Letter
Schedule 6.9 Intellectual Property
Schedule 6.12 ERISA Disclosures
Schedule 6.14 Subsidiaries
Schedule 6.16 Environmental Disclosures
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 7.12 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 11.3 Form of Assignment and Acceptance
- iv -
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 12,
2000 (the "Credit Agreement"), is by and among ▇▇▇▇ CORPORATION, a Pennsylvania
corporation ("▇▇▇▇"), ▇▇▇▇ GRAPHICS EUROPE LIMITED, a U.K. corporation ("▇▇▇▇
Europe), ▇▇▇▇ GRAPHICS EUROPE B.V., a Netherlands corporation ("▇▇▇▇ BV"; each
of ▇▇▇▇, ▇▇▇▇ Europe and ▇▇▇▇ BV hereinafter may be referred to as a "Borrower"
or, collectively, as the "Borrowers"), the subsidiaries of ▇▇▇▇ identified on
the signature pages hereto and such other subsidiaries of ▇▇▇▇ as may from time
to time become a party hereto (the "Guarantors"), the several lenders identified
on the signature pages hereto and such other lenders as may from time to time
become a party hereto (the "Lenders") and BANK OF AMERICA, N.A., as agent for
the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrowers have requested that the Lenders provide a
$50,000,000 revolving credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrowers on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder Agreement.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the equity
interest in such Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agent" shall have the meaning assigned to such term in the
heading hereof.
"Agent's Fee Letter" means that certain letter agreement,
dated as of August 21, 2000, between the Agent and ▇▇▇▇, as amended,
modified, supplemented or replaced from time to time.
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Alternative Assets" means, in connection with any proposed
Asset Sale pursuant to the terms of Section 8.4(b)(iv)(B), assets
(including stock or other equity interests acquired in a transaction
contemplated by and permitted under Section 8.4(c) and whether new,
additional or replacement assets but exclusive of assets acquired in
the course of regular upkeep and maintenance) which are similar in
nature, purpose or business line to other assets owned or leased by
▇▇▇▇ and/or its Subsidiaries prior to or at the time of the acquisition
of such assets and useful in the conduct of the business of ▇▇▇▇ and
its Subsidiaries as permitted to be conducted pursuant to Section 8.3.
"Applicable Margin" means, for purposes of calculating the
applicable interest rate for any day for any Eurodollar Loan or the
applicable rate of the Unused Fee for any day for purposes of Section
3.5(a) or the applicable rate of the Standby Letter of Credit Fee for
any day for purposes of Section 3.5(b)(i), the appropriate applicable
margin corresponding to the Consolidated Leverage Ratio in effect as of
the most recent Calculation Date:
===================================================================================================================
Applicable Applicable
Consolidated Margin for Applicable Margin for
Pricing Leverage Eurodollar Margin for Standby Letter
Level Ratio Loans Unused Fee of Credit Fee
--------------------------------------------------------------------------------------------------------------------
I Equal to or less 55.0 bps 15.0 bps 55.0 bps
than 1.75 to 1.00
--------------------------------------------------------------------------------------------------------------------
II Greater than 1.75 65.0 bps 20.0 bps 65.0 bps
to 1.00 but equal
to or less than
2.25 to 1.00
--------------------------------------------------------------------------------------------------------------------
III Greater than 2.25 80.0 bps 25.0 bps 80.0 bps
to 1.00 but equal
to or less than
2.75 to 1.00
--------------------------------------------------------------------------------------------------------------------
IV Greater than 2.75 95.0 bps 30.0 bps 95.0 bps
to 1.00
====================================================================================================================
Determination of the appropriate Applicable Margins based on the
Consolidated Leverage Ratio shall be made as of each Calculation Date.
The Consolidated Leverage Ratio in effect as of a Calculation Date
shall establish the Applicable Margins that shall be effective as of
the date designated by the Agent as the Applicable Margin Change Date.
The Agent shall determine the Applicable Margins as of each Calculation
Date and shall promptly notify the Borrowers and the Lenders of the
Applicable Margins so determined and of the Applicable Margin Change
Date. Such determinations by the Agent of the Applicable Margins shall
be conclusive absent demonstrable error.
2
"Applicable Margin Change Date" means, with respect to any
Calculation Date, a date designated by the Agent that is not more than
five (5) Business Days after the date pursuant to the terms of Section
7.1(a) or (b), as applicable, that the Required Financial Information
for such Calculation Date is required to be delivered to the Agent and
the Lenders.
"Application Period" shall have the meaning assigned to such
term in Section 8.4(b)(iv)(B)(1).
"Asset Sale" means any sale, lease, transfer or other
disposition (including any such transaction effected by way of merger,
amalgamation or consolidation) by ▇▇▇▇ or any of its Subsidiaries
subsequent to the Closing Date of any asset (including stock in
Subsidiaries of ▇▇▇▇), including without limitation any sale leaseback
transaction (whether or not involving a Capital Lease), but excluding
(a) the sale of inventory in the ordinary course of business for fair
consideration, (b) the sale or disposition of machinery and equipment
no longer used or useful in the conduct of such Person's business, (c)
the sale of any asset having a book value of less than $100,000 and (d)
any Equity Transaction.
"Attributed Principal Amount" means, on any day, with respect
to any Permitted Receivables Financing entered into by ▇▇▇▇, the
aggregate amount (with respect to any such transaction, the "Invested
Amount") paid to, or borrowed by, such Person as of such date under
such Permitted Receivables Financing, minus the aggregate amount
received by the applicable Receivables Financier and applied to the
reduction of the Invested Amount under such Permitted Receivables
Financing.
"Available EMU Currency" means Deutsche Marks, Guilders,
Italian Lira and French Francs.
"Available Foreign Currency" means euro, any National Currency
Unit, Pounds Sterling, French Francs, Deutsche Marks, Italian Lira and
Guilders.
"Available Reinvestment Amount" means, at any time, the
aggregate amount of the Excess Sale Proceeds of all asset sales made
pursuant to Section 8.4(b)(iv) with respect to which the related
Application Period has not yet expired, provided that such Excess Sale
Proceeds (i) have not been applied to the purchase, acquisition or
construction of Alternative Assets as contemplated by Section
8.4(b)(iv)(B)(1) and (ii) have been applied to prepay the Loans as
contemplated by Section 8.4(b)(iv)(B)(2) and Section 3.3(b)(iii).
"Bank of America" means Bank of America, N.A. and its
successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
3
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or after the Closing Date in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property or ordering the winding up or liquidation of its affairs; or
(ii) there shall be commenced against such Person an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
after the Closing Date in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such
Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or after the Closing Date in
effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"▇▇▇▇▇▇ Family" means the wife, children and descendants of
such children of the late ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, their respective
spouses and estates, any trusts primarily for the benefit of any of the
foregoing and the administrators, executors and trustees of any such
estates or trusts.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms of the Credit Agreement, the Base Rate
shall be determined without regard to clause (a) of the first sentence
of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a change
in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds
Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" or "Borrowers" means the Persons identified as such
in the heading hereof, together with any successors and permitted
assigns.
4
"Borrowers' Obligations" means, collectively, the ▇▇▇▇
Obligations, the ▇▇▇▇ Europe Obligations and the ▇▇▇▇ BV Obligations.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina are
authorized or required by law to close, except that, (i) when used in
connection with a Revolving Loan that is a Eurodollar Loan, such day
shall also be a day on which dealings between banks are carried on in
U.S. dollar deposits in London, England and New York, New York and (ii)
when used in connection with a Foreign Currency Loan or a Foreign
Letter of Credit, such day shall also be a day on which dealings in the
applicable Available Foreign Currency are being carried on between
banks in London, England with respect to Pounds Sterling and the
interbank eurocurrency market with respect to other Available Foreign
Currencies.
"Calculation Date" means the last day of each fiscal quarter
of ▇▇▇▇.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP is accounted for as a capital lease on
the balance sheet of that Person.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is
at least P-1 or the equivalent thereof (any such bank being an
"Approved Lender"), in each case with maturities of not more than 270
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Lender (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed
by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by ▇▇▇▇▇'▇
and maturing within six months of the date of acquisition, (d)
repurchase agreements entered into by a Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount
of the repurchase obligations, (e) obligations of any State of the
United States or any political subdivision thereof, the interest with
respect to which is exempt from federal income taxation under Section
103 of the Code, having a long term rating of at least AA-3 or AA- by
▇▇▇▇▇'▇ or S&P, respectively, and maturing within three years from the
date of acquisition thereof, (f) Investments in municipal auction
preferred stock (i) rated AAA (or the equivalent thereof) or better by
S&P or AAA (or the equivalent thereof) or better by ▇▇▇▇▇'▇ and (ii)
with dividends that reset at least once every 365 days and (g)
5
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $100,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons acting in
concert, other than members of the ▇▇▇▇▇▇ Family, shall have acquired
beneficial ownership, directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of, control over, Voting Stock of ▇▇▇▇ (or other
securities convertible into such Voting Stock) representing 35% or more
of the combined voting power of all Voting Stock of ▇▇▇▇, or (ii)
during any period of up to 24 consecutive months, commencing after the
Closing Date, individuals who at the beginning of such 24 month period
were directors of ▇▇▇▇ (together with any new director whose election
by ▇▇▇▇'▇ Board of Directors or whose nomination for election by ▇▇▇▇'▇
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the directors of ▇▇▇▇ then in office. As used herein,
"beneficial ownership" shall have the meaning provided in Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
References to sections of the Code shall be construed also to refer to
any successor sections.
"Commitment" means (i) with respect to each Lender, the
Revolving Commitment of such Lender, (ii) with respect to the Swingline
Lender, the Swingline Commitment and (iii) with respect to the Issuing
Lender, the LOC Commitment.
"Commitment Percentage" means, for any Lender, the percentage
identified as its Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to the terms of Section 2.3.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.3, the fixed
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by ▇▇▇▇ for
Competitive Bids in accordance with the provisions of Section 2.3(b).
6
"Competitive Bid Request Fee" shall have the meaning assigned
to such term in Section 3.5(d).
"Competitive Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.3.
"Competitive Loan Lenders" means, at any time, those Lenders
which have Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning
assigned to such term in Section 2.3(a).
"Consolidated Capital Expenditures" means, for any period, all
capital expenditures (exclusive of expenditures for acquisitions
permitted pursuant to the terms of Section 8.4(a) or (c)) of ▇▇▇▇ and
its consolidated Subsidiaries for such period, as determined in
accordance with GAAP.
"Consolidated EBIT" means, for any period, the sum of (i)
Consolidated Net Income for such period but excluding (A) non-cash
charges associated with exercise of stock options, (B) unusual items,
including but not limited to refinancing, restructuring or
reorganizational charges, (C) effects of changes in accounting
principles and (D) extraordinary items, plus (ii) an amount which, in
the determination of Consolidated Net Income for such period, has been
deducted for (A) Consolidated Interest Expense for such period and (B)
total Federal, state, local and foreign income taxes of ▇▇▇▇ and its
consolidated Subsidiaries for such period.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated EBIT for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been
deducted for consolidated depreciation and amortization expense of ▇▇▇▇
and its consolidated Subsidiaries for such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any
Calculation Date, the ratio of (i) Consolidated EBITDA for the
four-quarter period ended as of such Calculation Date minus
Consolidated Capital Expenditures for the four-quarter period ended as
of such Calculation Date minus Restricted Payments (other than
Restricted Payments made pursuant to clause (iv) of Section 8.6) by
▇▇▇▇ and its consolidated Subsidiaries for the four-quarter period
ended as of such Calculation Date, to (ii) Consolidated Interest
Expense for the four-quarter period ended as of such Calculation Date
plus Consolidated Scheduled Funded Indebtedness Payments for the
four-quarter period ended as of such Calculation Date.
"Consolidated Funded Indebtedness" means, at any time, the
outstanding principal amount of all Funded Indebtedness, without
duplication, of ▇▇▇▇ and its consolidated Subsidiaries at such time.
7
"Consolidated Interest Expense" means, for any period, all
interest expense of ▇▇▇▇ and its consolidated Subsidiaries for such
period, as determined in accordance with GAAP but including in any
event all imputed interest, whether in the form of "yield", "discount"
or other similar item, that accrues in respect of the Attributed
Principal Amount of any Permitted Receivables Financing.
"Consolidated Leverage Ratio" means, as of any Calculation
Date, the ratio of (i) Consolidated Funded Indebtedness as of such
Calculation Date at such time to (ii) Consolidated EBITDA for the four
fiscal-quarter period ended as of such Calculation Date.
"Consolidated Net Income" means, for any period, net income
after taxes for such period for ▇▇▇▇ and its consolidated Subsidiaries,
as determined in accordance with GAAP.
"Consolidated Net Worth" means, as of any date, total
shareholders' equity of ▇▇▇▇ and its consolidated Subsidiaries as of
such date, as determined in accordance with GAAP; provided that the
effects of Restricted Payments made pursuant to clause (iv) of Section
8.6 shall be excluded from the calculation of Consolidated Net Worth.
"Consolidated Scheduled Funded Indebtedness Payments" means,
as of any Calculation Date, the scheduled payments of principal on
Funded Indebtedness for ▇▇▇▇ and its consolidated Subsidiaries for the
twelve month period ending on such Calculation Date.
"Consolidated Total Assets" means, at any time, all items
which, in accordance with GAAP, would be classified as assets on a
consolidated balance sheet of ▇▇▇▇ as of such time minus the amount of
Contingent Liabilities for Receivables at such time as determined in
accordance with GAAP.
"Contingent Liabilities for Receivables" means, at any time,
the aggregate amount of recourse (solely for defaulted or delinquent
receivables) against ▇▇▇▇ and all of its Subsidiaries under all
Permitted Receivables Financings.
"Controlled Group" means (i) the controlled group of
corporations as defined in Section 414(b) of the Code and the
applicable regulations thereunder, or (ii) the group of trades or
businesses under common control as defined in Section 414(c) of the
Code and the applicable regulations thereunder, of which ▇▇▇▇ or any of
its Subsidiaries is a member.
"Credit Documents" means a collective reference to the Credit
Agreement, the LOC Documents, each Joinder Agreement, the Agent's Fee
Letter and all other related agreements and documents issued or
delivered thereunder or pursuant thereto.
"Credit Party" means any of the Borrowers and the Guarantors.
8
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Determination Date" means each of:
(a) (i) the date three Business Days prior to the
date that any Foreign Currency Loan denominated in an
Available Foreign Currency others than Pounds
Sterling is made or any Foreign Letter of Credit
denominated in an Available Foreign Currency others
than Pounds Sterling is issued;
(ii) the date that any Foreign Currency Loan
denominated in Pounds Sterling is made or any Foreign
Letter of Credit denominated in Pounds Sterling is
issued;
(b) (i) the date three Business Days prior to the
date that any Foreign Currency Loan denominated in an
Available Foreign Currency others than Pounds
Sterling is continued from the current Interest
Period for such Foreign Currency Loan into a
subsequent Interest Period;
(ii) the date that any Foreign Currency Loan
denominated in Pounds Sterling is continued from the
current Interest Period for such Foreign Currency
Loan into a subsequent Interest Period;
(c) the date of any drawing under any Foreign Letter
of Credit;
(d) the last Business Day of each March, June,
September and December; and
(e) the date of any reduction of the Revolving
Committed Amount pursuant to the terms of Section
3.4(a).
"Deutsche Marks" means the lawful currency of the Federal
Republic of Germany.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount
of any Available Foreign Currency or an amount denominated in such
Available Foreign Currency, the Dollar Equivalent of such amount on the
applicable date contemplated in this Credit Agreement.
"Dollar Equivalent" means, on any date, with respect to an
amount denominated in an Available Foreign Currency, the amount of
Dollars into which the Agent could, in accordance with its practice
from time to time in the interbank foreign exchange market, convert
such amount of Available Foreign Currency at its spot rate of exchange
(inclusive of all reasonable related costs of conversion) applicable to
the relevant transaction at or about 11:00 A.M., London, England time,
on such date.
9
"Domestic Letter of Credit" means (i) any letter of credit
issued by the Issuing Lender for the account of ▇▇▇▇ in accordance with
the terms of Section 2.2 and (ii) each Existing Letter of Credit.
"Domestic LOC Committed Amount" shall have the meaning
assigned to such term in Section 2.2.
"Domestic LOC Obligations" means, at any time, the sum of (i)
the maximum amount which is, or at any time thereafter may become,
available to be drawn under Domestic Letters of Credit then
outstanding, assuming compliance with all requirements for drawings
referred to in such Domestic Letters of Credit plus (ii) the aggregate
amount of all drawings under Domestic Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the
laws of any State of the United States or the District of Columbia.
"Eligible Assignees" means (i) any Lender or any Affiliate or
Subsidiary of a Lender, and (ii) any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) reasonably acceptable to the Agent
and ▇▇▇▇.
"EMU" means the Economic and Monetary Union as contemplated in
the Treaty on European Union.
"EMU Legislation" means the legislative measures of the
European Council (including without limitation European Council
regulations) for the introduction of, changeover to or operation of the
euro.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Transaction" means any issuance by ▇▇▇▇ or any of its
Subsidiaries of (A) shares of its capital stock, other than the
issuance to ▇▇▇▇ of the capital stock of any of its Subsidiaries, (B)
any shares of its capital stock pursuant to the exercise of options or
warrants or (C) any shares of its capital stock pursuant to the
conversion of any debt securities to equity.
10
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party
within the meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes ▇▇▇▇ and which is treated as a single employer
under Sections 414(b), (c), (m), or (o) of the Code.
"euro" means the single currency of Participating Member
States of the European Community.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Interbank Offered Rate
Eurodollar Rate = -----------------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"European Community" means those European countries that are
signatories to the Treaty on European Union.
"Event of Default" means such term as defined in Section 9.1.
11
An "Excess Sale Event" shall be deemed to have occurred if
either (1) the net book value of all assets sold pursuant to the terms
of Section 8.4(b)(v) during the preceding twelve (12) months exceeds
15% of Consolidated Total Assets as determined at the end of the
immediately preceding fiscal year or (2) the net book value of all
assets sold pursuant to the terms of Section 8.4(b)(v) during the
preceding thirty-six (36) months exceeds 30% of Consolidated Total
Assets as determined at the end of the fiscal year nearest to the date
thirty-six (36) months prior to such sale of assets.
"Excess Sale Proceeds" means, with respect to any Excess Sale
Event, either (1) if an Excess Sale Event is deemed to occur pursuant
to clause (1) of the definition thereof, the amount by which the Net
Proceeds of all such asset sales made during the preceding twelve (12)
months exceeds 15% of Consolidated Total Assets as determined at the
end of the immediately preceding fiscal year or (2) if an Excess Sale
Event is deemed to occur pursuant to clause (2) of the definition
thereof, the amount by which the Net Proceeds of all such asset sales
made during the preceding thirty-six (36) months exceeds 30% of
Consolidated Total Assets as determined at the end of the fiscal year
nearest to the date thirty-six (36) months prior to such sale of
assets.
"Existing Letter of Credit" means any one of the letters of
credit described by date of issuance, letter of credit number, undrawn
amount, name of beneficiary and date of expiry on Schedule 1.1A.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Agent on such day
on such transactions as determined by the Agent.
"Fiscal Year End" means, for any fiscal year of ▇▇▇▇ and its
Subsidiaries, the Sunday nearest the last day of November.
"Foreign Currency Commitment Percentage" means, for any
Lender, the percentage identified as its Foreign Currency Commitment
Percentage on Schedule 2.1(a), as such percentage may be modified in
connection with any assignment made in accordance with the provisions
of Section 11.3.
"Foreign Currency Committed Amount" shall have the meaning
assigned to such term in Section 2.5(a).
12
"Foreign Currency Equivalent" means, on any date, with respect
to an amount denominated in Dollars, the amount of any applicable
Available Foreign Currency into which the Agent could, in accordance
with its practice from time to time in the interbank foreign exchange
market, convert such amount of Dollars at its spot rate of exchange
(inclusive of all reasonable related costs of conversion) applicable to
the relevant transaction at or about 11:00 A.M., London, England time,
on such date.
"Foreign Currency Loans" shall have the meaning assigned to
such term in Section 2.5(a).
"Foreign Letter of Credit" means any letter of credit issued
by the Issuing Lender for the account of ▇▇▇▇ Europe or ▇▇▇▇ BV in
accordance with the terms of Section 2.6.
"Foreign LOC Committed Amount" shall have the meaning assigned
to such term in Section 2.6.
"Foreign LOC Obligations" means, at any time, the sum of (i)
the maximum amount which is, or at any time thereafter may become,
available to be drawn under Foreign Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Foreign Letters of Credit plus (ii) the aggregate amount of all
drawings under Foreign Letters of Credit honored by the Issuing Lender
but not theretofore reimbursed.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary.
"French Francs" means the lawful currency of the Republic of
France.
"Funded Indebtedness" means, with respect to any Person,
without duplication, (i) all Indebtedness of such Person for borrowed
money, (ii) all purchase money Indebtedness of such Person, including
without limitation the principal portion of all obligations of such
Person under Capital Leases, (iii) all Guaranty Obligations of such
Person with respect to outstanding Funded Indebtedness of another
Person, (iv) with respect to ▇▇▇▇, the outstanding Attributed Principal
Amount under any Permitted Receivables Financing and (v) all Funded
Indebtedness of another Person secured by a Lien on any Property of
such Person, whether or not such Funded Indebtedness has been assumed
(or, if less, the aggregate net book value of all Property securing
such Funded Indebtedness of others). The Funded Indebtedness of any
Person shall include the Funded Indebtedness of any partnership or
joint venture in which such Person is a general partner or joint
venturer.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
13
"Guilders" means the lawful currency of the Netherlands.
"Guarantor" means:
(i) with respect to the ▇▇▇▇ Obligations, (A) each of
those Persons identified as a "Guarantor" on the signature
pages hereto and (B) each Additional Credit Party which may
hereafter execute a Joinder Agreement, together with the
successors and permitted assigns of any such Person referred
to in clause (A) or (B) of this clause (i);
(ii) with respect to the ▇▇▇▇ Europe Obligations, (A)
▇▇▇▇, (B) each of those Persons identified as a "Guarantor" on
the signature pages hereto and (C) each Additional Credit
Party which may hereafter execute a Joinder Agreement,
together with the successors and permitted assigns of any such
Person referred to in clause (A), (B) or (C) of this clause
(ii); and
(iii) with respect to the ▇▇▇▇ BV Obligations, (A)
▇▇▇▇, (B) each of those Persons identified as a "Guarantor" on
the signature pages hereto and (C) each Additional Credit
Party which may hereafter execute a Joinder Agreement,
together with the successors and permitted assigns of any such
Person referred to in clause (A), (B) or (C) of this clause
(iii).
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters issued to a
creditor of any non-Affiliate or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other Person,
(iii) to lease or purchase Property, securities or services primarily
for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness
against loss in respect thereof. The amount of any Guaranty Obligation
under the Credit Agreement shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness in
respect of which such Guaranty Obligation is made.
"HGA" means ▇▇▇▇ Graphics Americas Corporation, a Delaware
corporation and a Wholly Owned Subsidiary of ▇▇▇▇.
"▇▇▇▇" shall have the meaning assigned to such term in the
heading hereof.
"▇▇▇▇ BV" shall have the meaning assigned to such term in the
heading hereof.
14
"▇▇▇▇ BV Obligations" means, without duplication, all of the
obligations of ▇▇▇▇ BV to the Lenders (including the Issuing Lender)
and the Agent, whenever arising, under the Credit Agreement or any of
the other Credit Documents.
"▇▇▇▇ Europe" shall have the meaning assigned to such term in
the heading hereof.
"▇▇▇▇ Europe Obligations" means, without duplication, all of
the obligations of ▇▇▇▇ Europe to the Lenders (including the Issuing
Lender) and the Agent, whenever arising, under the Credit Agreement or
any of the other Credit Documents.
"▇▇▇▇ Holdings" means ▇▇▇▇ Holdings, Inc., a Delaware
corporation and a Wholly Owned Subsidiary of ▇▇▇▇.
"▇▇▇▇ Obligations" means, without duplication, all (i) of the
obligations of ▇▇▇▇ to the Lenders (including the Issuing Lender) and
the Agent, whenever arising, under the Credit Agreement or any of the
other Credit Documents and (ii) all liabilities and obligations,
whenever arising, owing from ▇▇▇▇ to any Lender or any affiliate of a
Lender arising under interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements
or other interest or exchange rate or commodity price hedging
agreements.
"▇▇▇▇ X-Acto" means ▇▇▇▇ X-Acto, Inc., a Pennsylvania
corporation and a Wholly Owned Subsidiary of ▇▇▇▇.
"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (iv) all obligations
of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than trade debt
incurred in the ordinary course of business and due within twelve (12)
months of the incurrence thereof) which would appear as liabilities on
a balance sheet of such Person, (v) all obligations of such Person
under take-or-pay or similar arrangements or under commodities
agreements, (vi) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed (or,
if less, the aggregate net book value of all Property securing such
Indebtedness of others), (vii) all Guaranty Obligations of such Person,
(viii) the principal portion of all obligations of such Person under
Capital Leases, (ix) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements or other interest
or exchange rate or commodity price hedging agreements, (x) the maximum
amount of all letters of credit issued or bankers' acceptances
15
facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed),
(xi) with respect to ▇▇▇▇, the outstanding Attributed Principal Amount
under any Permitted Receivables Financing and (xii) all preferred stock
issued by such Person and required by the terms thereof to be redeemed,
or for which mandatory sinking fund payments are due, by a fixed date.
The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner
or a joint venturer.
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate equal
to (i) with respect to any Revolving Loan that is a Eurodollar Loan,
for the Interest Period applicable thereto, the per annum rate of
interest determined by the Agent on the basis of the offered rates for
deposits in Dollars (for a period of time corresponding to such
Interest Period and commencing on the first day of such Interest
Period) which appear on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or
any successor or equivalent page) as of 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period (provided
that if at least two such offered rates appear on Page 3750 of the Dow
▇▇▇▇▇ Market Service (or any successor or equivalent page), the rate in
respect of such Interest Period will be the arithmetic mean of such
offered rates), and (ii) with respect to any Foreign Currency Loan, for
the Interest Period applicable thereto, the sum of (a) the per annum
rate of interest determined by the Agent on the basis of the offered
rates for deposits in the relevant Available Foreign Currency (for a
period of time corresponding to such Interest Period and commencing on
the first day of such Interest Period) which appear on Page 3750 of the
Dow ▇▇▇▇▇ Market Service (or any successor or equivalent page) as of
11:00 a.m. (London time) two Business Days before the first day of such
Interest Period (except in the case of Foreign Currency Loans
denominated in Pounds Sterling which shall be the per annum rate of
interest appearing on the first day of such Interest Period) (provided
that if at least two such offered rates appear on Page 3750 of the Dow
▇▇▇▇▇ Market Service (or any successor or equivalent page), the rate in
respect of such Interest Period will be the arithmetic mean of such
offered rates) plus (b) in the case of any Foreign Currency Loan
denominated in Pounds Sterling, the applicable MLA Cost. If for any
reason the foregoing rates are unavailable from the Dow ▇▇▇▇▇ Market
Service, then the Interbank Offered Rate shall be a market rate for the
applicable Loan for the applicable Interest Period as determined by the
Agent plus, in the case of any Foreign Currency Loan denominated in
Pounds Sterling, the applicable MLA Cost.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December, the date of
repayment of principal of such Loan and the Termination Date and (ii)
as to any Eurodollar Loan, the last day of each Interest Period for
such Loan and on the Termination Date, and in addition where the
applicable Interest Period is more than 3 months, then also on the date
3 months from the beginning of the Interest Period, and each 3 months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
16
"Interest Period" means (i) as to Eurodollar Loans, a period
of one, two, three or six month's duration, as the applicable Borrower
may elect, commencing in each case, on the date of the borrowing
(including conversions, extensions and renewals), (ii) as to
Competitive Loans, a period commencing in each case on the date of the
borrowing and ending on the date specified in the applicable
Competitive Bid whereby the offer to make such Competitive Loan was
extended (such ending date in any event to be not less than 7 nor more
than 180 days from the date of the borrowing) and (iii) as to Swingline
Loans, a period commencing in each case on the date of the borrowing
and ending on the date agreed to by ▇▇▇▇ and the Swingline Lender in
accordance with the provisions of Section 2.4(b)(i) (such ending date
in any event to be not more than seven (7) Business Days from the date
of borrowing); provided, however, (A) if any Interest Period would end
on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that in the case
of Eurodollar Loans where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business
Day), (B) no Interest Period shall extend beyond the Termination Date,
and (C) in the case of Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such
Interest Period shall end on the last day of such calendar month.
"Interim Foreign Currency Rate" means, for any day, with
respect to any Foreign Currency Loan or any unreimbursed drawing under
a Foreign Letter of Credit, a rate per annum equal to the sum of (i)
the average rate at which overnight deposits in the applicable
Available Foreign Currency and approximately equal in principal amount
to the applicable Foreign Currency Loan or unreimbursed drawing under a
Foreign Letter of Credit are obtainable by the Agent (or, in the case
of any Foreign Letter of Credit, the Issuing Lender) on such day in the
interbank market, adjusted to reflect any direct or indirect costs of
obtaining such deposits plus (ii) in the case of any Foreign Currency
Loan denominated in Pounds Sterling, the applicable MLA Cost. The
Interim Foreign Currency Rate shall be determined for each day by the
Agent or Issuing Lender, as appropriate, and such determination shall
be conclusive absent manifest error.
"Investment", in any Person, means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment
in such Person, including, without limitation, any Guaranty Obligation
incurred for the benefit of such Person.
"Irrevocable Conversion Rate" with respect to any Available
EMU Currency, means the rate adopted and irrevocably fixed by the
European Council (in accordance with Article 109l(4) of the Treaty on
European Union) on December 31, 1998 as the official exchange rate at
which National Currency Units of such Available EMU Currency shall be
converted into euro, and euro shall be converted into National Currency
Units of such Available EMU Currency.
"Issuing Lender" means Bank of America.
17
"Issuing Lender Fees" shall have the meaning assigned to such
term in Section 3.5(b)(iii).
"Italian Lira" means the lawful currency of the Republic of
Italy.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Schedule 7.12, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.12.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms of Section
11.3(b), together with their successors and permitted assigns.
"Letter of Credit" means any Domestic Letter of Credit or any
Foreign Letter of Credit.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans (or a portion of
any Revolving Loan bearing interest at the Base Rate or the Eurodollar
Rate and referred to as a Base Rate Loan or a Eurodollar Loan), the
Competitive Loans, the Swingline Loans (or any Swingline Loan bearing
interest at the Base Rate or the Quoted Rate and referred to as a Base
Rate Loan or a Quoted Rate Swingline Loan) and/or the Foreign Currency
Loans (or any Foreign Currency Loan referred to as a Eurodollar Loan),
individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
(i) issue Domestic Letters of Credit in an aggregate face amount at any
time outstanding (together with the amounts of any unreimbursed
drawings thereon) of up to the Domestic LOC Committed Amount and (ii)
issue Foreign Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the Foreign LOC Committed Amount.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
18
"LOC Obligations" means, collectively, the Domestic LOC
Obligations and the Foreign LOC Obligations.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or prospects of ▇▇▇▇ and its Subsidiaries taken as
a whole, (ii) the ability of any Credit Party to perform any material
obligation under the Credit Documents or (iii) the material rights and
remedies of the Lenders under the Credit Documents.
"Material Subsidiary" means (i) each of ▇▇▇▇ Holdings, ▇▇▇▇
X-Acto and HGA and (ii) any other direct or indirect Domestic
Subsidiary of ▇▇▇▇ which at any time on or after the Closing Date has
total assets (as determined in accordance with GAAP) equal to or
greater than $1,000,000, provided that the aggregate total assets (as
determined in accordance with GAAP) at any time of all Subsidiaries of
▇▇▇▇ excluded from this definition of "Material Subsidiary" shall not
exceed 10% of Consolidated Total Assets as of the then most recent
Calculation Date with respect to which the Agent shall have received
the Required Financial Information.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"MLA Cost" means, with respect to any Foreign Currency Loan
denominated in Pounds Sterling made by any Lender, an addition to the
interest rate on such Loan to compensate such Lender for the cost
imputed to such Lender resulting from the imposition from time to time
under or pursuant to the Bank of England Act 1998 (the "Act") and/or by
the Bank of England and/or the Financial Services Authority ("FSA") (or
other United Kingdom governmental authorities or agencies) of a
requirement to place non-interest bearing cash ratio deposits or
special deposits (whether interest bearing or not) with the Bank of
England and/or to pay fees to the FSA calculated by reference to
liabilities used to fund the Loans, expressed as a rate per annum and
determined in accordance with Schedule 1.1B.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan of which ▇▇▇▇, any
Subsidiary of ▇▇▇▇ or any ERISA Affiliate and at least one employer
other than ▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate are
contributing sponsors.
19
"National Currency Unit" means a fraction or multiple of one
euro expressed in units of an Available EMU Currency. Foreign Currency
Loans requested to be denominated in National Currency Units shall be
available only in accordance with Section 2.5(e).
"Net Proceeds" means the gross proceeds received by ▇▇▇▇ or
any of its Subsidiaries from time to time in connection with any Asset
Sale or Equity Transaction, net of (i) the out-of-pocket costs and
expenses incurred by such Person in connection with and attributable to
such Asset Sale or Equity Transaction, as applicable, and (ii) in the
case of any Asset Sale, the amount used to repay any Indebtedness that
both (a) was incurred to finance the acquisition or construction by
▇▇▇▇ or any of its Subsidiaries of the related asset (or incurred as a
refinancing of any such acquisition or construction Indebtedness) and
(b) is secured by a Lien on such related asset.
"Non-Excluded Taxes" means such term as is defined in Section
3.10.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 1.1C, as required by Section
2.1(b)(i) or Section 2.5(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 1.1D, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Participating Member State" means each country so described
in any EMU Legislation.
"Participation Interest" means, the extension of credit by a
Lender by way of a purchase of a participation in any Letters of Credit
or LOC Obligations as provided in Section 2.2(c) or Section 2.6(c), in
Swingline Loans as provided in Section 2.4(b)(iii) or in any Loans as
provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made by ▇▇▇▇ or any of its Subsidiaries in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms; (iii) Investments consisting of stock, obligations,
securities or other property received by ▇▇▇▇ or any of its
Subsidiaries in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors; (iv) Investments
existing as of the Closing Date and set forth in Schedule 1.1E; (v)
Investments in ▇▇▇▇ Europe, ▇▇▇▇ BV and any Subsidiary of ▇▇▇▇ which is
a Guarantor; (vi) Investments in any Subsidiary of ▇▇▇▇ which is not a
Guarantor, provided that the aggregate outstanding principal amount of
all such Investments plus all Investments made pursuant to subsection
(xv) of this definition shall not exceed, as of the date made, 10% of
20
Consolidated Net Worth as of the then most recent Calculation Date with
respect to which the Agent shall have received the Required Financial
Information; (vii) Guaranty Obligations permitted by Section 8.1;
(viii) acquisitions permitted by Section 6.15 and Section 8.4(c); (ix)
transactions permitted by Section 8.8; (x) loans to directors,
officers, employees, agents, customers or suppliers that do not exceed
an aggregate principal amount of $1,000,000 at any one time
outstanding; (xi) Investments received as consideration in connection
with or arising by virtue of any merger, consolidation, sale or other
transfer of assets permitted under Section 8.4; (xii) Investments by
▇▇▇▇ in a Subsidiary or Affiliate in connection with a Permitted
Receivables Financing; (xiii) intercompany Indebtedness of HGA, ▇▇▇▇
Europe and ▇▇▇▇ BV to ▇▇▇▇ incurred in the ordinary course of business
and consistent with the past practices of such Persons or for cash
management purposes and, in the case of ▇▇▇▇ Europe and ▇▇▇▇ BV, not
exceeding $10,000,000 at any time outstanding; (xiv) in the case of any
Foreign Subsidiary of ▇▇▇▇, Investments which may be denominated in a
currency other than Dollars, having similar liquidity, duration and
credit quality of issuer as Investments of the types described in the
definition of "Cash Equivalents" set forth in this Section 1.1; (xv)
Investments in joint ventures and partnerships, provided that the
aggregate outstanding principal amount of all such Investments plus all
Investments made pursuant to subsection (vi) of this definition shall
not exceed, as of the date made, 10% of Consolidated Net Worth as of
the then most recent Calculation Date with respect to which the Agent
shall have received the Required Financial Information; (xvi)
Investments made pursuant to and in accordance with the ▇▇▇▇
Corporation Supplemental Executive Benefits Plan, as in effect on the
Closing Date and (xvii) other Investments of types not otherwise
described under subsections (i) - (xvi) of this definition, provided
that all such Investments made pursuant to this subsection (xvii) shall
not exceed an aggregate principal amount of $2,000,000 at any one time
outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Agent on behalf of the
Lenders;
(ii) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP
have been established (and as to which the Property subject to
any such Lien is not yet subject to foreclosure, sale or loss
on account thereof);
21
(iv) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by ▇▇▇▇ or any of its
Subsidiaries in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment
of borrowed money);
(v) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the
judgments secured shall, within 60 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered Property for its intended purposes;
(vii) Liens on Property securing purchase money
Indebtedness (including Capital Leases) to the extent
permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days
after the acquisition thereof;
(viii) leases or subleases granted to others not
interfering in any material respect with the business of any
Credit Party;
(ix) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by the Credit Agreement;
(x) Liens created or deemed to exist in connection
with a Permitted Receivables Financing (including any related
filings of any financing statements), but only to the extent
that any such Lien relates to the applicable receivables and
related property actually sold, contributed or otherwise
conveyed pursuant to such transaction;
(xi) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(xii) Liens existing as of the Closing Date and set
forth on Schedule 1.1F; provided that (a) no such Lien shall
at any time be extended to or cover any property of any Credit
Party other than the property subject thereto on the Closing
Date and (b) the principal amount of the Indebtedness secured
by such Liens shall not be increased; and
22
(xiii) other Liens; provided that the aggregate
outstanding principal amount of all Indebtedness secured by
such Liens plus the aggregate outstanding principal amount of
all Indebtedness of all Subsidiaries of ▇▇▇▇ plus the
aggregate outstanding obligations incurred in transactions
permitted by Section 8.12 shall not, at any time, exceed 20%
of Consolidated Net Worth as of the then most recent
Calculation Date with respect to which the Agent shall have
received the Required Financial Information.
"Permitted Receivables Financing" means any transaction
involving one or more sales, contributions or other conveyances by ▇▇▇▇
of any accounts receivable to a Subsidiary or Affiliate of ▇▇▇▇ (with
respect to any such transaction, the "Receivables Financing SPC"),
which Receivables Financing SPC then (x) sells (as determined in
accordance with GAAP) any such receivables (or an interest therein) to
any Person that is not a Subsidiary or Affiliate of ▇▇▇▇ (with respect
to any such transaction, the "Receivables Financier"), (y) borrows from
such Receivables Financier and secures such borrowings by a pledge of
such receivables or (z) otherwise finances its acquisition of such
receivables and, in connection therewith, conveys an interest in such
receivables to the Receivables Financier, provided that (i) the
aggregate Attributed Principal Amount for all such receivables
financings shall not at any time exceed $35,000,000, (ii) such
receivables financing shall not involve any recourse to ▇▇▇▇ or any of
its Subsidiaries for any reason other than (A) repurchases of
non-eligible receivables or (B) indemnifications for losses other than
credit losses related to the receivables sold in such financing, (iii)
such receivables financing shall not include any Guaranty Obligations
of ▇▇▇▇ or any of its Subsidiaries, (iv) the Agent shall be reasonably
satisfied with the structure of and documentation for any such
transaction and that the terms of such transaction, including the
discount at which receivables are sold and any termination events,
shall be (in the good faith understanding of the Agent) consistent with
those prevailing in the market for similar transactions involving a
receivables originator/servicer of similar credit quality and a
receivables pool of similar characteristics and (v) the documentation
for such transaction shall not be amended or modified without the prior
written approval of the Agent.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which
▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" within the meaning of Section 3(5) of
ERISA.
"Pounds Sterling" means the lawful currency of the United
Kingdom.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is
23
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Pro Forma Basis" means, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first day
of the four fiscal-quarter period ending as of the most recent
Calculation Date preceding the date of such transaction with respect to
which the Agent has received the Required Financial Information. As
used herein, "transaction" means (i) any incurrence, assumption or
retirement of Indebtedness as referred to in Section 8.1(i)(i), (ii)
any sale or other disposition of assets as referred to in Section
8.3(b)(iv) or (iii) any acquisition of capital stock or securities or
any purchase, lease or other acquisition of Property as referred to in
Section 8.4(c). With respect to any transaction of the type described
in clause (i) above regarding Indebtedness which has a floating or
formula rate, the implied rate of interest for such Indebtedness for
the applicable period for purposes of this definition shall be
determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline
Lender and accepted by ▇▇▇▇ with respect to such Swingline Loan as
provided in accordance with the provisions of Section 2.4.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at a Quoted Rate.
"Receivables Financier" shall have the meaning assigned to
such term in the definition of "Permitted Receivables Financing" set
forth in this Section 1.1.
"Regulation T, U, or X" means Regulation T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reimbursement Date" shall have the meaning assigned to such
term in Section 2.6(d).
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
post-event notice requirement is waived under subsections .21 through
.35 or .62 through .67 of PBGC Reg. ss. 4043.
"Required Financial Information" means, with respect to the
applicable Calculation Date, (i) the financial statements of ▇▇▇▇
required to be delivered pursuant to Section 7.1(a) or (b) for the
fiscal period or quarter ending as of such Calculation Date, and (ii)
24
the certificate of the chief financial officer, controller or treasurer
of ▇▇▇▇ required by Section 7.1(c) to be delivered with the financial
statements described in clause (i) above.
"Required Lenders" means, at any time, Lenders which are then
in compliance with their obligations under the Credit Agreement (as
determined by the Agent) and holding in the aggregate more than 50% of
(i) the Commitments to make Revolving Loans or (ii) if the Commitments
have been terminated, the outstanding Loans and Participation
Interests.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and 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 material property is subject.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of ▇▇▇▇ or any of its Subsidiaries, now or after the Closing
Date outstanding, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of ▇▇▇▇ or any of its
Subsidiaries, now or after the Closing Date outstanding and (iii) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
stock of ▇▇▇▇ or any of its Subsidiaries, now or after the Closing Date
outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of
the Revolving Committed Amount, (A) to make Revolving Loans in
accordance with the provisions of Section 2.1(a), (B) to purchase
participation interests in Domestic Letters of Credit in accordance
with the provisions of Section 2.2(c), (C) to purchase participation
interests in the Swingline Loans in accordance with the provisions of
Section 2.4(c), (D) to make Foreign Currency Loans in accordance with
the provisions of Section 2.5(a) and (E) to purchase participation
interests in Foreign Letters of Credit in accordance with the
provisions of Section 2.6(c).
"Revolving Committed Amount" shall have the meaning assigned
to such term in Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., or any successor or assignee of the
business of such division in the business of rating securities.
25
"Senior Note" means any of the 7.86% Senior Notes due August
1, 2011, in an aggregate original principal amount of $50,000,000,
issued by ▇▇▇▇ in favor of the Senior Noteholders pursuant to the
Senior Note Agreement, as the same may be amended, modified,
supplemented or replaced from time to time.
"Senior Note Agreement" means that certain Note Purchase
Agreement, dated as of August 1, 1996, by and between ▇▇▇▇ and the
Senior Noteholders, as the same may be amended, modified, supplemented
or replaced from time to time.
"Senior Noteholder" means any of the holders from time to time
of the Senior Notes.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair saleable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Standby Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(i).
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50%
equity interest at any time.
26
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.4(a).
"Swingline Lender" means Bank of America.
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.4(a).
"Termination Date" means September 12, 2003.
"Termination Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by ▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate from
a Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan; (iii) the
distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; or (vi) the complete or partial withdrawal of
▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate from a
Multiemployer Plan.
"Trade Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(ii).
"Transition Period Cutoff Date" means December 31, 2001, or
such other date as may be established by EMU Legislation.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht
Treaty (which was signed at Maastricht on February 1, 1992 and came
into force on November 1, 1993), as amended from time to time.
"Unused Fee" shall have the meaning assigned to such term in
Section 3.5(a).
"Unused Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount
exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Loans plus (ii) the
outstanding aggregate principal amount of all LOC Obligations.
27
"Voting Stock" means, with respect to any Person, capital
stock issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of
such a contingency.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
100% of whose Voting Stock or other equity interests is at the time
owned by such Person directly or indirectly through other Wholly Owned
Subsidiaries.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
under the Credit Agreement shall be prepared, in accordance with GAAP applied on
a consistent basis. All calculations made for the purposes of determining
compliance with the Credit Agreement shall (except as otherwise expressly
provided in the Credit Agreement) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements as at November 28, 1999); provided, however, if (a) ▇▇▇▇ shall object
to determining such compliance on such basis at the time of delivery of such
financial statements due to any change in or application of GAAP or the rules
promulgated with respect thereto or (b) the Agent or the Required Lenders shall
so object in writing within 30 days after delivery of such financial statements,
then such calculations shall be made on a basis consistent with the most recent
financial statements delivered by ▇▇▇▇ to the Lenders as to which no such
objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions
of the Credit Agreement and in reliance upon the representations and
warranties set forth in the Credit Agreement, each Lender severally
agrees to make available to ▇▇▇▇ such Lender's Commitment Percentage of
revolving credit loans in Dollars ("Revolving Loans") from time to time
from the Closing Date until the Termination Date, or such earlier date
28
as the Revolving Commitments shall have been terminated as provided in
the Credit Agreement for the purposes hereinafter set forth; provided
further, however, that the sum of the aggregate principal amount of
outstanding Revolving Loans shall not exceed FIFTY MILLION DOLLARS
($50,000,000) (as such aggregate maximum amount may be reduced from
time to time as provided in Section 3.4, the "Revolving Committed
Amount"); provided, further, (i) with regard to each Lender
individually, such Lender's outstanding Revolving Loans shall not
exceed such Lender's Commitment Percentage of the Revolving Committed
Amount, and (ii) with regard to the Lenders collectively, the aggregate
principal amount of outstanding Revolving Loans plus Domestic LOC
Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of
outstanding Swingline Loans plus the Dollar Amount (as determined as of
the most recent Determination Date) of the aggregate principal amount
of outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not exceed the Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as ▇▇▇▇ may request, and may be repaid
and reborrowed in accordance with the provisions of the Credit
Agreement; provided, however, that no more than 12 separate Eurodollar
Loans shall be outstanding at any time. For purposes of the Credit
Agreement, Eurodollar Loans with different Interest Periods and/or in
different currencies shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings, extensions
and conversions may, in accordance with the provisions of the Credit
Agreement, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period and in
the same currency.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. ▇▇▇▇ shall request a
Revolving Loan borrowing by written notice (or telephone
notice promptly confirmed in writing) to the Agent not later
than 12:00 Noon (Charlotte, North Carolina time) on the
Business Day of the requested borrowing in the case of Base
Rate Loans, and on the third Business Day prior to the date of
the requested borrowing in the case of Eurodollar Loans. Each
such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date
of the requested borrowing (which shall be a Business Day),
(C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar
Loans are requested, the Interest Period(s) therefor. If ▇▇▇▇
shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the type of Revolving
Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan. The Agent shall give notice to
each Lender promptly upon receipt of each Notice of Borrowing
pursuant to this Section 2.1(b)(i), the contents thereof and
each such Lender's share of any borrowing to be made pursuant
thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base
Rate Loan that is a Revolving Loan shall be in a minimum
aggregate amount of $2,000,000 and integral multiples of
$1,000,000 in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less).
29
(iii) Advances. Each Lender will make its Commitment
Percentage of each Revolving Loan borrowing available to the
Agent for the account of ▇▇▇▇ as specified in Section 3.14(b),
or in such other manner as the Agent may specify in writing,
by 1:00 P.M. (Charlotte, North Carolina time) on the date
specified in the applicable Notice of Borrowing in Dollars and
in funds immediately available to the Agent. Such borrowing
will then be made available to ▇▇▇▇ by the Agent by crediting
the account of ▇▇▇▇ on the books of such office with the
aggregate of the amounts made available to the Agent by the
Lenders and in like funds as received by the Agent.
(c) Repayment. ▇▇▇▇ hereby promises to pay the principal
amount of all Revolving Loans in full on the Termination Date, unless
accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
Revolving Loans shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised of Base Rate Loans, the Base Rate.
(ii) Eurodollar Loans. During such periods as
Revolving Loans shall be comprised of Eurodollar Loans, the
Eurodollar Rate plus the Applicable Margin.
▇▇▇▇ hereby promises to pay interest on Revolving Loans in arrears on
each Interest Payment Date (or at such other times as may be specified
herein).
2.2 Domestic Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions of the
Credit Agreement and of the LOC Documents, if any, and any other terms
and conditions which the Issuing Lender may reasonably require, the
Lenders will participate in the issuance by the Issuing Lender, from
time to time and in Dollars, of such Domestic Letters of Credit from
the Closing Date until the Termination Date as ▇▇▇▇ may request, in a
form acceptable to the Issuing Lender; provided, however, that (i) the
Domestic LOC Obligations outstanding shall not at any time exceed TEN
MILLION DOLLARS ($10,000,000) (the "Domestic LOC Committed Amount") and
(ii) the sum of the aggregate principal amount of outstanding Revolving
Loans plus Domestic LOC Obligations outstanding plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate
principal amount of outstanding Swingline Loans plus the Dollar Amount
(as determined as of the most recent Determination Date) of the
aggregate principal amount of outstanding Foreign Currency Loans plus
the Dollar Amount (as determined as of the most recent Determination
30
Date) of Foreign LOC Obligations outstanding shall not at any time
exceed the aggregate Revolving Committed Amount. No Domestic Letter of
Credit shall (x) have an original expiry date more than one year from
the date of issuance or (y) as originally issued or as extended, have
an expiry date extending beyond the Termination Date. Each Domestic
Letter of Credit shall comply with the related LOC Documents. The
issuance and expiry date of each Domestic Letter of Credit shall be a
Business Day.
(b) Notice and Reports. The request for the issuance of a
Domestic Letter of Credit shall be submitted by ▇▇▇▇ to the Issuing
Lender at least three (3) Business Days prior to the requested date of
issuance. The Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to each of the Lenders and ▇▇▇▇ a
detailed report specifying the Domestic Letters of Credit which are
then issued and outstanding and any activity with respect thereto which
may have occurred since the date of the prior report, and including
therein, among other things, the beneficiary, the face amount, expiry
date as well as any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Domestic
Letter of Credit (or, in the case of each Existing Letter of Credit, on
the Closing Date), shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Domestic Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such
Domestic Letter of Credit (based on the respective Commitment
Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay in Dollars to the Issuing Lender therefor and
discharge when due, its pro rata share of the obligations arising under
such Domestic Letter of Credit. Without limiting the scope and nature
of each Lender's participation in any Domestic Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required
under the Credit Agreement or under any such Domestic Letter of Credit,
each such Lender shall pay to the Issuing Lender in Dollars its pro
rata share of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant
to the provisions of subsection (d) below. The obligation of each
Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of
▇▇▇▇ to reimburse the Issuing Lender under any Domestic Letter of
Credit, together with interest as hereinafter provided. As of the
Closing Date, each Existing Letter of Credit shall be deemed for all
purposes of the Credit Agreement and the other Credit Documents to be a
Domestic Letter of Credit.
(d) Reimbursement. In the event of any drawing under any
Domestic Letter of Credit, the Issuing Lender will promptly notify
▇▇▇▇. Unless ▇▇▇▇ shall immediately notify the Issuing Lender that ▇▇▇▇
intends to otherwise reimburse the Issuing Lender for such drawing,
▇▇▇▇ shall be deemed to have requested that the Lenders make a
Revolving Loan in the amount of the drawing as provided in subsection
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(e) below on the related Domestic Letter of Credit, the proceeds of
which will be used to satisfy the related reimbursement obligations.
▇▇▇▇ promises to reimburse the Issuing Lender (either with the proceeds
of a Revolving Loan obtained under the Credit Agreement or otherwise)
on the day of drawing under any Domestic Letter of Credit in an amount
equal to such drawing in same day funds. If ▇▇▇▇ shall fail to
reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to
the Base Rate plus two percent (2%). ▇▇▇▇'▇ reimbursement obligations
under the Credit Agreement shall be absolute and unconditional under
all circumstances irrespective of any rights of setoff, counterclaim or
defense to payment ▇▇▇▇ may claim or have against the Issuing Lender,
the Agent, the Lenders, the beneficiary of the Domestic Letter of
Credit drawn upon or any other Person, including without limitation any
defense based on any failure of ▇▇▇▇ or any other Credit Party to
receive consideration or the legality, validity, regularity or
unenforceability of the Domestic Letter of Credit. The Issuing Lender
will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Agent
for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such notice
is received by such Lender from the Issuing Lender if such notice is
received at or before 2:00 P.M. (Charlotte, North Carolina time)
otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding
the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of
such drawing until such Lender pays such amount to the Issuing Lender
in full at a rate per annum equal to, if paid within two (2) Business
Days of the date of drawing, the Federal Funds Rate and thereafter at a
rate equal to the Base Rate. Each Lender's obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of the Credit Agreement or the Commitments, the existence
of a Default or Event of Default or the acceleration of the obligations
of ▇▇▇▇ under the Credit Documents and shall be made without any
offset, abatement, withholding or reduction whatsoever. Simultaneously
with the making of each such payment by a Lender to the Issuing Lender,
such Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Lender, acquire a participation in
an amount equal to such payment (excluding the portion of such payment
constituting interest owing to the Issuing Lender) in the related
unreimbursed drawn portion of the Domestic LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a
claim against ▇▇▇▇ with respect thereto.
(e) Repayment with Revolving Loans. On any day on which ▇▇▇▇
shall have requested, or been deemed to have requested, a Revolving
Loan advance to reimburse a drawing under a Domestic Letter of Credit,
32
the Agent shall give notice to the Lenders that a Revolving Loan has
been requested or deemed requested by ▇▇▇▇ to be made in connection
with a drawing under a Domestic Letter of Credit, in which case a
Revolving Loan advance comprised solely of Base Rate Loans shall be
immediately made to ▇▇▇▇ by all Lenders (notwithstanding any
termination of the Commitments pursuant to Section 9.2) pro rata based
on the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to
Section 9.2) and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the respective Domestic LOC
Obligations. Each such Lender hereby irrevocably agrees to make its pro
rata share of each such Revolving Loan immediately upon any such
request or deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of
such borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required under the Credit Agreement, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan to be
made by the time otherwise required under the Credit Agreement, (v)
whether the date of such borrowing is a date on which Revolving Loans
are otherwise permitted to be made under the Credit Agreement or (vi)
any termination of the Commitments relating thereto immediately prior
to or contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
▇▇▇▇ or any other Credit Party), then each such Lender hereby agrees
that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from
▇▇▇▇ on or after such date and prior to such purchase) from the Issuing
Lender in Dollars such participation in the outstanding Domestic LOC
Obligations as shall be necessary to cause each such Lender to share in
such Domestic LOC Obligations ratably (based upon the respective
Commitment Percentages of the Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2)),
provided that at the time any purchase of participation pursuant to
this sentence is actually made, the purchasing Lender shall be required
to pay to the Issuing Lender, to the extent not paid to the Issuer by
▇▇▇▇ in accordance with the terms of subsection (d) above, interest on
the principal amount of participation purchased for each day from and
including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation,
at the rate equal to, if paid within two (2) Business Days of the date
of the Revolving Loan advance, the Federal Funds Rate, and thereafter
at a rate equal to the Base Rate.
(f) Renewal, Extension. The renewal or extension of any
Domestic Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Domestic Letter of Credit
under the Credit Agreement.
33
(g) Uniform Customs and Practices. The Issuing Lender may have
the Domestic Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits (the "UCP") or the International
Standby Practices 1998 (the "ISP98"), in either case as published as of
the date of issue by the International Chamber of Commerce, in which
case the UCP or ISP98, as applicable, may be incorporated therein and
deemed in all respects to be a part thereof.
(h) Indemnification; Nature of Issuing Lender's Duties. (i) In
addition to its other obligations under this Section 2.2, ▇▇▇▇ hereby
agrees to protect, indemnify, pay and save the Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys'
fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Domestic
Letter of Credit or (B) the failure of the Issuing Lender to honor a
drawing under a Domestic Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between ▇▇▇▇ and the Issuing Lender, ▇▇▇▇
shall assume all risks of the acts, omissions or misuse of any
Domestic Letter of Credit by the beneficiary thereof. The
Issuing Lender shall not be responsible: (A) for the form,
validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of any Domestic Letter of Credit,
even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B)
for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Domestic
Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (D) for any loss
or delay in the transmission or otherwise of any document
required in order to make a drawing under a Domestic Letter of
Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the
Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers under the
Credit Agreement.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Lender, under or in
connection with any Domestic Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
such Issuing Lender under any resulting liability to ▇▇▇▇ or
any other Credit Party. It is the intention of the parties
that the Credit Agreement shall be construed and applied to
34
protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Domestic Letters of
Credit, all of which risks are hereby assumed by ▇▇▇▇ (on
behalf of itself and each of the other Credit Parties),
including, without limitation, any and all Government Acts.
The Issuing Lender shall not, in any way, be liable for any
failure by the Issuing Lender or anyone else to pay any
drawing under any Domestic Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the
Issuing Lender.
(iv) Nothing in this subsection (h) is intended to
limit the reimbursement obligations of ▇▇▇▇ contained in
subsection (d) above. The obligations of ▇▇▇▇ under this
subsection (h) shall survive the termination of the Credit
Agreement. No act or omissions of any current or prior
beneficiary of a Domestic Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce
any right, power or benefit under the Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (h), ▇▇▇▇ shall have no
obligation to indemnify the Issuing Lender in respect of any
liability incurred by the Issuing Lender (A) arising solely
out of the gross negligence or willful misconduct of the
Issuing Lender or (B) caused by the Issuing Lender's unlawful
failure to pay under any Domestic Letter of Credit.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender under
the Credit Agreement to the Lenders are only those expressly set forth
in the Credit Agreement and that the Issuing Lender shall be entitled
to assume that the conditions precedent set forth in Section 5.2 have
been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.2 shall be deemed to prejudice
the right of any Lender to recover from the Issuing Lender any amounts
made available by such Lender to the Issuing Lender pursuant to this
Section 2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Domestic Letter of
Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict
between the Credit Agreement and any LOC Document, the Credit Agreement
shall control.
2.3 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions and
relying upon the representations and warranties set forth in the Credit
Agreement, ▇▇▇▇ may, from time to time from the Closing Date until the
Termination Date, request and each Lender may, in its sole discretion,
agree to make available to ▇▇▇▇ Competitive Loans in Dollars; provided
further, however, that (i) the aggregate principal amount of
outstanding Competitive Loans shall not at any time exceed the lesser
of (a) FIFTY MILLION DOLLARS ($50,000,000) or (b) the Revolving
35
Committed Amount (the "Competitive Loan Maximum Amount"), and (ii) the
sum of the aggregate principal amount of outstanding Revolving Loans
plus Domestic LOC Obligations outstanding plus the aggregate principal
amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of the aggregate
principal amount of outstanding Foreign Currency Loans plus the Dollar
Amount (as determined as of the most recent Determination Date) of
Foreign LOC Obligations outstanding shall not at any time exceed the
Revolving Committed Amount. Each Competitive Loan shall be not less
than $5,000,000 in the aggregate and integral multiples of $1,000,000
in excess thereof (or the remaining portion of the Competitive Loan
Maximum Amount, if less).
(b) Competitive Bid Requests. ▇▇▇▇ may solicit Competitive
Bids by delivery of a Competitive Bid Request substantially in the form
of Schedule 2.3(b)-1 to the Agent by 12:00 Noon (Charlotte, North
Carolina time) on a Business Day not less than one (1) nor more than
four (4) Business Days prior to the date of a requested Competitive
Loan borrowing. A Competitive Bid Request shall specify (i) the date of
the requested Competitive Loan borrowing (which shall be a Business
Day), (ii) the amount of the requested Competitive Loan borrowing and
(iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Agent
shall, promptly following its receipt of a Competitive Bid Request
under this subsection (b), notify the affected Lenders of its receipt
and the contents thereof and invite the Lenders to submit Competitive
Bids in response thereto. A form of such notice is provided in Schedule
2.3(b)-2. No more than three (3) Competitive Bid Requests (e.g., ▇▇▇▇
may request Competitive Bids for no more than three (3) different
Interest Periods at a time) shall be submitted at any one time and
Competitive Bid Requests may be made no more frequently than once every
five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to ▇▇▇▇ in response to a
Competitive Bid Request. Each Competitive Bid must be received by the
Agent not later than 10:00 A.M. (Charlotte, North Carolina time) on the
Business Day next succeeding the date of receipt by the Agent of the
related Competitive Bid Request. A Lender may offer to make all or part
of the requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. The
Competitive Bid shall specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the minimum
(which shall be not less than $5,000,000 and integral multiples of
$1,000,000 in excess thereof except as otherwise provided in Section
2.3(a)) and maximum principal amounts of the requested Competitive Loan
or Loans as to which the Lender is willing to make, and (iii) the
applicable interest rate or rates and Interest Period or Periods
therefor. A form of such Competitive Bid is provided in Schedule
2.3(c). A Competitive Bid submitted by a Lender in accordance with the
provisions hereof shall be irrevocable. The Agent shall promptly notify
▇▇▇▇ of all Competitive Bids made and the terms thereof.
(d) Submission of Competitive Bids by Agent. If the Agent, in
its capacity as a Lender, elects to submit a Competitive Bid in
response to any Competitive Bid Request, it shall submit such
Competitive Bid directly to ▇▇▇▇ one-half of an hour earlier than the
36
latest time at which the other Lenders are required to submit their
Competitive Bids to the Agent in response to such Competitive Bid
Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. ▇▇▇▇ may, in its sole and
absolute discretion, subject only to the provisions of this subsection
(e), accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, ▇▇▇▇ shall give written notification (or telephone
notice promptly confirmed in writing) substantially in the form of
Schedule 2.3(e) of its acceptance of any or all such Competitive Bids
to the Agent by 11:00 A.M. (Charlotte, North Carolina time) on the date
on which notice of the Competitive Bids is given to ▇▇▇▇ by the Agent;
provided, however, (i) the failure by ▇▇▇▇ to give timely notice of its
acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (ii) ▇▇▇▇ may accept Competitive Bids only in ascending order
of rates, (iii) the aggregate amount of Competitive Bids accepted by
▇▇▇▇ shall not exceed the principal amount specified in the Competitive
Bid Request, (iv) ▇▇▇▇ may accept a portion of a Competitive Bid in the
event, and to the extent, acceptance of the entire amount thereof would
cause ▇▇▇▇ to exceed the principal amount specified in the Competitive
Bid Request, subject however to the minimum amounts provided herein
(and provided that where two or more Lenders submit such a Competitive
Bid at the same Competitive Bid Rate, then pro rata between or among
such Lenders) and (v) no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof,
except that where a portion of a Competitive Bid is accepted in
accordance with the provisions of clause (iv) above, then in a minimum
principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof (but not in any event less than the minimum amount
specified in the Competitive Bid), and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) above, the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall
be in the discretion of ▇▇▇▇. A notice of acceptance of a Competitive
Bid given by ▇▇▇▇ in accordance with the provisions hereof shall be
irrevocable. The Agent shall, not later than 12:00 Noon (Charlotte,
North Carolina time) on the date of receipt by the Agent of a
notification from ▇▇▇▇ of its acceptance and/or refusal of Competitive
Bids, notify each affected Lender of its receipt and the contents
thereof. Upon its receipt from the Agent of notification of ▇▇▇▇'▇
acceptance of its Competitive Bid in accordance with the terms of this
subsection (e), each successful bidding Lender will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make
a Competitive Loan shall make its Competitive Loan borrowing available
to the Agent for the account of ▇▇▇▇ at the office of the Agent
specified in Section 3.14(b), or at such other office as the Agent may
designate in writing, by 1:30 P.M. (Charlotte, North Carolina time) on
the date specified in the Competitive Bid Request in Dollars and in
funds immediately available to the Agent. Such borrowing will then be
made available to ▇▇▇▇ by crediting the account of ▇▇▇▇ on the books of
such office with the aggregate of the amount made available to the
Agent by the applicable Competitive Loan Lenders and in like funds as
received by the Agent.
37
(g) Maturity of Competitive Loans. Subject to the following
sentence, ▇▇▇▇ hereby promises to repay in full the principal amount of
each Competitive Loan on the last day of the Interest Period applicable
thereto. Unless ▇▇▇▇ shall give notice to the Agent otherwise, ▇▇▇▇
shall be deemed to have requested a Revolving Loan borrowing in the
amount of the maturing Competitive Loan, the proceeds of which will be
used to repay such Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions
of Section 3.1, Competitive Loans shall bear interest in each case at
the Competitive Bid Rate applicable thereto. ▇▇▇▇ hereby promises to
pay interest on Competitive Loans in arrears on each Interest Payment
Date (or at such other times as may be specified herein).
2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth in the Credit Agreement, the Swingline Lender, in its individual
capacity, agrees to make available to ▇▇▇▇ certain revolving credit
loans in Dollars (each a "Swingline Loan" and, collectively, the
"Swingline Loans") from time to time from the Closing Date until the
Termination Date for the purposes hereinafter set forth; provided
further, however, that (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed TWO MILLION DOLLARS
($2,000,000.00) (the "Swingline Committed Amount"), and (ii) the
aggregate principal amount of outstanding Revolving Loans plus Domestic
LOC Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of
outstanding Swingline Loans plus the Dollar Amount (as determined as of
the most recent Determination Date) of the aggregate principal amount
of outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not exceed the Revolving Committed
Amount. Swingline Loans shall be made as Base Rate Loans or Quoted Rate
Swingline Loans as ▇▇▇▇ may request in accordance with the provisions
of this Section 2.4, and may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever ▇▇▇▇ desires a
Swingline Loan advance it shall give written notice (or
telephone notice promptly confirmed in writing) to the
Swingline Lender not later than 12:00 Noon (Charlotte, North
Carolina time) on the Business Day of the requested Swingline
Loan advance. Each such notice shall be irrevocable and shall
specify (A) that a Swingline Loan advance is requested, (B)
the date of the requested Swingline Loan advance (which shall
be a Business Day) and (C) the principal amount of the
Swingline Loan advance requested. Each Swingline Loan shall be
made as a Base Rate Loan or a Quoted Rate Swingline Loan and
shall have such maturity date as the Swingline Lender and ▇▇▇▇
shall agree upon receipt by the Swingline Lender of any such
notice from ▇▇▇▇. The Swingline Lender shall initiate the
38
transfer of funds representing the Swingline Loan advance to
▇▇▇▇ by 3:00 P.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance
shall be in a minimum principal amount of $100,000 and in
integral multiples of $50,000 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. ▇▇▇▇ hereby
promises to pay the principal amount of all Swingline Loans on
the earlier of (A) the maturity date agreed to by the
Swingline Lender and ▇▇▇▇ with respect to such Loan (which
maturity date shall not be a date more than seven (7) Business
Days from the date of advance thereof) or (B) the Termination
Date. The Swingline Lender may, at any time, in its sole
discretion, by written notice to ▇▇▇▇ and the Lenders, demand
repayment of its Swingline Loans by way of a Revolving Loan
advance, in which case ▇▇▇▇ shall be deemed to have requested
a Revolving Loan advance comprised solely of Base Rate Loans
in the amount of such Swingline Loans; provided, however, that
any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of
the occurrence of any Event of Default described in Section
9.1 and upon acceleration of the indebtedness under the Credit
Documents and the exercise of remedies in accordance with the
provisions of Section 9.2. Each Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan
in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (I) the amount of such
borrowing may not comply with the minimum amount for advances
of Revolving Loans otherwise required under the Credit
Agreement, (II) whether any conditions specified in Section
5.2 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such request or
deemed request for Revolving Loan to be made by the time
otherwise required under the Credit Agreement, (V) whether the
date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made under the Credit Agreement or
(VI) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing.
In the event that any Revolving Loan cannot for any reason be
made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to ▇▇▇▇ or any other
Credit Party), then each Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments
received from ▇▇▇▇ on or after such date and prior to such
purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause
each such Lender to share in such Swingline Loans ratably
based upon its Commitment Percentage of the Revolving
Committed Amount (determined before giving effect to any
termination of the Commitments pursuant to Section 3.4),
provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the
date as of which the respective participation is purchased and
(B) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing Lender shall be
required to pay to the Swingline Lender, to the extent not
39
paid to the Swingline Lender by ▇▇▇▇ in accordance with the
terms of subsection (c)(ii) hereof, interest on the principal
amount of participation purchased for each day from and
including the day upon which such borrowing would otherwise
have occurred to but excluding the date of payment for such
participation, at the rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans. (i) Subject to the provisions
of Section 3.1, each Swingline Loan shall bear interest at a per annum
rate (computed on the basis of the actual number of days elapsed over a
year of 360 days) equal to:
(A) Base Rate Loans. If such Swingline Loan is a Base
Rate Loan, the Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline
Loan is a Quoted Rate Swingline Loan, Quoted Rate applicable
thereto.
Notwithstanding any other provision to the contrary set forth in the
Credit Agreement, in the event that the principal amount of any Quoted
Rate Swingline Loan is not repaid on the last day of the Interest
Period for such Loan, then such Loan shall be automatically converted
into a Base Rate Loan at the end of such Interest Period.
(ii) Payment of Interest. ▇▇▇▇ hereby promises to pay interest
on Swingline Loans in arrears on each applicable Interest Payment Date
(or at such other times as may be specified herein).
2.5 Foreign Currency Loan Subfacility.
(a) Foreign Currency Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth in the Credit Agreement, each Lender severally
agrees to make available to ▇▇▇▇ Europe and ▇▇▇▇ BV such Lender's
Foreign Currency Commitment Percentage of revolving credit loans in the
Available Foreign Currency requested by ▇▇▇▇ Europe or ▇▇▇▇ BV, as
applicable, ("Foreign Currency Loans") from time to time from the date
five (5) Business Days subsequent to the Closing Date until the date
five (5) Business Days prior to the Termination Date, or such earlier
date as the Revolving Commitments shall have been terminated as
provided in the Credit Agreement for the purposes hereinafter set
forth; provided, however, that the Dollar Amount (as determined as of
the most recent Determination Date) of the aggregate amount of Foreign
Currency Loans outstanding at any time shall not exceed FIFTEEN MILLION
DOLLARS ($15,000,000.00) (the "Foreign Currency Committed Amount");
provided, further, (i) with regard to each Lender individually, such
Lender's outstanding Foreign Currency Loans shall not exceed such
Lender's Foreign Commitment Percentage of the Foreign Currency
Committed Amount, (ii) with regard to the Lenders collectively, the sum
of the Dollar Amount (as determined as of the most recent Determination
Date) of the aggregate principal amount of outstanding Foreign Currency
Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not at
any time exceed the aggregate Foreign Currency Committed Amount and
40
(iii) with regard to the Lenders collectively, the aggregate principal
amount of outstanding Revolving Loans plus Domestic LOC Obligations
outstanding plus the aggregate principal amount of outstanding
Competitive Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the Dollar Amount (as determined as of the most
recent Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not exceed the Revolving Committed
Amount. Foreign Currency Loans shall consist solely of Eurodollar Loans
and may be repaid and reborrowed in accordance with the provisions
hereof; provided, however, that no more than 12 separate Eurodollar
Loans shall be outstanding at any time. For purposes hereof, Eurodollar
Loans with different Interest Periods and/or in different currencies
shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period and in the same currency.
(b) Foreign Currency Loan Borrowings.
(i) Notice of Borrowing. ▇▇▇▇ Europe or ▇▇▇▇ BV, as
applicable, shall request a Foreign Currency Loan borrowing by
written notice (or telephone notice promptly confirmed in
writing) to each office of the Agent specified in Section
3.14(b) not later than 11:00 A.M., local time in the place
where such borrowing is to be made, on the third Business Day
prior to the date of the requested borrowing. Each such
request for borrowing shall be irrevocable and shall specify
(A) that a Foreign Currency Loan is requested, (B) the
requested Available Foreign Currency, (C) the date of the
requested borrowing (which shall be a Business Day), (D) the
aggregate principal amount to be borrowed, and (E) the
Interest Period(s) therefor. If such Borrower shall fail to
specify in any such Notice of Borrowing an applicable Interest
Period, then such notice shall be deemed to be a request for
an Interest Period of one month. The Agent shall give notice
to each Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.5(b)(i), the contents
thereof and each such Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan
shall be in a minimum aggregate amount equal to the Foreign
Currency Equivalent of $500,000 and integral multiples of
$250,000 in excess thereof (or the remaining amount of the
Foreign Currency Committed Amount, if less).
(iii) Advances. Each Lender will make its Foreign
Currency Commitment Percentage of each Foreign Currency Loan
borrowing available to the Agent as specified in Section
3.14(b), or in such other manner as the Agent may specify in
writing, by 1:00 P.M., local time in the place where such
deposit is required to be made, on the date specified in the
applicable Notice of Borrowing in the applicable Available
Foreign Currency and in funds immediately available to the
Agent. Such borrowing will then be made available to the
41
applicable Borrower by the Agent by crediting the account of
such Borrower on the books of such office with the aggregate
of the amounts made available to the Agent by the Lenders and
in like funds as received by the Agent.
(c) Repayment. Each of ▇▇▇▇ Europe and ▇▇▇▇ BV hereby promises
to pay the principal amount of all Foreign Currency Loans made to such
Borrower in full in the applicable Available Foreign Currency on the
Termination Date, unless accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
Foreign Currency Loans shall bear interest at a per annum rate equal to
the Eurodollar Rate plus the Applicable Margin. Each of ▇▇▇▇ Europe and
▇▇▇▇ BV hereby promises to pay interest on such Borrower's Foreign
Currency Loans (in the applicable Available Foreign Currency) in
arrears on each Interest Payment Date.
(e) Introduction of Euro; National Currency Unit Advances,
Etc.
(i) National Currency Unit Advances. Prior to the Transition
Period Cutoff Date, Foreign Currency Loans may be funded and maintained
in National Currency Units of the Available EMU Currency designated by
the applicable Borrower in its Notice of Borrowing. Repayments of
Foreign Currency Loans that were funded in National Currency Units
pursuant to this Section shall be made in such National Currency Units;
provided, however, that any Foreign Currency Loan that is (A)
denominated in National Currency Units and (B) outstanding as of the
Transition Period Cutoff Date shall be automatically redenominated into
euro as of the close of business on such date at the applicable
Irrevocable Conversion Rate; and provided further that repayments of
all such Foreign Currency Loans made after the Transition Period Cutoff
Date shall be denominated in euro. After the Transition Period Cutoff
Date, Foreign Currency Loans shall no longer be funded in National
Currency Units.
(ii) Conversions to Euro. For the avoidance of doubt, the
parties hereto affirm and agree that neither the fixation of the
conversion rate of an Available EMU Currency against the euro as a
single currency, in accordance with the Treaty on European Union, nor
the conversion of any Borrowers' Obligations under the Credit Documents
from an Available EMU Currency, or National Currency Units, into euro,
shall require the early termination of this Credit Agreement or the
prepayment of any amount due under the Credit Documents or create any
liability of one party to another party for any direct or consequential
loss arising from any of such events.
(iii) Currency Translations; Rounding. Any translation from
one currency or currency unit to another shall be at the rate specified
herein or, if not so specified, then at the official rate of exchange
legally recognized by the central bank of the country issuing such
currency for the conversion of that currency or currency unit into the
other. Any such translation shall be rounded up or down by the Agent
acting in accordance with any applicable law on rounding or, if there
is no such law, acting reasonably in accordance with its market
practice.
42
(iv) Changes in Currency. If a change in any currency of a
country occurs, this Agreement will be amended to the extent the Agent
(acting reasonably) specifies to be necessary to reflect the change in
currency and to put the parties hereto in the same position, as far as
possible, that they would have been in if no change in currency had
occurred; provided that any such amendments will not adversely affect
the Lenders.
2.6 Foreign Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, the Lenders will participate
in the issuance by the Issuing Lender, from time to time and in any
Available Foreign Currency, of such Foreign Letters of Credit from the
date five (5) Business Days subsequent to the Closing Date until the
date five (5) Business Days prior to the Termination Date as ▇▇▇▇
Europe or ▇▇▇▇ BV may request, in a form acceptable to the Issuing
Lender; provided, however, that (i) the Dollar Amount (as determined as
of the most recent Determination Date) of the Foreign LOC Obligations
outstanding shall not at any time exceed TEN MILLION DOLLARS
($10,000,000) (the "Foreign LOC Committed Amount"), (ii) the sum of the
Dollar Amount (as determined as of the most recent Determination Date)
of the aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not at
any time exceed the aggregate Foreign Currency Committed Amount and
(iii) the sum of the aggregate principal amount of outstanding
Revolving Loans plus Domestic LOC Obligations outstanding plus the
aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans plus the
Dollar Amount (as determined as of the most recent Determination Date)
of the aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not at
any time exceed the aggregate Revolving Committed Amount. No Foreign
Letter of Credit shall (x) have an original expiry date more than one
year from the date of issuance or (y) as originally issued or as
extended, have an expiry date extending beyond the Termination Date.
Each Foreign Letter of Credit shall comply with the related LOC
Documents. The issuance and expiry date of each Foreign Letter of
Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a
Foreign Letter of Credit shall be submitted by the applicable Borrower
to the Issuing Lender at least three (3) Business Days prior to the
requested date of issuance. The Issuing Lender will, at least quarterly
and more frequently upon request, disseminate to each of the Lenders
and the applicable Borrower a detailed report specifying the Foreign
Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the
beneficiary, the face amount, expiry date as well as any payment or
expirations which may have occurred.
43
(c) Participation. Each Lender, upon issuance of a Foreign
Letter of Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Foreign Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such
Foreign Letter of Credit (based on the respective Commitment
Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay in the same Available Foreign Currency as such Foreign
Letter of Credit to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Foreign Letter
of Credit. Without limiting the scope and nature of each Lender's
participation in any Foreign Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed as required under the Credit
Agreement or under any such Foreign Letter of Credit, each such Lender
shall pay to the Issuing Lender in the same Available Foreign Currency
as such Foreign Letter of Credit its pro rata share of such
unreimbursed drawing in same day funds on the date five (5) Business
Days after notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence
of a Default, an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the obligation
of ▇▇▇▇ Europe or ▇▇▇▇ BV to reimburse the Issuing Lender under any
applicable Foreign Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Foreign Letter of Credit, the Issuing Lender will promptly notify the
applicable Borrower. Each of ▇▇▇▇ Europe and ▇▇▇▇ BV promises to
reimburse the Issuing Lender on or prior to the date that is three (3)
Business Days after the day of any drawing under any applicable Foreign
Letter of Credit (the "Reimbursement Date") an amount equal to such
drawing in same day funds. Unless the applicable Borrower shall
immediately notify the Issuing Lender that such Borrower intends to
otherwise reimburse the Issuing Lender for such drawing, such Borrower
shall be deemed to have requested that the Lenders make a Foreign
Currency Loan in the amount of the drawing as provided in subsection
(f) hereof on the related Foreign Letter of Credit on the applicable
Reimbursement Date, the proceeds of which will be used to satisfy the
related reimbursement obligations. The unreimbursed amount of any
drawing under a Foreign Letter of Credit shall, subject to the terms of
Section 3.1, bear interest from and including the date of drawing until
but excluding the date of reimbursement at a per annum rate equal to
the Interim Foreign Currency Rate plus the Applicable Margin applicable
to Eurodollar Loans. ▇▇▇▇ Europe's and ▇▇▇▇ BV's reimbursement
obligations under the Credit Agreement shall be absolute and
unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment such Borrower may claim or
have against the Issuing Lender, the Agent, the Lenders, the
44
beneficiary of the Foreign Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure
of such Borrower or any other Credit Party to receive consideration or
the legality, validity, regularity or unenforceability of the Foreign
Letter of Credit. The Issuing Lender will promptly notify the other
Lenders of the amount of any unreimbursed drawing and each Lender shall
promptly pay, on the Reimbursement Date, to the Agent for the account
of the Issuing Lender in the same Available Foreign Currency as such
Foreign Letter of Credit and in immediately available funds, the amount
of such Lender's pro rata share of such unreimbursed drawing. If such
Lender does not pay such amount to the Issuing Lender in full upon such
request, such Lender shall, on demand, pay to the Agent for the account
of the Issuing Lender interest on the unpaid amount during the period
from the Reimbursement Date until such Lender pays such amount to the
Issuing Lender in full at a rate per annum equal to the Interim Foreign
Currency Rate. Each Lender's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of the
Credit Agreement or the Commitments, the existence of a Default or
Event of Default or the acceleration of the obligations of ▇▇▇▇ Europe
or ▇▇▇▇ BV, as the case may be, under the Credit Documents and shall be
made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a
Lender to the Issuing Lender, such Lender shall, automatically and
without any further action on the part of the Issuing Lender or such
Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the related unreimbursed drawn portion of the
Foreign LOC Obligation and in the interest thereon and in the related
LOC Documents, and shall have a claim against ▇▇▇▇ Europe or ▇▇▇▇ BV,
as applicable, with respect thereto.
(e) Interim Interest. In the event of any drawing under any
Foreign Letter of Credit, unless ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable,
shall reimburse the Issuing Lender for such drawing in full on such
date, the unpaid amount of such drawing shall bear interest for the
account of the Issuing Lender at the Interim Foreign Currency Rate plus
the Applicable Margin applicable to Eurodollar Loans. Interest shall
accrue for each day from and including the date of any drawing under
any Foreign Letter of Credit to, but excluding, the date of payment in
full of such drawing (including by way of a Foreign Currency Loan
pursuant to subsection (f) hereof).
(f) Repayment with Foreign Currency Loans. On any day on which
▇▇▇▇ Europe or ▇▇▇▇ BV, as the case may be, shall have requested, or
been deemed to have requested, a Foreign Currency Loan advance to
reimburse a drawing under a Foreign Letter of Credit, the Agent shall
give notice to the Lenders that a Foreign Currency Loan has been
requested or deemed requested by such Borrower to be made in connection
with a drawing under a Foreign Letter of Credit, in which case a
Foreign Currency Loan advance shall be made to such Borrower by all
Lenders on the respective Reimbursement Date (notwithstanding any
45
termination of the Commitments pursuant to Section 9.2) pro rata based
on the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to
Section 9.2) and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the respective Foreign LOC
Obligations. Each such Lender hereby irrevocably agrees to make its pro
rata share of each such Foreign Currency Loan immediately upon any such
request or deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of
such borrowing may not comply with the minimum amount for advances of
Foreign Currency Loans otherwise required under the Credit Agreement,
(ii) whether any conditions specified in Section 5.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for Foreign
Currency Loans to be made by the time otherwise required under the
Credit Agreement, (v) whether the date of such borrowing is a date on
which Foreign Currency Loans are otherwise permitted to be made under
the Credit Agreement, (vi) any rights that such Lender may have in
respect of such Foreign Currency Loans under Section 3.7, or (vii) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Foreign
Currency Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
the applicable Borrower or any other Credit Party), then each such
Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any
payments received from ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable, on or
after such date and prior to such purchase) from the Issuing Lender in
the same Available Foreign Currency as such Foreign Letter of Credit
such participation in the outstanding Foreign LOC Obligations as shall
be necessary to cause each such Lender to share in such Foreign LOC
Obligations ratably (based upon the respective Commitment Percentages
of the Lenders (determined before giving effect to any termination of
the Commitments pursuant to Section 9.2)), provided that at the time
any purchase of participation pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay to the Issuing
Lender, to the extent not paid to the Issuer by the applicable Borrower
in accordance with the terms of subsection (d) hereof, interest on the
principal amount of participation purchased for each day from and
including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation,
at the rate equal to the Interim Foreign Currency Rate.
(g) Renewal, Extension. The renewal or extension of any
Foreign Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Foreign Letter of Credit.
(h) Uniform Customs and Practices. The Issuing Lender may have
the Foreign Letters of Credit be subject to the UCP or the ISP98, in
either case as published as of the date of issue by the International
Chamber of Commerce, in which case the UCP or ISP98, as applicable, may
be incorporated therein and deemed in all respects to be a part
thereof.
46
(i) Indemnification; Nature of Issuing Lender's Duties. (i) In
addition to its other obligations under this Section 2.6, each of ▇▇▇▇
Europe and ▇▇▇▇ BV hereby agrees to protect, indemnify, pay and save
the Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Issuing Lender may
incur or be subject to as a consequence, direct or indirect, of (A) the
issuance of any Foreign Letter of Credit requested by such Borrower or
(B) the failure of the Issuing Lender to honor a drawing under a
Foreign Letter of Credit issued by such Borrower as a result of any act
or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between ▇▇▇▇ Europe, ▇▇▇▇ BV and the Issuing Lender,
each of ▇▇▇▇ Europe and ▇▇▇▇ BV shall assume all risks of the acts,
omissions or misuse of any applicable Foreign Letter of Credit by the
beneficiary thereof. The Issuing Lender shall not be responsible: (A)
for the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and issuance of any Foreign Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the validity or
sufficiency of any instrument transferring or assigning or purporting
to transfer or assign any Foreign Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Foreign Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers under Credit Agreement.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any Foreign
Letter of Credit or the related certificates, if taken or omitted in
good faith, shall not put such Issuing Lender under any resulting
liability to ▇▇▇▇ Europe, ▇▇▇▇ BV or any other Credit Party. It is the
intention of the parties that the Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender against any and
all risks involved in the issuance of the Foreign Letters of Credit,
all of which risks are hereby assumed by ▇▇▇▇ Europe or ▇▇▇▇ BV, as
applicable, (on behalf of itself and each of the other Credit Parties),
including, without limitation, any and all Government Acts. The Issuing
Lender shall not, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Foreign Letter of
Credit as a result of any Government Acts or any other cause beyond the
control of the Issuing Lender.
47
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of ▇▇▇▇ Europe or ▇▇▇▇ BV contained in
subsection (d) above. The obligations of ▇▇▇▇ Europe and ▇▇▇▇ BV under
this subsection (i) shall survive the termination of the Credit
Agreement. No act or omissions of any current or prior beneficiary of a
Foreign Letter of Credit shall in any way affect or impair the rights
of the Issuing Lender to enforce any right, power or benefit under the
Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), neither ▇▇▇▇ Europe nor ▇▇▇▇ BV shall have no
obligation to indemnify the Issuing Lender in respect of any liability
incurred by the Issuing Lender (A) arising solely out of the gross
negligence or willful misconduct of the Issuing Lender or (B) caused by
the Issuing Lender's unlawful failure to pay under any Foreign Letter
of Credit.
(j) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender under
the Credit Agreement to the Lenders are only those expressly set forth
in the Credit Agreement and that the Issuing Lender shall be entitled
to assume that the conditions precedent set forth in Section 5.2 have
been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.6 shall be deemed to prejudice
the right of any Lender to recover from the Issuing Lender any amounts
made available by such Lender to the Issuing Lender pursuant to this
Section 2.6 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Foreign Letter of
Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between the Credit Agreement and any LOC Document, the Credit Agreement
shall control.
(l) Introduction of Euro.
(i) Foreign Letters of Credit Issued in National Currency
Units. Prior to the Transition Period Cutoff Date, Foreign Letters of
Credit may be issued in National Currency Units of the Available EMU
Currency designated by the applicable Borrower in its request for
issuance of a Foreign Letter of Credit pursuant to Section 2.6(b).
Reimbursements of drawings under Foreign Letters of Credit that were
issued in National Currency Units pursuant to this Section shall be
made in such National Currency Units; provided, however, that any
Foreign Letter of Credit that is (A) denominated in National Currency
Units and (B) outstanding as of the Transition Period Cutoff Date shall
be automatically redenominated into euro as of the close of business on
such date at the applicable Irrevocable Conversion Rate; and provided
further that the reimbursement of all drawings under such Foreign
Letters of Credit made after the Transition Period Cutoff Date shall be
denominated in euro. After the Transition Period Cutoff Date, Foreign
Letters of Credit shall no longer be issued in National Currency Units.
48
(ii) Conversions to Euro. For the avoidance of doubt, the
parties hereto affirm and agree that neither the fixation of the
conversion rate of an Available EMU Currency against the euro as a
single currency, in accordance with the Treaty on European Union, nor
the conversion of any Borrowers' Obligations under the Credit Documents
from an Available EMU Currency, or National Currency Units, into euro,
shall require the early termination of this Credit Agreement or the
prepayment of any amount due under the Credit Documents or create any
liability of one party to another party for any direct or consequential
loss arising from any of such events.
(iii) Currency Translations; Rounding. Any translation from
one currency or currency unit to another shall be at the rate specified
herein or, if not so specified, then at the official rate of exchange
legally recognized by the central bank of the country issuing such
currency for the conversion of that currency or currency unit into the
other. Any such translation shall be rounded up or down by the Agent
acting in accordance with any applicable law on rounding or, if there
is no such law, acting reasonably in accordance with its market
practice.
(iv) Changes in Currency. If a change in any currency of a
country occurs, this Agreement will be amended to the extent the Agent
(acting reasonably) specifies to be necessary to reflect the change in
currency and to put the parties hereto in the same position, as far as
possible, that they would have been in if no change in currency had
occurred; provided that any such amendments will not adversely affect
the Lenders.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing under the Credit Agreement or under the other
Credit Documents shall bear interest, payable on demand, at a per annum rate 2%
greater than the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then 2%
greater than the Base Rate).
3.2 Extension and Conversion.
Subject to the terms of Section 5.2, the Borrowers shall have the
option, on any Business Day, to extend existing Loans into a subsequent
permissible Interest Period or to convert Loans into Loans of another type;
provided, however, that (i) except as provided in Section 3.8, Revolving Loans
that are Eurodollar Loans may be converted into Base Rate Loans only on the last
day of the Interest Period applicable thereto, (ii) Eurodollar Loans may be
extended, and Revolving Loans that are Base Rate Loans may be converted into
Eurodollar Loans, only if no Default or Event of Default is in existence on the
49
date of extension or conversion, (iii) Loans extended as, or Revolving Loans
converted into, Eurodollar Loans shall be subject to the terms of the definition
of "Interest Period" set forth in Section 1.1 and shall be in such minimum
amounts as provided in Section 2.1(b)(ii), (iv) no more than 12 separate
Eurodollar Loans shall be outstanding under the Credit Agreement at any time;
provided, that for purposes hereof, Eurodollar Loans with different Interest
Periods and/or in different currencies shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a new Eurodollar
Loan with a single Interest Period and in the same currency, (v) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month and (vi) Competitive Loans and Swingline Loans may not be extended or
converted pursuant to this Section 3.2. Each such extension or conversion shall
be effected by the appropriate Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Agent prior to 11:00 A.M., local time in the place where such Loan was initially
advanced, on the Business Day of, in the case of the conversion of a Revolving
Loan that is a Eurodollar Loan into a Base Rate Loan, and on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Revolving Loan that is a Base Rate Loan into, a Eurodollar Loan,
the date of the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or converted, the
types of Loans into which such Loans are to be converted and, if appropriate,
the applicable Interest Periods with respect thereto. Each request for extension
or conversion shall constitute a representation and warranty by the requesting
Borrower of the matters specified in subsections (ii), (iii), (iv) and (v) of
Section 5.2(a). In the event a Borrower fails to request extension or conversion
of any Eurodollar Loan in accordance with this Section, or any such conversion
or extension is not permitted or required by this Section, then (i) in the case
of any Eurodollar Loan that is a Revolving Loan, such Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto and (ii) in the case of any Eurodollar Loan which is a
Foreign Currency Loan, such Loan shall be automatically continued as a
Eurodollar Loan for an Interest Period of one month. The Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan. A Foreign Currency Loan in one Available Foreign
Currency may not be converted to a Foreign Currency Loan in another Available
Foreign Currency pursuant to this Section 3.2.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the Agent and
specifying the applicable Loans to be prepaid; (ii) any prepayment of
Eurodollar Loans, Competitive Loans or Quoted Rate Swingline Loans will
be subject to Section 3.11; and (iii) each such partial prepayment of
Loans shall be in a minimum principal amount of (A) in the case of
Revolving Loans, Competitive Loans and Foreign Currency Loans,
$2,000,000 (or the Foreign Currency Equivalent thereof) and integral
multiples of $1,000,000 (or the Foreign Currency Equivalent thereof) in
excess thereof and (B) in the case of Swingline Loans, $100,000 and
integral multiples of $50,000 in excess thereof. Subject to the
50
foregoing terms, amounts prepaid under the Credit Agreement shall be
applied as the prepaying Borrower may elect; provided that, with
respect to Revolving Loans, if ▇▇▇▇ fails to specify a voluntary
prepayment then such prepayment shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
(b) Mandatory Prepayments.
(i) If at any time (including, without limitation, on
any Determination Date), (A) the sum of the aggregate amount of
outstanding Revolving Loans plus Domestic LOC Obligations outstanding
plus the aggregate principal amount of outstanding Competitive Loans
plus the aggregate principal amount of outstanding Swingline Loans plus
the Dollar Amount (as determined as of the most recent Determination
Date) of the aggregate principal amount of outstanding Foreign Currency
Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall exceed
the Revolving Committed Amount or (B) the aggregate principal amount of
outstanding Competitive Loans shall exceed the Competitive Loan Maximum
Amount, ▇▇▇▇ promises to prepay, or cause ▇▇▇▇ Europe or ▇▇▇▇ BV to
prepay, immediately the outstanding principal balance on the Revolving
Loans, Foreign Currency Loans, Swingline Loans and/or Competitive Loans
in an amount sufficient to eliminate such excess.
(ii) If on any Determination Date, the sum of the Dollar
Amount of the aggregate Foreign Currency Loans outstanding plus the
Dollar Amount of Foreign LOC Obligations outstanding exceeds (as the
result of fluctuations in applicable foreign exchange rates or
otherwise) then Foreign Currency Committed Amount, ▇▇▇▇ Europe or ▇▇▇▇
BV, as applicable, promises to make a mandatory prepayment of the
applicable Foreign Currency Loans to the Agent in an aggregate Dollar
Amount equal to the excess of
(x) the amount equal to the sum of the Dollar Amount
of the aggregate Foreign Currency Loans outstanding plus the
Dollar Amount of Foreign LOC Obligations outstanding
over
(y) the Foreign Currency Committed Amount.
(iii) Upon the occurrence of any Excess Sale Event, ▇▇▇▇
shall, immediately following the related Application Period, prepay the
Loans in an amount equal to the Excess Sale Proceeds not applied (or
caused to be applied) by ▇▇▇▇ during the related Application Period to
the purchase, acquisition or construction of Alternative Assets as
contemplated by the terms of Section 8.4(b)(iv)(B)(1) multiplied by the
percentage determined by dividing (1) the then current Revolving
Committed Amount by (2) the sum of (I) the then current Revolving
Committed Amount plus (II) if the Senior Noteholders shall require ▇▇▇▇
to prepay the Senior Notes with any such Excess Sale Proceeds, the
aggregate then outstanding principal amount of all Senior Notes.
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(iv) To the extent that the aggregate cumulative amount of
cash (including cash received in respect of non-cash consideration) Net
Proceeds from Equity Transactions received by ▇▇▇▇ or any of its
Subsidiaries during any fiscal year exceeds $500,000, ▇▇▇▇ shall,
within 60 days of receipt of any such Net Proceeds at any time that the
Consolidated Leverage Ratio as of the most recent fiscal quarter end
with respect to which the Agent shall have received the Required
Financial Information is greater than 2.50 to 1.00, prepay the Loans in
an amount equal to 50% of the portion of such cash Net Proceeds
exceeding $500,000 not applied by ▇▇▇▇ within such 60 day period to pay
the purchase price in connection with any acquisition permitted by the
terms of Section 8.4(c).
(c) General. All prepayments made pursuant to this Section 3.3
shall be subject to Section 3.11, shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order, shortest to
longest, of Interest Period maturities and shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment and all other amounts due and payable under the Credit
Agreement with respect to such Loans. Amounts prepaid may be reborrowed
in accordance with the provisions hereof.
3.4 Termination and Reduction of Revolving Committed Amount.
(a) Voluntary Reductions. ▇▇▇▇ may from time to time permanently
reduce or terminate the Revolving Committed Amount in whole or in part
(in minimum aggregate amounts of $5,000,000 or in integral multiples of
$1,000,000 in excess thereof (or, if less, the full remaining amount of
the then applicable Revolving Committed Amount)) upon three Business
Days' prior written notice to the Agent; provided, however, no such
termination or reduction shall be made which would reduce the Revolving
Committed Amount to an amount less than the aggregate principal amount
of outstanding Revolving Loans plus Domestic LOC Obligations
outstanding plus the aggregate principal amount of outstanding
Competitive Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the Dollar Amount (as determined as of the most
recent Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding. The Agent shall promptly notify each of the
Lenders of receipt by the Agent of any notice from ▇▇▇▇ pursuant to
this Section 3.4(a).
(b) Mandatory Reductions.
(i) On any date that the Revolving Loans are required to be
prepaid or the Revolving Commitments are required to be reduced
pursuant to the terms of Section 3.3(b)(iii) or (iv), the
Revolving Committed Amount automatically shall be permanently
reduced by the amount of such required prepayment.
(ii) On any date that ▇▇▇▇ shall enter into a Permitted
Receivables Financing, the Revolving Committed Amount
automatically shall be permanently reduced by the facility
commitment amount of such Permitted Receivables Financing.
52
(c) Termination Date. The Commitments of the Lenders and the
Issuing Lender shall automatically terminate on the Termination Date.
3.5 Fees.
(a) Unused Fee. In consideration of the Revolving Commitments of
the Lenders, ▇▇▇▇ agrees to pay to the Agent for the account of each
Lender a fee (the "Unused Fee") on such Lender's Commitment Percentage
of the Unused Revolving Committed Amount computed at a per annum rate
for each day during the applicable Unused Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Margin in
effect from time to time. The Unused Fee shall commence to accrue on
the Closing Date and shall be due and payable in arrears on the
fifteenth (15th) day of each January, April, July and October (and the
Termination Date) for the immediately preceding fiscal quarter (or
portion thereof) (each such fiscal quarter or portion thereof for which
the Unused Fee is payable under the Credit Agreement being referred to
as an "Unused Fee Calculation Period"), beginning with the first of
such dates to occur after the Closing Date.
(b) Letter of Credit Fees.
(i) Issuance Fee. In consideration of the issuance of
standby Letters of Credit, each Borrower promises to pay to the
Agent for the account of the Lenders a fee (the "Standby Letter
of Credit Fee") on the average daily maximum amount available to
be drawn under each such standby Letter of Credit computed at a
per annum rate for each day from the date of issuance to the date
of expiration equal to the Applicable Margin for the Standby
Letter of Credit Fee. The Standby Letter of Credit Fee will be
payable quarterly in arrears on the last day of each March, June,
September and December for the immediately preceding fiscal
quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In consideration of
the issuance of trade Letters of Credit, each Borrower promises
to pay to the Agent for the account of the Lenders a fee (the
"Trade Letter of Credit Fee") of 15 basis points on the amount of
each drawing under any such trade Letter of Credit. The Trade
Letter of Credit Fee will be payable on each date of drawing
under a trade Letter of Credit.
(iii) Issuing Lender Fees. In addition to the Standby Letter
of Credit Fee payable pursuant to clause (i) above and the Trade
Letter of Credit Fee payable pursuant to clause (ii) above, each
Borrower promises to pay to the Issuing Lender for its own
account without sharing by the other Lenders (A) a letter of
credit fronting fee of 12.5 basis points on the average daily
maximum amount available to be drawn under each Letter of Credit
computed at a per annum rate for each day from the date of
53
issuance to the date of expiration payable quarterly in arrears
on the last day of each March, June, September and December for
the immediately preceding fiscal quarter (or a portion thereof)
and (B) the customary charges from time to time of the Issuing
Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing Lender
Fees").
(c) Administrative Fees. ▇▇▇▇ agrees to pay to the Agent, for its
own account and for the account of Banc of America Securities LLC, as
applicable, the fees referred to in the Agent's Fee Letter
(collectively, the "Agent's Fees").
(d) Competitive Bid Request Fee. ▇▇▇▇ shall make payment to the
Agent for each Competitive Bid Request of a Competitive Bid
administrative fee (the "Competitive Bid Request Fee") of $1500
concurrently with delivery of any Competitive Bid Request (whether or
not any Competitive Bid is offered by a Lender or accepted by ▇▇▇▇ and
whether or not any Competitive Loan is extended by any Lender in
connection with such Competitive Bid Request).
3.6 Capital Adequacy.
If, after the Closing Date, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations under the Credit Agreement to a level below that which such Lender
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender's policies with respect to capital
adequacy), then, upon notice and detailed explanation from such Lender to the
applicable Borrower, such Borrower shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
Each determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 Unavailability.
(a) If prior to the first day of any Interest Period, the Agent
shall have determined (which determination shall be conclusive and
binding upon the Borrowers) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the Agent
shall give telecopy or telephonic notice thereof to the Borrowers and
the Lenders as soon as practicable thereafter. If such notice is given
(i) in respect of any Eurodollar Loans which are Revolving Loans, (A)
such Loans requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (B) any such Loans that were
to have been converted on the first day of such Interest Period to or
54
continued as Eurodollar Loans shall be converted to or continued as
Base Rate Loans and (C) any such Loans which are Revolving Loans shall
be converted, on the first day of such Interest Period, to Base Rate
Loans and (ii) in respect of any Eurodollar Loans which are Foreign
Currency Loans, (A) any such Loans requested to be made on the first
day of such Interest Period shall be deemed rescinded and (B) any such
Loans shall be repaid in full by ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable,
on the first day of such Interest Period. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall ▇▇▇▇ have the right to convert Base Rate
Loans to Eurodollar Loans.
(b) If prior to the first day of any Interest Period, the Agent
shall have determined (which determination shall be conclusive and
binding upon the Borrowers) that deposits in any Available Foreign
Currency are not available in the relevant market to any Lender, the
Agent shall give telecopy or telephonic notice thereof to ▇▇▇▇ Europe,
▇▇▇▇ BV and the Lenders as soon as practicable thereafter. If such
notice is given, (i) any Foreign Currency Loans denominated in such
Available Foreign Currency requested to be made on the first day of
such Interest Period shall be deemed rescinded and (ii) any outstanding
Foreign Currency Loans denominated in such Available Foreign Currency
shall be repaid in full by ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable, on
the first day of such Interest Period. Until such notice has been
withdrawn by the Agent, no further Foreign Currency Loans denominated
in such Available Foreign Currency shall be made or continued, and no
Foreign Letters of Credit denominated in such Available Foreign
Currency shall be issued or extended.
(c) If prior to the issuance of any Foreign Letter of Credit, the
Agent shall have determined (which determination shall be conclusive
and binding upon ▇▇▇▇ Europe and ▇▇▇▇ BV) that, with respect to the
requested Foreign Letter of Credit, the applicable Available Foreign
Currency in the amount of any Lender's participation interest in such
Foreign Letter of Credit is not, and/or during the term of such Foreign
Letter of Credit will not be, available to any such Lender, then (i)
the Agent shall notify ▇▇▇▇ Europe, ▇▇▇▇ BV and the Lenders of such
circumstances and (ii) the Issuing Lender shall have no obligation to
issue, and the Lenders shall have no obligation to participate in, such
Foreign Letter of Credit.
3.8 Illegality.
(a) Notwithstanding any other provision in the Credit Agreement,
if (i) the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof occurring after the Closing
Date shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Foreign Currency Loans or issue or extend Foreign
Letters of Credit or (ii) there shall have occurred any change in
national or international financial, political or economic conditions
(including the imposition of or any change in exchange controls) or
currency exchange rates which would make it impracticable for any
Lender to make Loans or issue Foreign Letters of Credit denominated in
any Available Foreign Currency to ▇▇▇▇ Europe or ▇▇▇▇ BV, as
contemplated by the Credit Agreement, then, by written notice to the
Borrowers and the Agent (which notice shall be withdrawn whenever such
circumstances no longer exist):
55
(A) such Lender may declare that Eurodollar Loans,
Foreign Currency Loans or Foreign Letters of Credit in the
affected currency or currencies, as the case may be, will not
thereafter (for the duration of such unlawfulness or
impracticability) be made or issued by such Lender under the
Credit Agreement, whereupon any request for a Eurodollar Loan,
Foreign Currency Loan or Foreign Letter of Credit in the
affected currency or currencies, as the case may be, shall, as
to such Lender only, (1) if such Loan is not a Foreign
Currency Loan, be deemed a request for a Base Rate Loan,
unless such declaration shall be subsequently withdrawn, (2)
if such Loan is a Foreign Currency Loan, be deemed to have
been withdrawn, unless such declaration shall be subsequently
withdrawn and (3) in the case of a Foreign Letter of Credit,
be deemed to have been withdrawn, unless such declaration
shall be subsequently withdrawn; and
(B) such Lender may require that all outstanding
Eurodollar Loans or Foreign Currency Loans in the affected
currency or currencies, as the case may be, made by it be (1)
if such Loans are not Foreign Currency Loans, converted to
Base Rate Loans, in which event all such Eurodollar Loans
shall be automatically converted to Base Rate Loans as of the
effective date of such notice as provided in paragraph (b)
below or (2) if such Loans are Foreign Currency Loans, repaid
immediately, in which event all such Foreign Currency Loans in
the affected currency or currencies shall be required to be
repaid in full by ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable, as of
the effective date of such notice as provided in paragraph (b)
below.
(b) If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with
respect thereto, the affected Borrower(s) shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 3.11.
3.9 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or 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, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever
with respect to any Letter of Credit, any Eurodollar Loans made by it
or its obligation to make Eurodollar Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 3.10 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 3.10(b)) and changes in taxes
measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
56
(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 which is not otherwise included in the
determination of the Eurodollar Rate under the Credit Agreement; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable under the Credit Agreement
in respect thereof, then, in any such case, upon notice to the applicable
Borrower from such Lender, through the Agent, in accordance therewith, the
applicable Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable, provided that, in any such case,
▇▇▇▇ may elect to convert the Revolving Loans which are Eurodollar Loans and
made by such Lender under the Credit Agreement to Base Rate Loans by giving the
Agent at least one Business Day's notice of such election, in which case ▇▇▇▇
shall promptly pay to such Lender, upon demand, without duplication, such
amounts, if any, as may be required pursuant to Section 3.11. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the applicable Borrower, through the
Agent, certifying (x) that one of the events described in this paragraph (a) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to a Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of the
Credit Agreement and the payment of the Loans and all other amounts payable
under the Credit Agreement.
3.10 Taxes.
(a) Except as provided below in this subsection, all payments
made by a Borrower under the Credit Agreement shall be made free and
clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or after the
Closing Date imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed in
lieu of net income taxes, imposed: (i) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
57
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, the Credit Agreement. If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Agent or any Lender under the Credit Agreement, (A) the
amounts so payable to the Agent or such Lender shall be increased to
the extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts
payable under the Credit Agreement at the rates or in the amounts
specified in the Credit Agreement, provided, however, that each
Borrower shall be entitled to deduct and withhold any Non-Excluded
Taxes and shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of
America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by a Borrower, and (B) as promptly as
possible thereafter the applicable Borrower shall send to the Agent for
its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by such
Borrower showing payment thereof. If a Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by the Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the
termination of the Credit Agreement and the payment of the Loans and
all other amounts payable under the Credit Agreement.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by a
Borrower under the Credit Agreement to such Lender, deliver to
▇▇▇▇ and the Agent (A) two (2) duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, certifying that
it is entitled to receive payments under the Credit Agreement
without deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form W-8 or
W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United
States backup withholding tax;
(ii) deliver to ▇▇▇▇ and the Agent two (2) further
copies of any such form or certification on or before the date
that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to
▇▇▇▇; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by ▇▇▇▇ or the Agent; or
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(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to ▇▇▇▇ (for the benefit of ▇▇▇▇ and the Agent) that it is
not a bank within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (ii) agree to furnish to ▇▇▇▇ on or before the date of
any payment by ▇▇▇▇, with a copy to the Agent two (2) accurate and
complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under the Credit
Agreement (and to deliver to ▇▇▇▇ and the Agent two (2) further copies
of such form on or before the date it expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of time
reasonably requested by ▇▇▇▇ or the Agent for filing and completing
such forms), and (iii) agree, to the extent legally entitled to do so,
upon reasonable request by ▇▇▇▇, to provide to ▇▇▇▇ (for the benefit of
▇▇▇▇ and the Agent) such other forms as may be reasonably required in
order to establish the legal entitlement of such Lender to an exemption
from withholding with respect to payments under the Credit Agreement;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender under the Credit
Agreement which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises ▇▇▇▇ and the Agent.
(c) Each Lender shall, as soon as is reasonably practicable after
the Closing Date, file a form FD 13 with the United States Internal
Revenue Service in relation to payments made or to be made by ▇▇▇▇
Europe or ▇▇▇▇ BV under this Credit Agreement. If the United States
Internal Revenue Service determines that the form FD 13 filed by such
Lender does not establish that the Lender is entitled to receive
payments made by ▇▇▇▇ Europe or ▇▇▇▇ BV under this Credit Agreement as
at the date of delivery thereof without deduction or withholding of
United Kingdom withholding taxes or, if the UK Inland Revenue requires
proof of such entitlement, such Lender shall, within forty-five (45)
days after a written request from ▇▇▇▇ Europe or ▇▇▇▇ BV, offer such
reasonable assistance as ▇▇▇▇ Europe or ▇▇▇▇ BV may request in order to
establish such Lender's entitlement (if any) to receive payments made
by ▇▇▇▇ Europe or ▇▇▇▇ BV under this Credit Agreement without deduction
or withholding of United Kingdom withholding taxes. Neither ▇▇▇▇ Europe
nor ▇▇▇▇ BV shall be required to pay any amounts to any Lender in
respect of any deduction or withholding of United Kingdom withholding
taxes otherwise payable under this Section 3.10 (and ▇▇▇▇ Europe and
▇▇▇▇ BV, if required by law to do so, shall be entitled to withhold
such amounts and pay such amounts to the government of the United
Kingdom) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender to provide ▇▇▇▇ Europe or
▇▇▇▇ BV with the requested forms or other reasonable assistance.
(d) Each Lender agrees to make a good faith effort to minimize
any Non-Excluded Taxes by making, funding or maintaining its Foreign
Currency Loans through another lending office located in another
jurisdiction so long as the making, funding or maintenance of such
Foreign Currency Loans through such other office does not, in the
reasonable judgment of such Lender, materially affect such Lender;
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provided that any Lender which is unable or unwilling to fund its
Foreign Currency Loans through a branch of such Lender in the United
Kingdom will so notify the Borrowers.
(e) Each Person that shall become a Lender or a participant of a
Lender pursuant to subsection 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection,
provided that in the case of a participant of a Lender the obligations
of such participant of a Lender pursuant to subsection (b) shall be
determined as if the participant of a Lender were a Lender except that
such participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the related
participation shall have been purchased.
3.11 Indemnity.
▇▇▇▇ promises to indemnify each Lender and to hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (other than
through such Lender's gross negligence or willful misconduct) as a consequence
of (a) default by a Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans or Quoted Rate Swingline Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of the Credit Agreement, (b) default by a Borrower in making any
prepayment of a Eurodollar Loan or Quoted Rate Swingline Loan after such
Borrower has given a notice thereof in accordance with the provisions of the
Credit Agreement or (c) the making by a Borrower of a prepayment of Eurodollar
Loans or Quoted Rate Swingline Loans on a day which is not the last day of an
Interest Period with respect thereto. With respect to Eurodollar Loans, such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount 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
the applicable 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) in each case at the applicable rate of interest for such Eurodollar
Loans provided for in the Credit Agreement(excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. The covenants of ▇▇▇▇ set forth in
this Section 3.11 shall survive the termination of the Credit Agreement and the
payment of the Loans and all other amounts payable under the Credit Agreement.
3.12 Pro Rata Treatment.
Except to the extent otherwise provided in the Credit Agreement:
(a) Loans. Each Loan, each payment or prepayment of principal of
any Loan or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Loans or
reimbursement obligations arising from drawings under Letters of
Credit, each payment of Unused Fees, each payment of the Standby Letter
of Credit Fee, each payment of the Trade Letter of Credit Fee, each
reduction of the Revolving Committed Amount and each conversion or
60
extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Loans and Participation Interests. With respect to Competitive Loans,
if ▇▇▇▇ fails to specify the particular Competitive Loan or Loans as to
which any payment or other amount should be applied and it is not
otherwise clear as to the particular Competitive Loan or Loans to which
such payment or other amounts relate, or any such payment or other
amount is to be applied to Competitive Loans without regard to any such
direction by ▇▇▇▇, then each payment or prepayment of principal on
Competitive Loans and each payment of interest or other amount on or in
respect of Competitive Loans, shall be allocated pro rata among the
relevant Competitive Loan Lenders in accordance with the then
outstanding amounts of their respective Competitive Loans.
(b) Advances. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Commitment Percentage of such
borrowing available to the Agent, the Agent may assume that such Lender
is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to the appropriate
Borrower a corresponding amount. If such amount is not made available
to the Agent by such Lender within the time period specified therefor
under the Credit Agreement, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the
Federal Funds Rate (or, in the case of a Foreign Currency Loan, the
Interim Foreign Currency Rate) for the period until such Lender makes
such amount immediately available to the Agent. A certificate of the
Agent submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
If such Lender's Commitment Percentage of such borrowing is not made
available to the Agent by such Lender within two Business Days of the
date of the related borrowing, (i) the Agent shall notify the
appropriate Borrower of the failure of such Lender to make such amount
available to the Agent and the Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the Credit Agreement (except in the case of any
Foreign Currency Loan, in which case, at the rate per annum applicable
to Foreign Currency Loans), on demand, from the appropriate Borrower
and (ii) then the applicable Borrower may, without waiving any rights
it may have against such Lender, borrow a like amount on an unsecured
basis from any commercial bank for a period ending on the date upon
which such Lender does in fact make such borrowing available, provided
that at the time such borrowing is made and at all times while such
amount is outstanding the applicable Borrower would be permitted to
borrow such amount pursuant to Section 2.1 or Section 2.5, as
applicable.
3.13 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under the Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
61
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in the Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in the Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrowers agree that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligations or other obligation in the amount of such
participation. Except as otherwise expressly provided in the Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to the Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate (or, in the
case of an Available Foreign Currency, the Interim Foreign Currency Rate). If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section 3.13 applies,
such Lender shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Lenders under
this Section 3.13 to share in the benefits of any recovery on such secured
claim.
3.14 Payments, Computations, Etc.
(a) Currency of Payments. Each payment on account of an amount
due from any Credit Party under the Credit Agreement or under any other
Credit Document shall be made by such Credit Party to the Agent for the
pro rata account of the Lenders entitled to receive such payment as
provided in the Credit Agreement in the currency in which such amount
is denominated. Without limiting the terms of the preceding sentence,
accrued interest on any Foreign Currency Loans and all fees owing with
respect to Foreign Letters of Credit shall be payable in the same
Available Foreign Currency as such Loans or Foreign Letters of Credit.
Upon request, the Agent will give the Credit Parties a statement
showing the computation used in calculating such amount, which
statement shall be conclusive in the absence of manifest error. The
obligation of each Credit Party to make each payment on account of such
amount in the currency in which such amount is denominated shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other currency,
except to the extent such tender or recovery shall result in the actual
receipt by the Agent of the full amount in the appropriate currency
payable under the Credit Agreement. Each Credit Party agrees that its
obligation to make each payment on account of such amount in the
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currency in which such amount is denominated shall be enforceable as an
additional or alternative claim for recovery in such currency of the
amount (if any) by which such actual receipt shall fall short of the
full amount of such currency payable under the Credit Agreement, and
shall not be affected by judgment being obtained for such amount.
(b) Place and Manner of Payments. Except as otherwise
specifically provided in the Credit Agreement, all payments under the
Credit Agreement shall be made to the Agent in immediately available
funds, without offset, deduction, counterclaim or withholding of any
kind, prior to 2:00 P.M., local time in the place where such payment is
required to be made pursuant to this subsection (b), on the date due at
the office of the Agent: at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ Center,
15th Floor, NC1-001-15-01, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with respect
to payments in Dollars; at Bank of America, N.A., Account No.
600890661010 - Swift code ▇▇▇▇▇▇▇▇ with respect to payments in British
Pounds Sterling; at Bank of America, N.A., Account No. 601090661024 -
Swift code ▇▇▇▇▇▇▇▇ with respect to payments in French Francs; at Bank
of America, N.A., Account No. 601990661059 - Swift code ▇▇▇▇▇▇▇▇, with
respect to payments in Deutsche Marks; at Bank of America, N.A.,
Account No. 954942/01/87 - Swift code ▇▇▇▇▇▇▇▇, with respect to
payments in Italian Lira; at Bank of America, N.A., Account No.
3007504500 - Swift code ▇▇▇▇▇▇▇▇, with respect to payments in Dutch
Guilders; at Bank of America, N.A., Account No. 600896283016 - Swift
code ▇▇▇▇▇▇▇▇, with respect to payments in euros, or at such other
place as may be designated by the Agent to the Borrowers in writing.
Payments received after such time shall be deemed to have been received
on the next succeeding Business Day. The Agent may (but shall not be
obligated to) debit the amount of any such payment which is not made by
such time to any ordinary deposit account of the Borrowers maintained
with the Agent (with notice to the Borrowers). Each Borrower shall, at
the time it makes any payment under the Credit Agreement, specify to
the Agent the Loans, LOC Obligations, Fees, interest or other amounts
payable by such Borrower under the Credit Agreement to which such
payment is to be applied (and in the event that it fails so to specify,
or if such application would be inconsistent with the terms of the
Credit Agreement, the Agent shall distribute such payment to the
Lenders in such manner as the Agent may determine to be appropriate in
respect of obligations owing by such Borrower under the Credit
Agreement, subject to the terms of Section 3.12(a)). The Agent will
distribute such payments to such Lenders, if any such payment is
received prior to 12:00 Noon (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such
Business Day and otherwise the Agent will distribute such payment to
such Lenders on the next succeeding Business Day. Whenever any payment
under the Credit Agreement shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for
the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next
following calendar month, then such payment shall instead be made on
the next preceding Business Day. Except as expressly provided otherwise
in the Credit Agreement, all computations of interest and fees shall be
made on the basis of actual number of days elapsed over a year of 360
days, except with respect to computation of interest on Foreign
Currency Loans denominated in Pounds Sterling and Base Rate Loans which
(unless the Base Rate is determined by reference to the Federal Funds
Rate) shall be calculated based on a year of 365 or 366 days, as
appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
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3.15 Mandatory Assignment.
In the event any Lender delivers to either Borrower any notice in
accordance with Section 3.6 or any Lender requests payment by any Borrower of
any additional amounts pursuant to Section 3.10, then, provided that no Default
or Event of Default has occurred and is continuing at such time, ▇▇▇▇ may, at
its own expense (such expense to include any transfer fee payable to the Agent
under Section 11.3(b)), and in its sole discretion require such Lender to
transfer and assign in whole or in part, without recourse (in accordance with
and subject to the terms and conditions of Section 11.3(b)), all or part of its
interests, rights and obligations under the Credit Agreement to an Eligible
Assignee which shall assume such assigned obligations, provided that (i) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority and (ii) the Borrowers or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it under the Credit Agreement and all other amounts owed to it under the
Credit Agreement.
SECTION 4
GUARANTY
4.1 The Guarantee.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender and the Agent as hereinafter provided the prompt payment of the
Borrowers' Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Borrowers' Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as mandatory cash collateralization or otherwise), the Guarantors
will, jointly and severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Borrowers' Obligations, the same will be promptly paid in full
when due (whether at extended maturity, as a mandatory prepayment, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
Notwithstanding any provision to the contrary contained in any of the
Credit Documents, to the extent the obligations of a Guarantor shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each Guarantor
under the Credit Agreement shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code).
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4.2 Obligations Unconditional.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents, or any
other agreement or instrument referred to therein, or any substitution, release
or exchange of any other guarantee of or security for any of the Borrowers'
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.2 that the obligations of the Guarantors
under the Credit Agreement shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against either Borrower or
any other Guarantor of the Borrowers' Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under the Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor under the
Credit Agreement which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Borrowers' Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of
the Credit Documents or any other agreement or instrument referred to
therein shall be done or omitted;
(iii) the maturity of any of the Borrowers' Obligations shall be
accelerated, or any of the Borrowers' Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents or any other agreement or instrument referred to
therein shall be waived or any other guarantee of any of the Borrowers'
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any Lender
or Lenders as security for any of the Borrowers' Obligations shall fail
to attach or be perfected; or
(v) any of the Borrowers' Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations under the Credit Agreement, each Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Agent or any Lender exhaust
any right, power or remedy or proceed against any Person under any of the Credit
65
Documents or any other agreement or instrument referred to therein, or against
any other Person under any other guarantee of, or security for, any of the
Borrowers' Obligations.
4.3 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Borrowers' Obligations is rescinded
or must be otherwise restored by any holder of any of the Borrowers'
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Without limiting the generality of the provisions of this Section 4,
each Guarantor hereby specifically waives the benefits of N.C. Gen.
Stat.ss.ss.26-7 through 26-9, inclusive. Each Guarantor further agrees that such
Guarantor shall have no right of recourse to security for the Borrowers'
Obligations.
4.5 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Borrowers' Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Borrowers'
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Borrowers' Obligations
being deemed to have become automatically due and payable), the Borrowers'
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of said Section 4.1.
4.6 Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence hereof and to subsection (b) below), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
66
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guaranteed
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guaranteed Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guaranteed Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor under the Credit Agreement) to (b) the amount
by which the aggregate present fair saleable value of all assets and other
properties of the applicable Borrower and all of the applicable Guarantors
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Borrower and Guarantors under the Credit Agreement) of such
Borrower and Guarantors, all as of the Closing Date (if any Guarantor becomes a
party hereto subsequent to the Closing Date, then for the purposes of this
Section 4.6 such subsequent Guarantor shall be deemed to have been a Guarantor
as of the Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor shall be
deemed true as of the Closing Date).
4.7 Continuing Guarantee.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Borrowers' Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit, whichever shall occur first, shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) The Agent shall have received original counterparts of this
Credit Agreement executed by each of the parties hereto;
(b) The Agent shall have received all documents it may reasonably
request relating to the existence and good standing of each of the
Credit Parties, the corporate or other necessary authority for and the
validity of the Credit Documents, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the
Agent;
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(c) The Agent shall have received a certificate executed by the
chief financial officer of ▇▇▇▇ as of the Closing Date stating that
immediately after giving effect to this Credit Agreement and the other
Credit Documents, (i) ▇▇▇▇ on a consolidated basis is Solvent, (ii) no
Default or Event of Default exists and (iii) the representations and
warranties set forth in Section 6 are true and correct in all material
respects;
(d) (i) The Agent shall have received a legal opinion of Drinker
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Credit Parties, dated as of
the Closing Date and in form and substance reasonably
satisfactory to the Agent;
(ii) The Agent shall have received a legal opinion of special
United Kingdom counsel for ▇▇▇▇ Europe, dated as of the Closing
Date and in form and substance reasonably satisfactory to the
Agent;
(iii) The Agent shall have received a legal opinion of
special Netherlands counsel for ▇▇▇▇ BV, dated as of the Closing
Date and in form and substance reasonably satisfactory to the
Agent.
(e) The Agent shall have received a certificate in form and
substance satisfactory to the Agent executed by the chief financial
officer of ▇▇▇▇ as of the Closing Date stating that (i) there does not
exist any action, suit or proceeding, pending or, to the best knowledge
of such Person, threatened, in which there is a reasonable possibility
of an adverse decision, which would materially adversely affect the
ability of the Credit Parties taken as a whole to perform their
obligations under the Credit Documents or the ability of the Lenders to
exercise their rights thereunder; (ii) none of the Domestic
Subsidiaries of ▇▇▇▇ has any assets or liabilities as of November 28,
1999 or any cash flows for the 12 month period ended as of November 28,
1999 other than as set forth on a schedule attached to such
certificate, except for (A) assets and cash flows of HGA, ▇▇▇▇ X-Acto
and ▇▇▇▇ Holdings, (B) liabilities of HGA to trade creditors in an
aggregate amount not exceeding $7,000,000, (C) liabilities of HGA to
the Borrower in respect of intercompany loans and advances and (D)
liabilities of ▇▇▇▇ Europe and ▇▇▇▇ BV to the Borrower in respect of
intercompany loans and advances in an aggregate principal amount not to
exceed $5,000,000; and (iii) immediately after giving effect to this
Credit Agreement, the other Credit Documents and all other transactions
contemplated by this Credit Agreement to occur on such date, (A) each
of the Credit Parties is Solvent, (B) no Default or Event of Default
exists and (C) the representations and warranties set forth in Section
6 are true and correct in all material respects;
(f) The Agent shall have received, for its own account and for
the accounts of the Lenders, all fees and expenses required by this
Credit Agreement or any other Credit Document to be paid on or before
the Closing Date; and
(g) The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the
Agent.
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5.2 Conditions to all Extensions of Credit.
The obligations of each Lender to make, convert or extend any Loan and
of the Issuing Lender to issue or extend Letters of are subject to satisfaction
of the following conditions in addition to satisfaction of the conditions set
forth in Section 5.1:
(i) The applicable Borrower shall have delivered (A) in the
case of any Revolving Loan or any Foreign Currency Loan, an
appropriate Notice of Borrowing or Notice of Extension/Conversion
or (B) in the case of any Letter of Credit, the Issuing Lender
shall have received an appropriate request for issuance in
accordance with the provisions of Section 2.2(b) or of Section
2.6(b);
(ii) The representations and warranties set forth in Section
6 shall be, subject to the limitations set forth therein, true
and correct in all material respects as of such date (except for
those which expressly relate to an earlier date);
(iii) There shall not have been commenced against either
Borrower or any Guarantor an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
after the Closing Date in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official)
of such Person or for any substantial part of its Property or for
the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall
remain undismissed, undischarged or unbonded;
(iv) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto;
(v) No material adverse change shall have occurred since
November 28, 1999 in the condition (financial or otherwise),
business, management or prospects of ▇▇▇▇ and its Subsidiaries
taken as a whole; and
(vi) Immediately after giving effect to the making of such
Loan (and the application of the proceeds thereof) or to the
issuance of such Letter of Credit, as the case may be, (A) the
sum of the aggregate principal amount of outstanding Revolving
Loans plus Domestic LOC Obligations outstanding plus the
aggregate principal amount of outstanding Competitive Loans plus
the aggregate principal amount of outstanding Swingline Loans
plus the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign
LOC Obligations outstanding shall not exceed the aggregate
Revolving Committed Amount, (B) the sum of the Dollar Amount (as
determined as of the most recent Determination Date) of the
aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall
not exceed the aggregate Foreign Currency Committed Amount and
(C) the Domestic LOC Obligations shall not exceed the Domestic
LOC Committed Amount.
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The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) or Section
2.6(b) shall constitute a representation and warranty by the requesting Borrower
of the correctness of the matters specified in subsections (ii), (iii), (iv),
(v) and (vi) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 Financial Condition.
(a) The audited consolidated balance sheet of ▇▇▇▇ and its
consolidated Subsidiaries as of November 28, 1999 and the audited
consolidated statements of earnings and statements of cash flows for
the years ended November 27, 1998 and November 28, 1999 have heretofore
been furnished to each Lender. Such financial statements (including the
notes thereto) (i) have been audited by PricewaterhouseCoopers, (ii)
have been prepared in accordance with GAAP consistently, applied
throughout the periods covered thereby and (iii) present fairly in all
material respects (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial position, results of
operations and cash flows of ▇▇▇▇ and its consolidated Subsidiaries as
of such date and for such periods. The unaudited interim balance sheets
of ▇▇▇▇ and its consolidated Subsidiaries as at the end of, and the
related unaudited interim statements of earnings and of cash flows for,
each fiscal quarterly period ended after November 28, 1999 and prior to
the Closing Date have heretofore been furnished to each Lender. Such
interim financial statements for each such quarterly period, (i) have
been prepared in accordance with the requirements of the Securities and
Exchange Commission for Form 10-Q and (ii) present fairly in all
material respects (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial position, results of
operations and cash flows of ▇▇▇▇ and its consolidated Subsidiaries as
of such date and for such periods. During the period from November 28,
1999 to and including the Closing Date, there has been no sale,
transfer or other disposition by ▇▇▇▇ or any of its Subsidiaries of any
material part of the business or property of ▇▇▇▇ and its consolidated
Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any capital stock of
any other person) material in relation to the consolidated financial
condition of ▇▇▇▇ and its consolidated Subsidiaries, taken as a whole,
in each case, which, is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed
in writing to the Lenders on or prior to the Closing Date.
(b) The projected balance sheets and income statements of ▇▇▇▇
and its consolidated Subsidiaries delivered to each Lender pursuant to
Section 7.1(d), are based upon reasonable assumptions made known to the
Lenders and upon information not known to be incorrect or misleading in
any material respect.
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6.2 No Change.
Since November 28, 1999, (a) there has been no development or event
relating to or affecting ▇▇▇▇ or any of its Subsidiaries which has had or would
be reasonably expected to have a Material Adverse Effect and (b) except as
permitted under the Credit Agreement, no dividends or other distributions have
been declared, paid or made upon the capital stock or other equity interest in
▇▇▇▇ or any of its Subsidiaries nor, except as otherwise permitted under the
Credit Agreement, has any of the capital stock or other equity interest in ▇▇▇▇
or any of its Subsidiaries been redeemed, retired, purchased or otherwise
acquired for value by such Person.
6.3 Organization; Existence; Compliance with Law.
▇▇▇▇ and each of its Subsidiaries (a) is a corporation duly organized,
validly existing and is in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has the corporate or other necessary
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, other than in such jurisdictions
where the failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect, and (d) is in compliance
with all material Requirements of Law, except to the extent that the failure to
comply therewith would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and, in the case of the Borrowers, to borrow
under the Credit Agreement, and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of the Credit Agreement and
to authorize the execution, delivery and performance of the Credit Documents to
which it is a party. As of the Closing Date, no consent or authorization of,
filing with, notice to or other similar act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Credit Party in connection with the borrowings under the
Credit Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party.
This Credit Agreement and each other Credit Document to which any Credit Party
is a party have been duly executed and delivered on behalf of the Credit
Parties. Each of this Credit Agreement and the other Credit Document to which
any Credit Party is a party constitutes a legal, valid and binding obligation of
such Credit Party enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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6.5 No Legal Bar.
The execution, delivery and performance of the Credit Documents by the
Credit Parties, the borrowings under the Credit Agreement and the use of the
proceeds thereof (a) will not violate any Requirement of Law or contractual
obligation of ▇▇▇▇ or any of its Subsidiaries in any respect that would
reasonably be expected to have a Material Adverse Effect, (b) will not result
in, or require, the creation or imposition of any Lien on any of the properties
or revenues of ▇▇▇▇ or any of its Subsidiaries pursuant to any such Requirement
of Law or contractual obligation and (c) will not violate or conflict with any
provision of any Credit Party's articles of incorporation or by-laws.
6.6 No Material Litigation.
No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best knowledge of the Credit
Parties, threatened by or against ▇▇▇▇ or any of its Subsidiaries or against any
of their respective properties or revenues which (a) relates to any of the
Credit Documents or any of the transactions contemplated thereby or (b) would be
reasonably expected to have a Material Adverse Effect.
6.7 No Default.
Neither ▇▇▇▇ nor any of its Subsidiaries is in default under or with
respect to any of its contractual obligations in any respect which would be
reasonably expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
6.8 Ownership of Property; Liens.
Each of ▇▇▇▇ and its Subsidiaries has good record and marketable title
in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien, except for
Permitted Liens.
6.9 Intellectual Property.
Each of ▇▇▇▇ and its Subsidiaries owns, or has the legal right to use,
all United States trademarks, tradenames, copyrights, technology, know-how and
processes necessary for each of them to conduct its business as currently
conducted (the "Intellectual Property") except for those the failure to own or
have such legal right to use would not be reasonably expected to have a Material
Adverse Effect. Except as provided on Schedule 6.9 (which was provided by ▇▇▇▇
on and as of the Closing Date), no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Credit Party know of any such claim, and the use of such Intellectual Property
by ▇▇▇▇ or any of its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that in the aggregate, would
not be reasonably expected to have a Material Adverse Effect.
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6.10 No Burdensome Restrictions.
Except as previously disclosed in writing to the Lenders on or prior to
the Closing Date, no Requirement of Law or contractual obligation of ▇▇▇▇ or any
of its Subsidiaries would be reasonably expected to have a Material Adverse
Effect.
6.11 Taxes.
(a) Each of ▇▇▇▇ and its Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other
material tax returns which, to the best knowledge of the Credit
Parties, are required to be filed and has paid (a) all taxes shown to
be due and payable on said returns or (b) all taxes shown to be due and
payable on any assessments of which it has received notice made against
it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority
(other than any (i) taxes, fees or other charges with respect to which
the failure to pay, in the aggregate, would not have a Material Adverse
Effect or (ii) taxes, fees or other charges the amount or validity of
which are currently being contested and with respect to which reserves
in conformity with GAAP have been provided on the books of such
Person), and no tax Lien has been filed, and, to the best knowledge of
the Credit Parties, no claim is being asserted, with respect to any
such tax, fee or other charge.
(b) There are no income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied,
collected, withheld or assessed by any English court, or governmental
body, agency or other official either (i) on or by virtue of the
execution or delivery of the Credit Agreement or any other Credit
Document or (ii) on any payment to be made by the Borrowers under the
Credit Agreement or any other Credit Document.
6.12 ERISA.
Except as set forth in Schedule 6.12 (which was provided by ▇▇▇▇ on and
as of the Closing Date) or as could not reasonably be expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has
occurred, and, to the best knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan
which is subject to Title IV of ERISA; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Plan has been maintained, operated, and
funded in material compliance with its own terms and with the
applicable provisions of ERISA, the Code, and any other applicable
federal or state laws; and (iv) no lien in favor of the PBGC or a Plan
has arisen or is reasonably likely to arise on account of any Plan.
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(b) The actuarial present value of all "benefit liabilities"
under each Single Employer Plan (determined within the meaning of
Section 401(a)(2) of the Code, utilizing the actuarial assumptions used
to fund such Plans), whether or not vested, did not, as of the last
annual valuation date prior to the date on which this representation is
made or deemed made, exceed the current value of the assets of such
Plan allocable to such accrued liabilities.
(c) Neither ▇▇▇▇, any of the Subsidiaries of ▇▇▇▇ nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit
Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither ▇▇▇▇, any of the Subsidiaries of ▇▇▇▇ nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA
if ▇▇▇▇, any of the Subsidiaries of ▇▇▇▇ or any ERISA Affiliate were to
withdraw completely from all Multiemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither ▇▇▇▇, any of the
Subsidiaries of ▇▇▇▇ nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning
of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject ▇▇▇▇, any of the Subsidiaries of ▇▇▇▇ or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l)
of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which ▇▇▇▇, any of the Subsidiaries of ▇▇▇▇ or
any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) Each Plan which is a welfare plan (as defined in Section 3(1)
of ERISA) to which Sections 601-609 of ERISA and Section 4980B of the
Code apply has been administered in compliance in all material respects
with such sections.
(f) Neither the execution and delivery of this Agreement nor the
consummation of the financing transactions contemplated thereunder will
involve any transaction which is subject to the prohibitions of Section
406 of ERISA or in connection with which a tax could be imposed
pursuant to Section 4975 of the Code. The representation by the Credit
Parties in the preceding sentence is made in reliance upon and subject
to the accuracy of the Lenders' representation in Section 11.17 with
respect to their source of funds and is subject, in the event that the
source of the funds used by the Lenders in connection with this
transaction is an insurance company's general asset account, to the
continued validity of Department of Labor Interpretative Bulletin 75-2,
29 C.F.R. ss. 2509.75-2(b) (November 13, 1986) or the issuance of any
other similar relief or prohibited transaction exemption, to the effect
that assets in an insurance company's general asset account do not
constitute assets of an "employee benefit plan" within the meaning of
Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Code.
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6.13 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loans will be used, directly
or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Agent, each of the Borrowers will furnish to the
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form U-1 referred to in said Regulation U.
No indebtedness being reduced or retired out of the proceeds of the
Loans was or will be incurred for the purpose of purchasing or carrying
any margin stock within the meaning of Regulation U or any "margin
security" within the meaning of Regulation T. "Margin stock" within the
meanings of Regulation U does not constitute more than 25% of the value
of the consolidated assets of ▇▇▇▇ and its Subsidiaries, more than 25%
of the value of the consolidated assets of ▇▇▇▇ Europe and its
Subsidiaries or more than 25% of the value of the consolidated assets
of ▇▇▇▇ BV and its Subsidiaries. None of the transactions contemplated
by the Credit Agreement (including, without limitation, the direct or
indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, or regulations issued pursuant
thereto, or Regulation T, U or X.
(b) Neither ▇▇▇▇ nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, neither ▇▇▇▇ nor any of its Subsidiaries is (i)
an "investment company" registered or required to be registered under
the Investment Company Act of 1940, as amended, and is not controlled
by such a company, or (ii) a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) As of the Closing Date, no director, executive officer or
principal shareholder of ▇▇▇▇ or any of its Subsidiaries is a director,
executive officer or principal shareholder of any Lender. For the
purposes hereof the terms "director", "executive officer" and
"principal shareholder" (when used with reference to any Lender) have
the respective meanings assigned thereto in Regulation O issued by the
Board of Governors of the Federal Reserve System.
(d) Each of ▇▇▇▇ and its Subsidiaries has obtained all material
licenses, permits, franchises or other governmental authorizations
necessary to the ownership of its respective Property and to the
conduct of its business.
(e) Neither ▇▇▇▇ nor any of its Subsidiaries is in violation of
any applicable statute, regulation or ordinance of the United States of
America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including without limitation,
environmental laws and regulations), which violation could reasonably
be expected to have a Material Adverse Effect.
75
(f) Each of ▇▇▇▇ and its Subsidiaries is current with all
material reports and documents, if any, required to be filed with any
state or federal securities commission or similar agency and is in full
compliance in all material respects with all applicable rules and
regulations of such commissions.
6.14 Subsidiaries.
Schedule 6.14 sets forth all the Subsidiaries of ▇▇▇▇ at the Closing
Date, the jurisdiction of their incorporation and the direct or indirect
ownership interest of ▇▇▇▇ therein.
6.15 Purpose of Loans and Letters of Credit.
The proceeds of the Loans (other than the Foreign Currency Loans) shall
be used solely by ▇▇▇▇ (i) to refinance certain existing Indebtedness of ▇▇▇▇,
(ii) for the working capital and general corporate purposes of ▇▇▇▇ and its
Domestic Subsidiaries and (iii) to finance acquisitions by ▇▇▇▇. The proceeds of
the Foreign Currency Loans requested by ▇▇▇▇ Europe shall be used solely by ▇▇▇▇
Europe (i) to refinance certain existing Indebtedness of ▇▇▇▇ Europe, (ii) for
working capital and general corporate purposes of ▇▇▇▇ Europe and (iii) to
finance acquisitions by ▇▇▇▇ Europe. The proceeds of the Foreign Currency Loans
requested by ▇▇▇▇ BV shall be used solely by ▇▇▇▇ BV (i) to refinance certain
existing Indebtedness of ▇▇▇▇ BV, (ii) for working capital and general corporate
purposes of ▇▇▇▇ BV and (iii) to finance acquisitions by ▇▇▇▇ BV. The Letters of
Credit shall be used only for or in connection with appeal bonds, reimbursement
obligations arising in connection with surety and reclamation bonds,
reinsurance, domestic or international trade transactions and obligations not
otherwise aforementioned relating to transactions entered into by the Borrowers
in the ordinary course of business.
6.16 Environmental Matters.
Except as set forth in Schedule 6.16 (which was provided by ▇▇▇▇ on and
as of the Closing Date) or as could not reasonably be expected to have a
Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by
▇▇▇▇ or any of its Domestic Subsidiaries (the "Properties") and all operations
at the Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by ▇▇▇▇ or any of its Domestic Subsidiaries (the
"Businesses"), and there are no conditions relating to the Businesses or
Properties that could give rise to liability under any applicable Environmental
Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute a violation of, or could give rise to liability
under, Environmental Laws.
(c) Neither ▇▇▇▇ nor any of its Domestic Subsidiaries has received any
written notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
76
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Businesses that remains unresolved, nor
does ▇▇▇▇ or any of its Domestic Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or, to the best knowledge of the Credit
Parties, any other location, in each case by or on behalf of ▇▇▇▇ or any of its
Domestic Subsidiaries in violation of, or in a manner that would be reasonably
likely to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which ▇▇▇▇ or any of its Domestic Subsidiaries is or will
be named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
▇▇▇▇ or any of its Domestic Subsidiaries, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of ▇▇▇▇ or any of its
Domestic Subsidiaries in connection with the Properties or otherwise in
connection with the Businesses, in violation of Environmental Laws.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as the
Credit Agreement is in effect or any amounts payable under the Credit Agreement
or under any other Credit Document shall remain outstanding, and until all of
the Commitments shall have terminated:
7.1 Information Covenants.
▇▇▇▇ will furnish, or cause to be furnished, to the Agent:
(a) Annual Financial Statements. As soon as available, and in any
event within 90 days after the close of each fiscal year of ▇▇▇▇ and
its Subsidiaries, a consolidated balance sheet and income statement of
▇▇▇▇ and its Subsidiaries, as of the end of such fiscal year, together
with related consolidated statements of operations and retained
earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form
and detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Agent and
whose opinion shall be to the effect that such financial statements
have been prepared in accordance with GAAP (except for changes with
which such accountants concur) and shall not be limited as to the scope
of the audit or qualified as to the status of ▇▇▇▇ and its Subsidiaries
77
as a going concern; provided that, the delivery within the time period
specified above of ▇▇▇▇'▇ Annual Report on Form 10-K for any fiscal
year prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this subsection (a) for such period.
(b) Quarterly Financial Statements. As soon as available, and in
any event within 45 days after the close of each fiscal quarter of ▇▇▇▇
and its Subsidiaries (other than the fourth fiscal quarter, in which
case 90 days after the end thereof) a consolidated balance sheet and
income statement of ▇▇▇▇ and its Subsidiaries, as of the end of such
fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal
quarter in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Agent, and accompanied by a
certificate of the chief financial officer of ▇▇▇▇ to the effect that
such quarterly financial statements fairly present in all material
respects the financial position of ▇▇▇▇ and its Subsidiaries and have
been prepared in accordance with GAAP, subject to changes resulting
from audit and normal year-end audit adjustments; provided that, the
delivery within the time period specified above of ▇▇▇▇'▇ Annual Report
on Form 10-Q for any fiscal quarter prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this
subsection (a) for such period.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of the chief financial officer of ▇▇▇▇; substantially in
the form of Schedule 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation thereof as
of the end of each such fiscal period and (ii) stating that no Default
or Event of Default exists, or if any Default or Event of Default does
exist, specifying the nature and extent thereof and what action ▇▇▇▇
proposes to take with respect thereto.
(d) Annual Business Plan and Budgets. At least 90 days after the
end of each fiscal year of ▇▇▇▇, beginning with the fiscal year ending
December 3, 2000, an annual business plan and budget of ▇▇▇▇
containing, among other things, projected financial statements for the
next fiscal year.
(e) Accountant's Certificate. Within the period for delivery of
the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed Section 7.11 of the Credit Agreement and stating
further whether, in the course of their audit, they have become aware
of any Default or Event of Default under such Section 7.11 and, if any
such Default or Event of Default exists, specifying the nature and
extent thereof.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of
any other report or "management letter" submitted by independent
accountants to ▇▇▇▇ or any of its Subsidiaries in connection with any
annual, interim or special audit of the books of such Person.
78
(g) Reports. Promptly upon transmission or receipt thereof, (i)
copies of any filings and registrations with, and reports to or, if
material, from, the Securities and Exchange Commission, or any
successor agency, and copies of all financial statements, proxy
statements, notices and reports as ▇▇▇▇ or any of its Subsidiaries
shall send to its shareholders or to a holder of any Indebtedness owed
by ▇▇▇▇ or any of its Subsidiaries in its capacity as such a holder and
(ii) upon the request of the Agent, all reports and written information
to and from the United States Environmental Protection Agency, or any
state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or
safety matters.
(h) Notices. Upon a Credit Party obtaining knowledge thereof,
▇▇▇▇ will give written notice to the Agent immediately of (a) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action
the Credit Parties propose to take with respect thereto, and (b) the
occurrence of any of the following with respect to ▇▇▇▇ or any of its
Subsidiaries (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Person which if
adversely determined is likely to have a Material Adverse Effect, (ii)
the institution of any proceedings against such Person with respect to,
or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal,
state or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which would likely have a Material
Adverse Effect, or (iii) any notice or determination concerning the
imposition of any withdrawal liability by a multiemployer Plan against
such Person or any ERISA Affiliate, the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA or the termination of any Plan.
(i) ERISA. Upon any of the Credit Parties obtaining knowledge
thereof, ▇▇▇▇ will give written notice to the Agent promptly (and in
any event within five business days) of: (i) of any event or condition,
including, but not limited to, any Reportable Event, that constitutes,
or might reasonably lead to, a Termination Event; (ii) with respect to
any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against ▇▇▇▇ or any of
its ERISA Affiliates, or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning of Title IV
of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which ▇▇▇▇, any of
the Subsidiaries of ▇▇▇▇ or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
respect thereto; or (iv) any change in the funding status of any Plan
that reasonably could be expected to have a Material Adverse Effect;
together, with a description of any such event or condition or a copy
of any such notice and a statement by the principal financial officer
of ▇▇▇▇ briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
79
being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, ▇▇▇▇ shall furnish the Agent
and the Lenders with such additional information concerning any Plan as
may be reasonably requested, including, but not limited to, copies of
each annual report/return (Form 5500 series), as well as all schedules
and attachments thereto required to be filed with the Department of
Labor and/or the Internal Revenue Service pursuant to ERISA and the
Code, respectively, for each "plan year" (within the meaning of Section
3(39) of ERISA).
(j) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of ▇▇▇▇ or any of its Subsidiaries as the Agent or
the Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
Except as otherwise permitted pursuant to the terms of Section 8.4,
▇▇▇▇ will, and will cause each of its Subsidiaries to, do all things necessary
to preserve and keep in full force and effect its existence, material rights and
franchises and authority.
7.3 Books and Records.
▇▇▇▇ will, and will cause each of its Subsidiaries to, keep complete
and accurate books and records of its transactions in accordance with GAAP.
7.4 Compliance with Law.
▇▇▇▇ will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed by
all Governmental Authorities, applicable to it and its property if noncompliance
with any such law, rule, regulation, order or restriction would have a Material
Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
▇▇▇▇ will, and will cause each of its Subsidiaries to, pay and
discharge (i) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (ii) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (iii) except as prohibited under the Credit
Agreement, all of its other Indebtedness as it shall become due; provided,
however, that ▇▇▇▇ and its Subsidiaries shall not be required to pay any such
tax, assessment, charge, levy, claim or Indebtedness which is being contested in
good faith by appropriate proceedings and as to which adequate accruals therefor
have been established in accordance with GAAP, unless the failure to make any
such payment (i) would give rise to an immediate right to foreclose on a Lien
securing such amounts or (ii) would have a Material Adverse Effect.
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7.6 Insurance.
▇▇▇▇ will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice.
7.7 Maintenance of Property.
▇▇▇▇ will, and will cause each of its Subsidiaries to, maintain and
preserve its properties and equipment material to the conduct of its business in
good repair, working order and condition, normal wear and tear excepted, and
will make, or cause to be made, in such properties and equipment from time to
time all repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
7.8 Performance of Obligations.
▇▇▇▇ will, and will cause each of its Subsidiaries to, perform in all
material respects all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound.
7.9 Use of Proceeds.
The Borrowers will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours, ▇▇▇▇ will, and
will cause each of its Subsidiaries to, permit representatives appointed by the
Agent, including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property, including its books
and records, its accounts receivable and inventory, its facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit the
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of such Person.
7.11 Financial Covenants.
(a) Consolidated Net Worth. Consolidated Net Worth at all times
shall be no less than $60,000,000, increased on a cumulative basis as
of the end of each fiscal quarter commencing with the fiscal quarter
ending February 27, 2000 by an amount equal to 30% of Consolidated Net
Income (to the extent positive) for the fiscal quarter then ended.
81
(b) Consolidated Leverage Ratio. The Consolidated Leverage Ratio
at each Calculation Date shall be no greater than 3.00 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. The Consolidated
Fixed Charge Coverage Ratio at each Calculation Date shall be no less
than 1.30 to 1.00.
7.12 Additional Credit Parties.
Within thirty (30) days of any Person becoming a Material Subsidiary of
▇▇▇▇ or in the event that ▇▇▇▇ elects to cause any other present or future
direct or indirect Subsidiary of ▇▇▇▇ to become a Guarantor under the Credit
Agreement, ▇▇▇▇ shall so notify the Agent and shall cause such Person to (a)
execute a Joinder Agreement in substantially the same form as Schedule 7.12 and
(b) deliver such other documentation as the Agent may reasonably request in
connection with the foregoing, including, without limitation, certified
corporate resolutions and other corporate documents of such Person and favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Agent.
Notwithstanding any provision of the Credit Agreement to the contrary,
in the event that any Guarantor shall not be or that any Guarantor shall cease
to be a Material Subsidiary in accordance with the terms of the Credit
Agreement, then, upon written request of ▇▇▇▇ to the Agent and provided that no
Default or Event of Default shall exist at such time (1) such Guarantor,
automatically and without further act on the part of the Agent or the Lenders,
shall cease to be a Guarantor and shall be released from its obligations under
the Credit Agreement and (2) the Agent (on behalf of the Lenders) shall
thereupon execute such documents and take such other action reasonably requested
by ▇▇▇▇ to cause such Guarantor to be released from its obligations arising
under the Credit Agreement.
7.13 Ownership of Subsidiaries.
Except to the extent otherwise provided in Section 8.4(b), Section 8.5
and clause (xv) of the definition of "Permitted Investments" set forth in
Section 1.1 and Section 8.11, ▇▇▇▇ shall, directly or indirectly, own at all
times 100% of the capital stock of each of its Subsidiaries.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as the
Credit Agreement is in effect or any amounts payable under the Credit Agreement
or under any other Credit Document shall remain outstanding, and until all of
the Commitments shall have terminated:
82
8.1 Indebtedness.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under the Credit Agreement and the other
Credit Documents;
(b) Indebtedness of ▇▇▇▇ and any of its Subsidiaries existing as
of the Closing Date and set forth in Schedule 8.1 (which was provided
by ▇▇▇▇ on and as of the Closing Date), and renewals, refinancings and
extensions thereof on terms and conditions no less favorable to such
Person than such existing Indebtedness;
(c) purchase money Indebtedness (including Capital Leases)
incurred after the Closing Date by ▇▇▇▇ or any of its Foreign
Subsidiaries to finance the purchase of fixed assets provided that (i)
the aggregate principal amount of such Indebtedness plus the aggregate
outstanding principal amount of Indebtedness permitted pursuant to
clause (b) above and clause (i)(i) below shall not exceed $10,000,000
at any time, (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(d) unsecured Indebtedness of ▇▇▇▇ or any of its Foreign
Subsidiaries with respect to letters of credit (other than Letters of
Credit issued under the Credit Agreement) provided that the aggregate
maximum amount available to be drawn under all such letters of credit,
together with all unreimbursed drawings with respect thereto, shall not
exceed $10,000,000 at any time outstanding;
(e) obligations of ▇▇▇▇ in respect of interest rate protection
agreements, foreign currency exchange, commodity purchase or option
agreements or other interest or exchange rate or commodity price
hedging agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks and
not for speculative purposes;
(f) obligations in connection with any Permitted Receivables
Financing;
(g) intercompany Indebtedness of HGA, ▇▇▇▇ Europe and ▇▇▇▇ BV
owing to ▇▇▇▇ to the extent permitted by the definition of "Permitted
Investments" set forth in Section 1.1;
(h) Indebtedness arising under the Senior Note Agreement and the
Senior Notes in an aggregate principal amount of up to $50,000,000; and
(i) in addition to the Indebtedness otherwise permitted by this
Section 8.1,
(i) other Indebtedness incurred after the Closing Date by ▇▇▇▇ or
any of its Foreign Subsidiaries provided that (A) in the case of
any such Indebtedness incurred by the Borrowers, the loan
83
documentation with respect to such Indebtedness shall not contain
covenants or default provisions relating to ▇▇▇▇ and its
Subsidiaries that are more restrictive than the covenants and
default provisions contained in the Credit Documents, (B) on the
date of incurrence of such Indebtedness after giving effect on a
Pro Forma Basis to the incurrence of such Indebtedness and to the
concurrent retirement of any other Indebtedness of ▇▇▇▇ or any of
its Subsidiaries, no Default or Event of Default would exist
under the Credit Agreement and (C) the aggregate principal amount
of such Indebtedness plus the aggregate outstanding principal
amount of Indebtedness permitted pursuant to clauses (b) and (c)
above shall not exceed $10,000,000 at any time; and
(ii) (A) Guaranty Obligations of ▇▇▇▇ with respect to any
Indebtedness of a Foreign Subsidiary permitted under this Section
8.1 and (B) Guaranty Obligations of any Subsidiary of ▇▇▇▇ that
is a Guarantor with respect to any Indebtedness of ▇▇▇▇ permitted
under this Section 8.1.
Notwithstanding the foregoing of this Section 8.1, the aggregate
outstanding principal amount of all Indebtedness incurred after the
Closing Date by any Subsidiaries of ▇▇▇▇ (other than Indebtedness
permitted under subsection (a), (b) or (g) hereof) plus the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted under subsection (xiii) of the definition of "Permitted
Liens" plus the aggregate outstanding obligations incurred in
transactions permitted by Section 8.12 shall not exceed, at any time,
20% of Consolidated Net Worth as of the then most recent Calculation
Date with respect to which the Agent shall have received the Required
Financial Information.
8.2 Liens.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of their
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 Nature of Business.
Neither ▇▇▇▇ nor any of its Subsidiaries will substantively alter the
character or conduct of the business conducted by any such Person as of the
Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to:
(a) dissolve, liquidate or wind up their affairs, or enter into
any transaction of merger or consolidation; provided, however, that, so
long as no Default or Event of Default would be directly or indirectly
caused as a result thereof, (i) ▇▇▇▇ may merge or consolidate with any
of its Subsidiaries provided that ▇▇▇▇ is the surviving corporation;
(ii) any Domestic Subsidiary of ▇▇▇▇ may merge or consolidate with any
84
other Domestic Subsidiary of ▇▇▇▇; (iii) any Domestic Subsidiary of
▇▇▇▇ may merge or consolidate with any Foreign Subsidiary of ▇▇▇▇
provided that such Domestic Subsidiary is the surviving corporation;
(iv) any Foreign Subsidiary of ▇▇▇▇ may merge or consolidate with any
other Foreign Subsidiary of ▇▇▇▇; and (v) any Wholly-Owned Subsidiary
of ▇▇▇▇ may dissolve, liquidate or wind up its affairs at any time;
(b) sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale and leaseback
transaction) other than (i) the sale of inventory in the ordinary
course of business for fair consideration, (ii) the sale or disposition
of machinery and equipment no longer used or useful in the conduct of
such Person's business, (iii) in a Permitted Receivables Financing and
(iv) other sales of assets, provided that (A) after giving effect on a
Pro Forma Basis to such sale or other disposition, no Default or Event
of Default would exist under the Credit Agreement and (B) ▇▇▇▇ shall
give notice to the Agent and each of the Lenders specifying the
anticipated or actual date of such asset sale, briefly describing the
assets sold or to be sold and setting forth the net book value of such
assets and the aggregate consideration and Net Proceeds to be received
for such assets in connection with such asset sale, and thereafter ▇▇▇▇
shall (1) within the period of twelve months following the consummation
of such asset sale (with respect to any such asset sale, the
"Application Period"), apply (or cause an applicable Subsidiary to
apply) an amount equal to the Excess Sale Proceeds of such asset sale
to the purchase, acquisition or, in the case of real property,
construction of Alternative Assets in a transaction complying with all
of the terms and conditions of the Credit Agreement or (2) prepay the
Loans in connection with such asset sale to the extent required by
Section 3.3(b)(iii); or
(c) acquire all or any portion of the capital stock or securities
of any other Person or purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) all or any
substantial part of the Property of any other Person unless (i) such
Property or Person represents operations similar to those ▇▇▇▇ and its
Subsidiaries, (ii) no Default or Event of Default exists, and (iii)
after giving effect to such transaction, no Default or Event of Default
would exist.
8.5 Advances, Investments, Loans, etc.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, make
Investments in or to any Person, except for Permitted Investments.
8.6 Restricted Payments.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, directly
or indirectly declare, order, make or set apart any sum for or pay any
Restricted Payment, except (i) to make (A) dividends payable solely in the same
class of capital stock of such Person and (B) other Restricted Payments payable
solely in common stock of such Person, (ii) to make dividends or other
distributions payable to ▇▇▇▇ (directly or indirectly through Subsidiaries of
▇▇▇▇), (iii) as permitted by Section 8.7, (iv) the repurchase by ▇▇▇▇ of
outstanding shares of its capital stock, provided that (A) no proceeds of any
Loans shall be used to finance any such repurchase, (B) no Indebtedness is
incurred by the Borrowers to finance any such repurchase and (C) the aggregate
85
cash consideration paid for all such repurchases occurring after July 1, 1998
shall not exceed $25,000,000 and (v) so long as no Default or Event of Default
exists, other Restricted Payments made by ▇▇▇▇.
8.7 Prepayments of Indebtedness, etc.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, (i) if
any Default or Event of Default has occurred and is continuing or would be
directly or indirectly caused as a result thereof, make (or give any notice with
respect thereto) any voluntary or optional payment or prepayment or redemption
or acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any other
Indebtedness (other than Subordinated Indebtedness) or (ii) make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any
Indebtedness subordinated to the obligations of the Borrowers or the Guarantors
under the Credit Agreement or (iii) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or
bylaws (or other similar document) where such change would have a Material
Adverse Effect.
8.8 Transactions with Affiliates.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, enter
into or permit to exist any transaction or series of transactions with any
officer, director, shareholder, Subsidiary or Affiliate of such Person other
than (a) advances of working capital to ▇▇▇▇, (b) transfers of cash and assets
to ▇▇▇▇, (c) transactions permitted by Section 8.1(g), Section 8.4(a), Section
8.5 or Section 8.6, (d) normal compensation and reimbursement of expenses of
officers and directors and (e) except as otherwise specifically limited in the
Credit Agreement, other transactions which are entered into in the ordinary
course of such Person's business on terms and conditions substantially as
favorable to such Person as would be obtainable by it in a comparable
arms-length transactions with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate.
8.9 Fiscal Year.
Without the prior written approval of the Agent, ▇▇▇▇ will not, nor
will it permit any of its Subsidiaries to, change its fiscal year.
8.10 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions, etc.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Person to (a) pay dividends or make any other
distribution on any of such Person's capital stock, (b) subject to subordination
provisions, pay any Indebtedness owed to the Borrowers or any other Credit
Party, (c) make loans or advances to any other Credit Party or (d) transfer any
86
of its Property to any other Credit Party, except for encumbrances or
restrictions existing under or by reason of (i) customary non-assignment
provisions in any lease governing a leasehold interest and (ii) the Credit
Agreement and the other Credit Documents.
8.11 Issuance and Sale of Subsidiary Stock.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, except to
qualify directors where required by applicable law and except as otherwise
permitted under the terms of Section 8.4(b), sell, transfer or otherwise dispose
of, any shares of capital stock of any of its Subsidiaries or permit any of its
Subsidiaries to issue, sell or otherwise dispose of, any shares of capital stock
of any of its Subsidiary.
8.12 Sale Leasebacks.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, directly
or indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or acquired
after the Closing Date, (i) which such Person has sold or transferred or is to
sell or transfer to any other Person other than ▇▇▇▇ or (ii) which such Person
intends to use for substantially the same purpose as any other Property which
has been sold or is to be sold or transferred by such Person to any other Person
in connection with such lease that would cause the aggregate outstanding
obligations of ▇▇▇▇ and its Subsidiaries in respect of all such transactions
plus the aggregate outstanding principal amount of all Indebtedness secured by
Liens permitted under subsection (xiii) of the definition of "Permitted Liens"
plus the aggregate outstanding principal amount of all Indebtedness of all
Subsidiaries of ▇▇▇▇ to exceed, at any time, 20% of Consolidated Net Worth as of
the then most recent Calculation Date with respect to which the Agent shall have
received the Required Financial Information.
8.13 No Further Negative Pledges.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or acquired after the Closing Date, or requiring the
grant of any security for such obligation if security is given for some other
obligation, other than (i) pursuant to the Senior Note Agreement and the Senior
Notes, in each case as in effect as of August 1, 1996, and (ii) prohibitions
against other encumbrances on specific Property encumbered to secure payment of
particular Indebtedness (which Indebtedness relates solely to such specific
Property, and improvements and accretions thereto, and is otherwise permitted
hereby).
8.14 Operating Lease Obligations.
▇▇▇▇ will not, nor will it permit any of its Subsidiaries to, enter
into, assume or permit to exist any obligations for the payment of rental under
Operating Leases which in the aggregate for all such Persons would exceed
$10,000,000 in any fiscal year.
87
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any
of the Loans or of any reimbursement obligations arising from
drawings under Letters of Credit, or
(ii) default, and such defaults shall continue for five (5)
or more days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings
under Letters of Credit, or of any Fees or other amounts owing
under the Credit Agreement, under any of the other Credit
Documents or in connection therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party in any of the Credit
Documents, or in any statement or certificate delivered or required to
be delivered pursuant thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 7.2, 7.9, 7.11,
7.12, 7.13 or 8.1 through 8.14, inclusive, or
(ii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or this Section 9.1) contained in
the Credit Agreement and such default shall continue unremedied
for a period of at least 30 days after the earlier of a
responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in
any of the other Credit Documents (subject to applicable grace or cure
periods, if any), or (ii) any Credit Document shall fail to be in full
force and effect or to give the Agent and/or the Lenders the liens,
rights, powers and privileges purported to be created thereby; or
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(e) Guaranties. The guaranty given by any Guarantor under the
Credit Agreement(including any Additional Credit Party) or any
provision thereof shall cease to be in full force and effect, or any
Guarantor (including any Additional Credit Party) under the Credit
Agreement or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty; or
(f) Bankruptcy Event. Any Bankruptcy Event shall occur with
respect to ▇▇▇▇ or any of its Subsidiaries; or
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under the Credit
Agreement) in excess of $10,000,000 in the aggregate for ▇▇▇▇ and its
Subsidiaries taken as a whole, (i) ▇▇▇▇ or any of its Subsidiaries
shall (A) default in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any such Indebtedness, or
(B) default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated
maturity; or (ii) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
against ▇▇▇▇ or any of its Subsidiaries involving a liability of
$10,000,000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has acknowledged
coverage) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such
event or condition could have a Material Adverse Effect: (1) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets
of ▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate in favor of the
PBGC or a Plan; (2) a Termination Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the Agent,
likely to result in the termination of such Plan for purposes of Title
IV of ERISA; (3) a Termination Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii)
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▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of
(within the meaning of Section 4241 of ERISA), or insolvency or (within
the meaning of Section 4245 of ERISA) such Plan; or (4) any prohibited
transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code) or breach of fiduciary responsibility shall occur which
may subject ▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which ▇▇▇▇, any Subsidiary of ▇▇▇▇ or any ERISA Affiliate
has agreed or is required to indemnify any person against any such
liability; or
(j) Ownership. There shall occur a Change of Control; or
(k) Senior Note Agreement. There shall occur and be continuing
any Event of Default under and as defined in the Senior Note Agreement.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
or cured to the satisfaction of the Required Lenders (pursuant to the voting
procedures in Section 11.6), the Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Credit Parties take any of the
following actions without prejudice to the rights of the Agent or any Lender to
enforce its claims against the Credit Parties, except as otherwise specifically
provided for in the Credit Agreement:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the
Borrowers to any of the Lenders under the Credit Agreement to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Borrowers.
(iii) Cash Collateral. Direct (A) ▇▇▇▇ to pay (and ▇▇▇▇ agrees that
upon receipt of such notice, or upon the occurrence of an Event of
Default under Section 9.1(f), it will immediately pay) to the Agent
additional cash, to be held by the Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the
Domestic LOC Obligations in respect of subsequent drawings under all
then outstanding Domestic Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Domestic Letters
of Credits then outstanding, (B) ▇▇▇▇ Europe to pay (and ▇▇▇▇ Europe
agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under Section 9.1(f), it will immediately pay) to the
Agent additional cash, to be held by the Agent, for the benefit of the
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Lenders, in a cash collateral account as additional security for the
Foreign LOC Obligations in respect of subsequent drawings under all
applicable then outstanding Foreign Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all such
Foreign Letters of Credits then outstanding and/or (C) ▇▇▇▇ BV to pay
(and ▇▇▇▇ BV agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Agent additional cash, to be held by the Agent,
for the benefit of the Lenders, in a cash collateral account as
additional security for the Foreign LOC Obligations in respect of
subsequent drawings under all applicable then outstanding Foreign
Letters of Credit in an amount equal to the maximum aggregate amount
which may be drawn under all such Foreign Letters of Credits then
outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur, then the Commitments shall automatically terminate
and all Loans, all reimbursement obligations arising from drawings under Letters
of Credit, all accrued interest in respect thereof, all accrued and unpaid Fees
and other indebtedness or obligations owing to the Lenders under the Credit
Agreement automatically shall immediately become due and payable without the
giving of any notice or other action by the Agent.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints Bank of America as
administrative agent (in such capacity as Agent under the Credit Agreement, the
"Agent") of such Lender to act as specified in the Credit Documents, and each
such Lender hereby authorizes the Agent as the agent for such Lender, to take
such action on its behalf under the provisions of the Credit Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated by the terms of the Credit Agreement and of the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in the Credit
Agreement and in the other Credit Documents, the Agent shall not have any duties
or responsibilities, except those expressly set forth in the Credit Agreement
and therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Credit Agreement or any of the other Credit Documents, or shall
otherwise exist against the Agent. Except as otherwise expressly provided in the
Credit Agreement, the provisions of this Section are solely for the benefit of
the Agent and the Lenders and none of the Credit Parties shall have any rights
as a third party beneficiary of the provisions of the Credit Agreement. In
performing its functions and duties under the Credit Agreement and the other
Credit Documents, the Agent shall not act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Party.
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10.2 Delegation of Duties.
The Agent may execute any of their respective duties under the Credit
Agreement or under the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Credit Agreement or in connection with any of the other
Credit Documents (except for its or such Person's own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any of the
Credit Parties contained in the Credit Agreement or in any of the other Credit
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by the
Agent under or in connection with the Credit Agreement or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of any Credit Party to perform its
obligations thereunder. The Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of the Credit Agreement, or any of the other Credit Documents or for
any representations, warranties, recitals or statements made therein or made by
either Borrower or any Credit Party in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection therewith furnished or made by the Agent to the Lenders
or by or on behalf of the Credit Parties to the Agent or any Lender or be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained therein or
as to the use of the proceeds of the Loans or the use of the Letters of Credit
or of the existence or possible existence of any Default or Event of Default or
to inspect the properties, books or records of the Credit Parties.
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10.4 Reliance on Communications.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agent with reasonable care). The Agent may deem
and treat the Lenders as the owner of their respective interests under the
Credit Agreement for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent in
accordance with Section 11.3(b). The Agent shall be fully justified in failing
or refusing to take any action under the Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
notice from a Lender or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the Agent or any
affiliate thereof taken after the Closing Date, including any review of the
affairs of any Credit Party, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrowers and the other Credit Parties and made its own decision to make its
Loans and enter into the Credit Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under the Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
93
creditworthiness of the Borrowers and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent under the Credit Agreement, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrowers and the other
Credit Parties which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to their respective Commitments
(or if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the final payment of all of the obligations of the Borrowers
under the Credit Documents) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of the
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to therein or the transactions contemplated thereby or any action
taken or omitted by the Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments.
10.8 Agent in its Individual Capacity.
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Credit Party as though the
Agent were not Agent under the Credit Agreement. With respect to the Loans made
by and all obligations of the Borrowers under the Credit Documents owing to it,
the Agent shall have the same rights and powers under the Credit Agreement as
any Lender and may exercise the same as though they were not Agent, and the
terms "Lender" and "Lenders" shall include the Agent in its individual capacity.
10.9 Successor Agent.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders and ▇▇▇▇, and be removed with or without cause by the Required Lenders
upon 30 days' written notice to the Agent. Upon any such resignation or removal,
the Required Lenders shall have the right, with the prior consent of ▇▇▇▇, to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
94
after the notice of resignation or notice of removal, as appropriate, then the
retiring Agent, with the prior consent of ▇▇▇▇, shall select a successor Agent
provided such successor is a Lender under the Credit Agreement or a commercial
bank organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000. Upon
the acceptance of any appointment as Agent under the Credit Agreement by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as Agent,
as appropriate, under the Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under the Credit
Agreement.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided in the Credit Agreement, all
notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service, or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case
to the respective parties at the address, in the case of the Borrowers,
Guarantors and the Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 2.1(a), or at such other address as such party may specify by
written notice to the other parties to the Credit Agreement:
if to ▇▇▇▇ or the Guarantors:
▇▇▇▇ Corporation
One Commerce Square
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇ Europe:
▇▇▇▇ Graphics Europe Limited
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ SS143BG
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
Telecopy: 011-44-1268-527-211
95
if to ▇▇▇▇ BV:
▇▇▇▇ Graphics Europe B.V.
Kanaaldijk O.Z. 3, ▇.▇.▇. ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: Ton ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: 011-31572 345 501
if to the Agent:
Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
11.2 Right of Set-Off.
In addition to any rights now or after the Closing Date granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, each Lender is authorized at any
time and from time to time, without presentment, demand, protest or other notice
of any kind (all of which rights being hereby expressly waived), to set-off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Credit Party to such Lender under the Credit Agreement, the
other Credit Documents or otherwise, irrespective of whether such Lender shall
have made any demand under the Credit Agreement and although such obligations,
liabilities or claims of such Lender to such Credit Party, or any of them, may
be contingent or unmatured, and any such set-off shall be deemed to have been
96
made immediately upon the occurrence of an Event of Default even though such
charge is made or entered on the books of such Lender subsequent thereto. Each
of the Credit Parties hereby agrees that any Person purchasing a participation
in the Loans and Commitments pursuant to Section 11.3(c) or Section 3.13 may
exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender under the Credit Agreement.
11.3 Benefit of Agreement.
(a) Generally. The Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties to the Credit Agreement; provided that none
of the Credit Parties may assign and transfer any of its interests
without prior written consent of the Lenders and ▇▇▇▇; provided further
that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations under the Credit
Agreement shall be limited as set forth in this Section 11.3, provided
however that nothing in the Credit Agreement shall prevent or prohibit
any Lender from (i) pledging its Loans to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve
Bank, or (ii) granting assignments or participation in such Lender's
Loans and/or Commitments to its parent company and/or to any affiliate
of such Lender which is at least 50% owned by such Lender or its parent
company.
(b) Assignments. Each Lender may assign all or a portion of its
rights and obligations under the Credit Agreement pursuant to an
assignment agreement substantially in the form of Schedule 11.3(b) to
one or more Eligible Assignees, provided that any such assignment shall
be in a minimum aggregate amount of $5,000,000 of the Commitments and
in integral multiples of $1,000,000 above such amount. Any assignment
under this Section 11.3(b) shall be effective upon delivery to the
Agent of written notice of the assignment together with a transfer fee
of $3,500 payable to the Agent for its own account. The assigning
Lender will give prompt notice to the Agent and ▇▇▇▇ of any such
assignment. Upon the effectiveness of any such assignment (and after
notice to ▇▇▇▇ as provided in the Credit Agreement), the assignee shall
become a "Lender" for all purposes of the Credit Agreement and the
other Credit Documents and, to the extent of such assignment, the
assigning Lender shall be relieved of its obligations under the Credit
Agreement to the extent of the Loans and Commitment components being
assigned. By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties to the Credit Agreement as
follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear
of any adverse claim; (ii) except as set forth in clause (i) above,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any
of the other Credit Documents or any other instrument or document
furnished pursuant thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
97
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant thereto or the financial condition of any
Credit Party or the performance or observance by any Credit Party of
any of its obligations under the Credit Agreement, any of the other
Credit Documents or any other instrument or document furnished pursuant
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (iv) such assignee
confirms that it has received a copy of the Credit Agreement, the other
Credit Documents and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into such assignment agreement; (v) such assignee will
independently and without reliance upon the Agent, such assigning
Lender or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement and the other Credit Documents; (vi) such assignee appoints
and authorizes the Agent to take such action on its behalf and to
exercise such powers under the Credit Agreement or any other Credit
Document as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all
the obligations which by the terms of the Credit Agreement and the
other Credit Documents are required to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests and
obligations under the Credit Agreement; provided that (i) such selling
Lender shall remain a "Lender" for all purposes under the Credit
Agreement (such selling Lender's obligations under the Credit Documents
remaining unchanged) and the participant shall not constitute a Lender
under the Credit Agreement, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to the
Credit Agreement or the other Credit Documents except to the extent any
such amendment or waiver would (A) reduce the principal of or rate of
interest on or Fees in respect of any Loans in which the participant is
participating, (B) postpone the date fixed for any payment of principal
(including extension of the Termination Date or the date of any
mandatory prepayment), interest or Fees in which the participant is
participating, or (C) release any Guarantor from its guaranty
obligations under the Credit Agreement(except as expressly provided in
the Credit Documents), (iii) sub-participations by the participant
(except to an affiliate, parent company or affiliate of a parent
company of the participant) shall be prohibited and (iv) any such
participations shall be in a minimum aggregate amount of $5,000,000 of
the Commitments and in integral multiples of $1,000,000 in excess
thereof. In the case of any such participation, the participant shall
not have any rights under the Credit Agreement or the other Credit
Documents (the participant's rights against the selling Lender in
respect of such participation to be those set forth in the
participation agreement with such Lender creating such participation)
and all amounts payable by the Borrowers under the Credit Agreement
shall be determined as if such Lender had not sold such participation,
provided, however, that such participant shall be entitled to receive
98
additional amounts under Sections 3.6, 3.9, 3.10 and 3.11 on the same
basis as if it were a Lender, except that all claims and petitions for
payment and all payments made pursuant to such sections shall be made
through such selling Lender and except that a participant shall not be
entitled to receive pursuant to such provisions an amount larger than
its share of the amount of which the selling Lender would have been
entitled.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege under any Credit Document and no course
of dealing between any of the Credit Parties shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege under
any Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege thereunder. The rights and
remedies provided in the Credit Agreement are cumulative and not exclusive of
any rights or remedies which the Agent or any Lender would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle the Borrowers
or any other Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or the
Lenders to any other or further action in any circumstances without notice or
demand.
99
11.5 Payment of Expenses, etc.
▇▇▇▇ agrees to: (i) pay all reasonable out-of-pocket costs and expenses
of the Agent in connection with the negotiation, preparation, execution and
delivery and administration of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, special counsel to the Agent) and any
amendment, waiver or consent relating thereto including, but not limited to, any
such amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Credit Parties
under the Credit Agreement and of the Agent and the Lenders in connection with
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent and
each of the Lenders); (ii) pay and hold each of the Lenders harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) or the consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 Amendments, Waivers and Consents.
Neither the Credit Agreement nor any other Credit Document nor any of
the terms thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
entered into by, or approved in writing by, the Required Lenders, provided that
no such amendment, change, waiver, discharge or termination shall, without the
consent of each affected Lender, (i) extend the scheduled maturities (including
the final maturity and any mandatory prepayments) of any Loan, or any portion
thereof, or reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase in
interest rates) thereon or fees under the Credit Agreement or reduce the
principal amount thereof, or increase the Commitments of the Lenders over the
amount thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or of a mandatory reduction in the total commitments
shall not constitute a change in the terms of any Commitment of any Lender),
(ii) release any Guarantor from its guaranty obligations under the Credit
Agreement (except as expressly provided in the Credit Documents), (iii) amend,
modify or waive any provision of this Section 11.5, (iv) reduce any percentage
specified in, or otherwise modify, the definition of "Required Lenders" or (v)
consent to the assignment or transfer by any Borrower (or Guarantor) of any of
its rights and obligations under (or in respect of) the Credit Agreement. No
100
provision of Section 2.2 or Section 2.6 may be amended without the consent of
the Issuing Lender, no provision of Section 2.4 may be amended without the
consent of the Swingline Lender and no provision of Section 10 may be amended
without the consent of the Agent.
11.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of the Credit Agreement to produce or account for more than one
such counterpart.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of hereof.
11.9 Survival of Indemnification.
All indemnities set forth in the Credit Agreement, including, without
limitation, in Section 2.2(h), 2.6(i), 3.9, 3.11, 10.7 or 11.5 shall survive the
making of the Loans, the issuance of the Letters of Credit, the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments under.
11.10 Governing Law; Submission to Jurisdiction; Venue; Arbitration.
(a) THE CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal
action or proceeding with respect to the Credit Agreement or any other
Credit Document may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States for the Western
District of North Carolina, and, by execution and delivery of the
Credit Agreement, each of the Credit Parties hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each of the Credit
Parties further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address set out notices pursuant to Section 11.1,
such service to become effective 30 days after such mailing. Nothing in
the Credit Agreement shall affect the right of the Agent to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any
other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or after the Closing Date have to the laying
of venue of any of the aforesaid actions or proceedings arising out of
or in connection with the Credit Agreement or any other Credit Document
101
brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) EACH OF THE AGENTS, EACH OF THE LENDERS AND EACH OF THE
CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THE CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
(d) (i) Without limiting the generality of subsections (a), (b)
and (c) of this Section 11.10, ▇▇▇▇ Europe and ▇▇▇▇ BV each agree that
any controversy or claim with respect to it arising out of or relating
to the Credit Agreement or any of the other Credit Documents may, at
the option of the Agent and the Lenders, be settled immediately by
submitting the same to binding arbitration in the City of Charlotte,
North Carolina (or such other place as the parties may agree) in
accordance with the Commercial Arbitration Rules then obtaining of the
American Arbitration Association. Upon the request and submission of
any controversy or claim for arbitration under the Credit Agreement,
the Agent shall give ▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable, not less
than 45 days written notice of the request for arbitration, the nature
of the controversy or claim, and the time and place set for
arbitration. ▇▇▇▇ Europe and ▇▇▇▇ BV each agree that such notice is
reasonable to enable it sufficient time to prepare and present its case
before the arbitration panel. Judgment on the award rendered by the
arbitration panel may be entered in any court in which any action could
have been brought or maintained, including without limitation any court
of the State of North Carolina or any Federal court sitting in the
State of North Carolina. The expenses of arbitration shall be paid by
▇▇▇▇ Europe or ▇▇▇▇ BV, as applicable.
(ii) The provisions of subsection (d)(i) above are intended to
comply with the requirements of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the "Convention"). To the
extent that any provisions of such subsection (d)(i) are not consistent
with or fail to conform to the requirements set out in the Convention,
such subsection (d)(i) shall be deemed amended to conform to the
requirements of the Convention.
(iii) ▇▇▇▇ Europe and ▇▇▇▇ BV each hereby specifically consent
and submit to the jurisdiction of the courts of the State of North
Carolina and courts of the United States located in the State of North
Carolina for purposes of entry of a judgment or arbitration award
entered by the arbitration panel.
(iv) ▇▇▇▇ Europe and ▇▇▇▇ BV each hereby irrevocably appoint
▇▇▇▇ as process agent in its name, place and stead (the "North Carolina
Process Agent") to receive and forward service of any and all writs,
summonses and other legal process in any suit, action or proceeding
brought in the State of North Carolina, agrees that such service in any
such suit, action or proceeding may be made upon the North Carolina
Process Agent and agrees to take all such action as may be necessary to
102
continue said appointment in full force and effect or to appoint
another agent so that ▇▇▇▇ Europe and ▇▇▇▇ BV will at all times have an
agent in the State of North Carolina for service of process for the
above purposes.
11.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
The Credit Documents represent the entire agreement of the parties
thereto, and supersede all prior agreements and understandings, oral or written,
if any, including any commitment letters or correspondence relating to the
Credit Documents or the transactions contemplated therein.
11.13 Survival of Representations and Warranties.
All representations and warranties made by the Credit Parties in the
Credit Agreement shall survive the execution and delivery of the Credit
Agreement and the making of the Loans and the issuance of the Letters of Credit.
11.14 Binding Effect; Termination of Credit Agreement; etc.
(a) The Credit Agreement shall be deemed to have become
effective at such time on or after the Closing Date when it shall have
been executed by the Borrowers, the Guarantors and the Agent, and the
Agent shall have received copies thereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and
thereafter the Credit Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Guarantors, the Agent and each Lender and
their respective successors and assigns.
(b) The term of the Credit Agreement shall be until no Loans,
LOC Obligations or any other amounts payable under any of the Credit
Documents shall remain outstanding and until all of the Commitments
shall have expired or been terminated.
11.15 Judgment Currency.
(a) Each Credit Party's obligations under the Credit Agreement
to make payments in Dollars or in any available Available Foreign
Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed
in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the
effective receipt by the Agent or a Lender of the full amount of the
Obligation Currency expressed to be payable to the Agent or such Lender
under the Credit Agreement. If, for the purpose of obtaining or
103
enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in
the Obligation Currency, the conversion shall be made, at the Dollar
Equivalent or the Foreign Currency Equivalent, as applicable,
determined in each case as of the Business Day immediately preceding
the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, such amount payable by the applicable Credit
Party shall be reduced or increased, as applicable, such that the
amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of
the Obligation Currency which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion
Date.
11.16 Confidentiality.
The Agent and the Lenders agree to keep confidential (and to cause
their respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf of ▇▇▇▇ or any of its
Subsidiaries (whether before or after the Closing Date) which relates to ▇▇▇▇ or
any of its Subsidiaries (the "Information"). Notwithstanding the foregoing, the
Agent and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents and representatives who have
a need to know such Information in connection with their work on any of the
transactions evidenced by the Credit Agreement or any other Credit Documents or
the administration of the Credit Agreement or any other Credit Documents; (ii)
to the extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any Governmental Authority; (iii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of the Credit Agreement or any agreement entered into pursuant to
clause (iv) below, (B) becomes available to the Agent or such Lender on a
non-confidential basis from a source other than ▇▇▇▇ or any of its Subsidiaries
or (C) was available to the Agent or such Lender on a non-confidential basis
prior to its disclosure to the Agent or such Lender by ▇▇▇▇ or any of its
Subsidiaries; (iv) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) first specifically agrees in a writing furnished to and for the
benefit of ▇▇▇▇ and its Subsidiaries to be bound by the terms of this Section
11.16; or (v) to the extent that ▇▇▇▇ shall have consented in writing to such
disclosure. Nothing set forth in this Section 11.16 shall obligate the Agent or
any Lender to return any materials furnished by ▇▇▇▇ or any of its Subsidiaries.
104
11.17 Source of Funds.
Each of the Lenders hereby represents and warrants to the Borrowers
that at least one of the following statements is an accurate representation as
to the source of funds to be used by such Lender in connection with the
financing under the Credit Agreement:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such
Lender has disclosed to the Borrowers the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans
maintained by the same employee or employee organization are
deemed to be a single plan); or
(c) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the
Borrowers.
As used in this Section 11.17, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
[Signature Page to Follow]
105
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWERS: ▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Senior Vice President, Finance
------------------------------
▇▇▇▇ GRAPHICS EUROPE LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Director
------------------------------
▇▇▇▇ GRAPHICS EUROPE B.V.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Director
------------------------------
GUARANTORS: ▇▇▇▇ HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Vice President, Treasurer
------------------------------
▇▇▇▇ X-ACTO, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Senior Vice President
------------------------------
▇▇▇▇ GRAPHICS AMERICAS
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Senior Vice President
------------------------------
S-1
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title Senior Vice President
------------------------------
[Signatures Continue]
S-2
FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title Senior Vice President
---------------------------------
[Signatures Continue]
S-3
NATIONAL CITY BANK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title Assistant Vice President
---------------------------------
[Signatures Continue]
S-4
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title First Vice President
-------------------------------
S-5
Schedule 1.1A
--------------
EXISTING LETTERS OF CREDIT
Schedule 1.1B
-------------
CALCULATION OF MLA COSTS
The MLA Cost for any Foreign Currency Loan made by any Lender is
calculated by each Lender (and rounded upward, if necessary, to four decimal
places) (such calculation then to be notified to the Agent by each Lender) as
the rate resulting from the application of the following formula:
XL + S(L - D) + F x 0.01 % per annum = MLA Cost
------------------------
100 - (X+S)
where on the day of application of the formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which the relevant Lender is
required under or pursuant to the Act to maintain cash ratio
deposits with the Bank of England;
L is the percentage rate per annum at which sterling deposits
for the relevant period are offered by the relevant Lender to
leading banks in the London Interbank Market at or about 11:00
a.m. (London time) on that day.
F is the rate of charge payable by the relevant Lender to the
FSA pursuant to paragraph 2.02 or 2.03 (as the case may be) of
the Fees Regulations (but where for this purpose, the figure
at paragraph 2.02 b and 2.03 b shall be deemed to be zero) and
expressed in pounds per (pound)1 million of the Fee Base of
the relevant Lender.
S is the level of interest-bearing Special Deposits, expressed
as a percentage of Eligible Liabilities, which the relevant
Lender is required to maintain by the Bank of England (or
other United Kingdom governmental authorities or agencies);
and
D is the percentage rate per annum payable by the Bank of
England to the relevant Lender on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall
be counted as zero.)
The MLA Cost attributable to any Loan or other sum for any period shall
be calculated at or about 11:00 a.m. (London time) on the first day of
such period for the duration of such period by reference to the
circumstances existing on the first day of the relevant period and for
the duration of such period.
The determination of the MLA Cost in relation to any period shall in
the absence of manifest error, be conclusive and binding on the parties
hereto.
If there is any change in circumstance (including the imposition of
alternative or additional requirements) which in the reasonable opinion
of the Agent renders or will render the above formula (or any element
thereof, or any defined term used therein) inappropriate or
inapplicable or the Agent otherwise determines that the above formula
is inappropriate, the Agent, following notice to ▇▇▇▇ Europe and ▇▇▇▇
BV, shall be entitled to vary the same. Any such variation shall, in
the absence of manifest error, be conclusive and binding on the parties
and shall apply from the date specified in such notice.
For the purposes of this Schedule:
The terms Eligible Liabilities and Special Deposits shall bear
the meanings ascribed to them under or pursuant to the Act or
by the Bank of England (as may be appropriate), on the day of
the application of the formula.
Fee Base has the meaning ascribed to it for the purposes of,
and shall be calculated in accordance with, the Fees
Regulations.
Fees Regulations means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision
in respect of periods subsequent to 31 March 1999.
Any reference to a provision of any statute, directive, order or regulation
herein is a reference to that provision as amended or reenacted from time to
time.
Schedule 1.1C
-------------
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇*
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, [▇▇▇▇ Corporation][▇▇▇▇ Graphics Europe Limited] [▇▇▇▇
Graphics Europe B.V.] refers to the Amended and Restated of Credit Agreement
dated as of September 12, 2000 (as it may be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrowers, the
other Credit Parties party thereto, the Lenders party thereto and Bank of
America, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice that it requests a [Revolving
Loan advance in accordance with the provisions of Section 2.1 of the Credit
Agreement][Foreign Currency Loan advance in accordance with the provisions of
Section 2.5 of the Credit Agreement] and in connection therewith sets forth
below the terms on which such Loan advance is requested to be made:
(A) Date of Borrowing
(which is a Business Day) _______________________
(B) Principal Amount of
Borrowing _______________________
----------------
* All original notices with respect to Foreign Currency Loans shall be sent
to the address set forth in Section 3.14(b) of the Credit Agreement for payments
in an Available Foreign Currency with a copy to the address set forth in Section
3.14(b) of the Credit Agreement for payments in Dollars.
(C) Interest Period and the
last day thereof _______________________
(D) Interest rate basis** _______________________
[(E) Available Foreign Currency _______________________]
The delivery of this Notice of Borrowing shall constitute a
representation and warranty by the undersigned of the correctness of the matters
specified in subsections (ii), (iii), (iv), (v) and (vi) of Sections 5.2.
Very truly yours,
[▇▇▇▇ CORPORATION]
[▇▇▇▇ GRAPHICS EUROPE LIMITED]
[▇▇▇▇ GRAPHICS EUROPE B.V.]
By _____________________________________
Title:
------------------------
** All Foreign Currency Loans will bear interest on the basis of the
Eurodollar Rate.
Schedule 1.1D
-------------
FORM OF NOTICE OF EXTENSION/CONVERSION
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇*
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, [▇▇▇▇ Corporation][▇▇▇▇ Graphics Europe Limited] [▇▇▇▇
Graphics Europe B.V.], refers to the Amended and Restated Credit Agreement dated
as of September 12, 2000 (as amended, modified, extended or restated from time
to time, the "Credit Agreement"), among the Borrowers, the other Credit Parties
party thereto, the Lenders and Bank of America, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension or conversion of a Loan
outstanding under the Credit Agreement, and in connection herewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Type of Loan ______________________
(B) Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period) _______________________
(C) Principal Amount of
Extension or Conversion _______________________
-------------------
* All original notices with respect to Foreign Currency Loans shall be sent
to the address set forth in Section 3.14(b) of the Credit Agreement for payments
in an Available Foreign Currency with a copy to the address set forth in Section
3.14(b) of the Credit Agreement for payments in Dollars.
(D) Interest Period and the
last day thereof _______________________
(E) Interest rate basis** _______________________
The delivery of this Notice of Extension/Conversion shall constitute a
representation and warranty by the undersigned of the correctness of the matters
specified in subsections (ii), (iii), (iv), (v) and (vi) of Sections 5.2.
Very truly yours,
[▇▇▇▇ CORPORATION]
[▇▇▇▇ GRAPHICS EUROPE LIMITED]
[▇▇▇▇ GRAPHICS EUROPE B.V.]
By:____________________________________
Title:
----------------
** All Foreign Currency Loans will bear interest on the basis of the
Eurodollar Rate.
Schedule 1.1E
-------------
INVESTMENTS
Schedule 1.1F
-------------
LIENS
Schedule 2.1(a)
--------------
LENDERS
================================================================================
Revolving Commitment
Name and Address of Lender Commitment Percentage
--------------------------------------------------------------------------------
Bank of America, N.A.
Independence Center, 15th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services $25,000,000 50%
--------------------------------------------------------------------------------
National City Bank
One South Broad Street
13th Floor Loc 01-5997
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $7,500,000 15%
--------------------------------------------------------------------------------
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $10,000,000 20%
--------------------------------------------------------------------------------
Mellon Bank, N.A.
Plymouth Meeting Executive Campus
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Plymouth Meeting, Pennsylvania 19462
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $7,500,000 15%
================================================================================
Schedule 2.3(b)-1
-----------------
FORM OF COMPETITIVE BID REQUEST
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇ Corporation (the "Borrower") refers to the Amended
and Restated Credit Agreement dated as of September 12, 2000 (as it may be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, ▇▇▇▇ Graphics Europe Limited, the other Credit
Parties party thereto, the Lenders party thereto and Bank of America, N.A., as
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.3(b) of the Credit Agreement it requests
solicitation of Competitive Bids under the Credit Agreement, and in connection
therewith sets forth below the terms on which the related Competitive Loan
borrowing is requested to be made:
(A) Date of Competitive Loan borrowing
(which is a Business Day) __________________
(B) Principal amount of
Competitive Loan borrowing __________________
(C) Interest Period and the last
day thereof __________________
The delivery of this Competitive Bid Request shall constitute a
representation and warranty by the Borrower of the correctness of the matters
specified in subsections (ii), (iii), (iv), (v) and (vi) of Sections 5.2.
Very truly yours,
▇▇▇▇ CORPORATION
By:_____________________________________
Title:__________________________________
Schedule 2.3(b)-2
-----------------
FORM OF NOTICE OF RECEIPT OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Dear Sirs:
Reference is made to the Amended and Restated Credit Agreement dated as
of September 12, 2000 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among ▇▇▇▇ Corporation (the "Borrower"),
▇▇▇▇ Graphics Europe Limited, the other Credit Parties party thereto, the
Lenders party thereto and Bank of America, N.A., as Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower made a Competitive Bid Request
on _____________, 20__, pursuant to Section 2.3(b) of the Credit Agreement, and
in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) ______________, 20__ [Date of Proposed
Competitive Loan Borrowing]. Your Competitive Bid must comply with Section
2.3(c) of the Credit Agreement and the terms set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing __________________
(B) Principal amount of
Competitive Borrowing __________________
(C) Interest Period and the last
day thereof __________________
Very truly yours,
BANK OF AMERICA, N.A., as Agent
By________________________________
Title:____________________________
Schedule 2.3(c)
---------------
FORM OF COMPETITIVE BID
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Amended and Restated
Credit Agreement dated as of September 12, 2000 (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among ▇▇▇▇
Corporation (the "Borrower"), ▇▇▇▇ Graphics Europe Limited, the other Credit
Parties party thereto, the Lenders party thereto and Bank of America, N.A., as
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The undersigned
hereby makes a Competitive Bid pursuant to Section 2.3(c) of the Credit
Agreement, in response to the Competitive Bid Request made by the Borrower on
________________, 20__, and in that connection sets forth below the terms on
which such Competitive Bid is made:
(A) Principal Amount ____________________
(B) Competitive Bid Rate ____________________
(C) Interest Period and last
day thereof ____________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.3(e) of
the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:______________________________
Title:___________________________
Schedule 2.3(e)
---------------
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇ Corporation (the "Borrower") refers to the
Amended and Restated Credit Agreement dated as of September 12, 2000 (as it may
be amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, ▇▇▇▇ Graphics Europe Limited, the other Credit
Parties party thereto, the Lenders party thereto and Bank of America, N.A., as
Agent.
In accordance with Section 2.3(e) of the Credit Agreement, in
connection with our Competitive Bid Request dated ______________ and in
accordance with Section 2.3(e) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Competitive Bid Rate Lender
---------------- -------------------- ------
$ [%]
$ [%]
We hereby reject the following bids:
Principal Amount Competitive Bid Rate Lender
---------------- -------------------- ------
$ [%]
$ [%]
Very truly yours,
▇▇▇▇ CORPORATION
By:_____________________________
Title:__________________________
Schedule 6.9
------------
INTELLECTUAL PROPERTY
Schedule 6.12
-------------
ERISA DISCLOSURES
Schedule 6.14
-------------
SUBSIDIARIES
Schedule 6.16
-------------
ENVIRONMENTAL DISCLOSURES
Schedule 7.1(c)
---------------
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 20___.
I, ____________________, Chief Financial Officer, of ▇▇▇▇ Corporation
(the "Borrower") hereby certify that, to the best of my knowledge and belief,
with respect to that certain Amended and Restated Credit Agreement dated as of
September 12, 2000 (as amended, modified, extended or restated from time to
time, the "Credit Agreement"; all of the defined terms in the Credit Agreement
are incorporated herein by reference) among the Borrower, ▇▇▇▇ Graphics Europe
Limited, the other Credit Parties party thereto, the Lenders party thereto and
Bank of America, N.A., as Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis, subject to changes
resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or,
if none, the Closing Date) no Default or Event of Default has
occurred under the Credit Agreement; and
Delivered herewith are detailed calculations demonstrating compliance by the
Credit Parties with the financial covenants contained in Section 7.11 of the
Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 20__.
▇▇▇▇ CORPORATION
--------------------------------
Title:
Attachment to Officer's Certificate
-----------------------------------
Computation of Financial Covenants
Schedule 7.12
-------------
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
20__, is by and between _____________________, a ___________________ (the
"Subsidiary"), and BANK OF AMERICA, N.A., in its capacity as Agent under that
certain Amended and Restated Credit Agreement (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"), dated as of
September 12, 2000, by and among ▇▇▇▇ CORPORATION, a Pennsylvania corporation
(the "Borrower"), the other Credit Parties party thereto, the Lenders party
thereto and Bank of America, N.A., as Agent. All of the defined terms in the
Credit Agreement are incorporated herein by reference.
The Borrower is required by, or has otherwise elected pursuant to,
Section 7.12 of the Credit Agreement to cause the Subsidiary to become a
"Guarantor".
Accordingly, the Subsidiary hereby agrees as follows with the Agent, for
the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Credit Agreement and a "Guarantor" for all purposes of the Credit Agreement, and
shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Agreement. The Subsidiary hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Credit Agreement, including without limitation (i) all of the
representations and warranties set forth in Section 6 of the Credit Agreement as
they relate to such Subsidiary, (ii) all of the affirmative and negative
covenants set forth in Sections 7 and 8 of the Credit Agreement and (iii) all of
the undertakings and waivers set forth in Section 3 of the Credit Agreement
(subject to the limitations set forth therein). Without limiting the generality
of the foregoing terms of this paragraph 1, the Subsidiary hereby (i) subject to
the limitation set forth in Section 4.1 of the Credit Agreement, jointly and
severally together with the other Guarantors, guarantees to each Lender and the
Agent, as provided in Section 4 of the Credit Agreement, the prompt payment and
performance of the Borrowers' Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in
accordance with the terms thereof and (ii) agrees that if any of the Borrowers'
Obligations are not paid or performed in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise), the
Subsidiary will, jointly and severally together with the other Guarantors,
promptly pay and perform the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Borrowers' Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
2. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder Agreement to
be duly executed by its authorized officers, and the Agent, for the benefit of
the Lenders, has caused the same to be accepted by its authorized officer, as of
the day and year first above written.
[SUBSIDIARY]
By____________________________
Title_________________________
Acknowledged and accepted:
BANK OF AMERICA, N.A., as Agent
By______________________________
Title___________________________
Schedule 8.1
------------
INDEBTEDNESS
Schedule 11.3(b)
----------------
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of ________, 200_ is entered
into between ________________ ("Assignor") and ____________________
("Assignee").
Reference is made to the Amended and Restated Credit Agreement dated as
of September 12, 2000, as amended and modified from time to time thereafter (the
"Credit Agreement") among ▇▇▇▇ Corporation, ▇▇▇▇ Graphics Europe Limited, ▇▇▇▇
Graphics Europe B.V., the other Credit Parties party thereto, the Lenders party
thereto and Bank of America, N.A., as Agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below, the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth below in the Commitments of the Assignor on the effective
date of the assignment designated below (the "Effective Date") and the Revolving
Loans owing to the Assignor which are outstanding on the Effective Date,
together with unpaid interest accrued on the assigned Loans to the Effective
Date and the amount, if any, set forth below of the Fees accrued to the
Effective Date for the account of the Assignor. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 11.3(b) of the Credit Agreement,
a copy of which has been received by each such party. From and after the
Effective Date (i) the Assignee, if it is not already a Lender under the Credit
Agreement, shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of North Carolina.
3. Terms of Assignment
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:
(e) Revolving Loan Commitment
Percentage Assigned (expressed
as a percentage set forth
to at least 8 decimals) %
(f) Revolving Loan Commitment
Percentage of Assignor after
Assignment (set forth to at
least 8 decimals) %
(g) Total Revolving Loans outstanding
as of Effective Date $_____________
(h) Principal Amount of Revolving
Loans assigned on Effective
Date (the amount set forth
in (g) multiplied by the
percentage set forth in (e)) $_____________
(i) Total Foreign Currency Loans
outstanding as of Effective Date $_____________
(j) Principal Amount of Foreign
Currency Loans assigned on
Effective Date (the amount
set forth in (i) multiplied
by the percentage set forth in (e)) $_____________
The terms set forth above are hereby agreed to:
____________________, as Assignor
By:______________________________
Title:
_____________________, as Assignee
By:______________________________
Title:
CONSENTED TO:
BANK OF AMERICA, N.A., as Agent
By:_____________________________
Title:
▇▇▇▇ CORPORATION
By:_____________________________
Title: