AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of March
14, 1996 (as amended, supplemented or modified from time to time, the
"Agreement") is entered into among DynCorp, a Delaware corporation (the
"Borrower"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance, and
Citicorp North America, Inc., a Delaware corporation ("Citicorp"), in its
capacity as agent for the Lenders hereunder (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower entered into the "1995 Credit Agreement" (as
hereinafter defined) pursuant to which Citicorp made certain revolving loans to
Borrower;
WHEREAS, Borrower has requested an increase in the revolving
credit commitments under the 1995 Credit Agreement, an extension of the term of
the 1995 Credit Agreement, provision of letters of credit under its credit
facilities evidenced by the 1995 Credit Agreement, and certain other amendments
and modifications of the 1995 Credit Agreement;
WHEREAS, the parties hereto have agreed to amend and restate
the 1995 Credit Agreement to facilitate the aforesaid and set forth the terms
and conditions under which loans, letters of credit and other financial
accommodations will hereafter be made available to the Borrower for the benefit
of the Borrower and its subsidiaries;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto hereby agree that the 1995 Credit Agreement is amended and
restated in its entirety by this Agreement.
ARTICLE I ARTICLE I
DEFINITIONS
1.01. Certain Defined TermsCertain Defined Terms. The
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined:
"Accommodation Obligation" means any Contractual Obligation,
contingent or otherwise, of one Person with respect to the guaranty of the
payment, performance, collection, or discharge of any Indebtedness of another
Person (i) for borrowed money, (ii) evidenced by bonds, debentures, notes or
other similar instruments, (iii) to pay the deferred purchase price of property
or services, except accounts payable, accrued expenses and other current
liabilities arising in the ordinary course of business, (iv) as lessee under
leases which shall have been or should be, in accordance with GAAP, recorded as
Capital Leases, (v) contingent, or otherwise, under acceptance, letter of credit
or similar facilities, (vi) in respect of the purchase, redemption, retirement,
defeasance or other acquisition for value of any Capital Stock of such Person or
any warrants, rights or options to acquire such Capital Stock, or (vii) in
respect of Hedge Agreements, if the primary purpose or intent thereof by the
Person incurring the Accommodation Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness, obligation or liability
will be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders thereof will be protected (in whole or in
part) against loss in respect thereof. The amount of any Accommodation
Obligation shall be equal to the amount of the Indebtedness, obligation or
liability so guaranteed or otherwise supported; provided, that (a) if the
liability of the Person extending such guaranty or support is limited with
respect thereto to an amount less than the Indebtedness, obligation or liability
guaranteed or supported, or is limited to recourse against a particular asset or
assets of such Person, the amount of the corresponding Accommodation Obligation
shall be limited (in the case of a guaranty or other support limited by amount)
to such lesser amount or (in the case of a guaranty or other support limited by
recourse to a particular asset or assets) to the value at which such asset or
assets would, in conformity with GAAP, be reflected on or valued for the
purposes of preparing a consolidated balance sheet of such Person as at such
determination date; and (b) if any obligation or liability is guaranteed or
otherwise supported jointly and severally by a Person and others, then the
amount of the obligation or liability of such Person with respect to such
guaranty or other support to be included in the amount of such Person's
Accommodation Obligation shall be the whole principal amount so guaranteed or
otherwise supported.
"Acquisition Loan" means a Loan, the proceeds of which are
used in connection with the making of a Permitted Acquisition.
"Affiliate", as applied to any Person, means any other Person
that directly or indirectly controls, is controlled by, or is under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to vote five percent (5.0%) or
more of the Securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting Securities or
by contract or otherwise.
"Agent" means Citicorp and each successor agent appointed
pursuant to the terms of Article XII of this Agreement.
"Agreement" is defined in the preamble hereto.
"Applicable Lending Office" means, with respect to a
particular Lender, its Eurodollar Lending Office in respect of provisions
relating to Eurodollar Rate Loans and its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Assignment and Acceptance" means an Assignment and Acceptance
in substantially the form of Exhibit A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Agent in connection with
an assignment of a Lender's interest under this Agreement in accordance with the
provisions of Section 14.01.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. ▇▇.▇▇. 101 et seq.), as amended from time to time, and any successor
statute.
"Base Eurodollar Rate" means, with respect to any Eurodollar
Interest Period applicable to a Borrowing of Eurodollar Rate Loans, an interest
rate per annum determined by the Agent to be the average (rounded upward to the
nearest whole multiple of one-sixteenth of one percent (0.0625%) per annum if
such average is not such a multiple) of the rates per annum specified by notice
to the Agent by Citibank as the rate per annum at which deposits in Dollars are
offered by the principal office of Citibank in London, England to major banks in
the London interbank market at approximately 11:00 a.m. (London time) on the
Eurodollar Interest Rate Determination Date for such Eurodollar Interest Period
for a period equal to such Eurodollar Interest Period and in an amount
substantially equal to the amount of the Eurodollar Rate Loan to be outstanding
to Citicorp for such Eurodollar Interest Period.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one
percent) of (i) 1/2 of one percent per annum, plus (ii) the rate per
annum obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market
banks, such three-week moving average being determined weekly on each
Monday (or, if any such date is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time deposits in
the United States, plus (iii) the average during such three-week period
of the annual assessment rates estimated by Citibank for determining
the then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States.
"Base Rate Loans" means all Loans which bear interest at a
rate determined by reference to the Base Rate as provided in Section 4.01(a).
"Base Rate Margin" means a rate equal to (i) one and
one-quarter percent (1.25%) per annum during the period commencing on the
Closing Date and ending on December 31, 1996 and (ii) from and after December
31, 1996, (a) one percent (1.00%) per annum provided that the ratio of the
average of Borrower's Funded Debt as of the last day of each Fiscal Month in the
Fiscal Quarter then ended to Consolidated EBITDA for the four consecutive Fiscal
Quarters then ended is less than or equal to 3.5 : 1; (b) one and one-quarter
percent (1.25%) per annum provided that the ratio of the average of Borrower's
Funded Debt as of the last day of each Fiscal Month in the Fiscal Quarter then
ended to Consolidated EBITDA for the four consecutive Fiscal Quarters then ended
is greater than 3.5 : 1 and less than or equal to 4.0 : 1; and (c) one and
one-half percent (1.50%) per annum provided that the ratio of the average of
Borrower's Funded Debt as of the last day of each Fiscal Month in the Fiscal
Quarter then ended to Consolidated EBITDA for the four consecutive Fiscal
Quarters then ended is greater than 4.0 : 1 and less than 4.5 : 1. The
applicable Base Rate Margin shall be determined on the date the Financial
Statements for the last month of each Fiscal Quarter are due pursuant to Section
7.01(a) as of the end of such Fiscal Quarter and be effective during the period
commencing on such due date and ending on the day immediately preceding the due
date for Financial Statements for the last month of the Fiscal Quarter in which
such determination is made.
"Benefit Plan" means a defined benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Employee
Benefit Plan) in respect of which the Borrower or any ERISA Affiliate is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"Borrower" is defined in the preamble of this Agreement.
"Borrower Pledge Agreement" means that certain Pledge
Agreement dated as of July 25, 1995 executed by the Borrower in favor of the
Agent for the benefit of the Holders pursuant to which the issued and
outstanding Capital Stock of certain of Borrower's Subsidiaries is pledged as
part of the Collateral securing the payment and performance of the Obligations.
"Borrower Security Agreement" means that certain Security
Agreement dated as of July 25, 1995 executed by the Borrower in favor of the
Agent for the benefit of the Holders pursuant to which the personal Property and
interests in Property of the Borrower more specifically described therein are
pledged as part of the Collateral securing the payment and performance of the
Obligations.
"Borrowing" means a borrowing consisting of Loans of the same
type made, continued or converted on the same day.
"Business Activity Report" means (A) a Notice of Business
Activities Report from the State of New Jersey Division of Taxation or (B) a
Minnesota Business Activity Report from the Minnesota Department of Revenue.
"Business Day" means a day, in the applicable local time,
which is not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in New
York, New York and (ii) in the case of Eurodollar Rate Loans, in London,
England.
"Capital Expenditures" means, for any period, the aggregate of
all expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Borrower's or any of
its Subsidiaries' fixed asset accounts as reflected in any of their respective
balance sheets; provided, however, Capital Expenditures shall include that
portion of Capital Leases which is capitalized on the consolidated balance sheet
of the Borrower and its Subsidiaries.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls or
claims of any character with respect thereto.
"Cash Collateral" means cash or Cash Equivalents held by the
Agent or any of the Lenders as security for the Obligations.
"Cash Collateral Account" means an interest bearing account at
Citibank's office in New York, New York designated by the Agent into which Cash
Collateral shall be deposited, which account shall be under the sole dominion
and control of the Agent.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States government and backed
by the full faith and credit of the United States government; and (ii) domestic
and Eurodollar certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, any foreign bank, or its branches or agencies (fully protected
against currency fluctuations), which, at the time of acquisition, are rated A-1
(or better) by Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
or P-1 (or better) by ▇▇▇▇▇'▇ Investors Services, Inc.; provided, that (x) the
maturities of such Cash Equivalents shall not exceed one year and (y) such Cash
Equivalents shall be maintained in investment and other accounts of the Agent at
Citibank.
"Cash Management Account" means the Crestar Account and any
account opened or maintained by the Borrower at any financial institution in the
United States in substitution for the Crestar Account as permitted or required
by the terms of this Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ▇▇.▇▇. 9601 et seq., any
amendments thereto, any successor statutes, and any regulations promulgated
thereunder.
"Change of Control" means either of (i) any transaction or
series of transactions (including, without limitation, a tender offer, merger or
consolidation) the result of which is that any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act) other
than an Affiliate of the Borrower, becomes the "beneficial owner" (as defined in
Rule 13(d)(3) under the Securities Exchange Act) of more than forty percent
(40%) of the total aggregate voting power of all classes of the Capital Stock
which is voting stock of the Borrower and/or warrants or options to acquire such
Capital Stock, calculated on a fully diluted basis or (ii) individuals who as of
the Closing Date constituted the Borrower's Board of Directors (together with
any new directors whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's stockholders 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 then in office.
"Citibank" means Citibank, N.A., a national banking association.
"Citibank Collection Account" is defined in Section 3.04.
"Citicorp" is defined in the preamble of this Agreement.
"Claim" means any claim or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means March 14, 1996.
"Collateral" means all Property and interests in Property now
owned or hereafter acquired by the Borrower and the Guarantors upon which a Lien
is granted under the Borrower Pledge Agreement, the Borrower Security Agreement,
the Guarantor Pledge Agreements and the Guarantor Security Agreements.
"Commercial Letter of Credit" means any documentary letter of
credit for the account of the Borrower or any of the Borrower's Subsidiaries
which is drawable upon presentation of documents evidencing the sale or shipment
of goods purchased by the Borrower or such Subsidiary in the ordinary course of
its business.
"Commission" means the Securities and Exchange Commission and
any Person succeeding to the functions thereof.
"Commitment" means, with respect to any Lender at the time of
determination thereof, the aggregate amount of such Lender's Revolving Credit
Commitment and "Commitments" means the aggregate amount of all Revolving Credit
Commitments.
"Commitment Letter" means that certain letter addressed to the
Borrower from Citicorp Securities, Inc. dated February 8, 1996 and accepted by
the Borrower on February 9, 1996.
"Compliance Certificate" is defined in Section 7.01(c).
"Computran Indebtedness" means the obligations of the Borrower
arising from the operations and indemnity obligations relating to the sale of
the Borrower's former Subsidiary, Dynalectric Company, and litigation among
Computran Systems Corporation, Dynalectric Company, and the Borrower.
"Consolidated EBITDA" means, without duplication, for any
period, (i) the sum of the amounts for such period of (a) Consolidated Net
Income, plus (b) provision for taxes based on income, plus (c) Consolidated
Interest Expense, plus (d) depreciation expense, plus (e) amortization expense,
plus (f) Restricted Stock Plan expense, plus (g) Net ESOP Contributions, plus
(h) non-cash 401(k) matching contributions and other compensation expense
payable in Capital Stock of the Borrower which is common stock, minus (ii) the
amount for such period of interest income, all as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Borrower and its Subsidiaries on a consolidated
basis for such period as determined in accordance with GAAP.
"Consolidated Net Cash Interest Expense" means, for any
period, (i) Consolidated Interest Expense for such period, but excluding
interest expense not payable in cash and amortization of debt discount and
deferred financing costs, minus (ii) consolidated cash interest income for such
period.
"Consolidated Net Income" means, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated basis
for such period, excluding the sum of (i) extraordinary items for such period,
net of taxes based on income, plus (ii) dividends for such period on Capital
Stock which is preferred stock, all as determined in accordance with GAAP.
"Contaminant" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos-containing material,
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in federal,
state or local laws or regulations.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"Crestar Account" means Borrower's depository account no.
▇▇▇▇▇▇▇▇ at Crestar Bank in Alexandria, Virginia.
"Cure Loans" is defined in Section 3.02(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(ii) Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other Liens imposed
by law created in the ordinary course of business for amounts not yet
due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(iii) Liens (other than any Lien in favor of the PBGC)
incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A) all
such Liens do not in the aggregate materially detract from the value of
the Borrower's or any of its Subsidiaries' assets or Property or
materially impair the use thereof in the operation of their respective
businesses, and (B) all Liens of attachment or judgment and Liens
securing bonds to stay judgments or in connection with appeals do not
secure at any time an aggregate amount exceeding $2,000,000; and
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not interfere with
the ordinary conduct of the business of the Borrower or any of its
Subsidiaries.
"Designated Prepayment" means each mandatory prepayment
required by Section 3.01(b)(i) through (iv).
"DOL" means the United States Department of Labor and any
Person succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender,
such Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Agent.
"Dyn Funding" means Dyn Funding Corporation, a Delaware
corporation and Wholly-Owned Subsidiary of the Borrower.
"Eligible Assignee" means (i) a Lender or any Affiliate
thereof; (ii) a commercial bank having total assets in excess of $2,500,000,000;
(iii) the central bank of any country which is a member of the Organization for
Economic Cooperation and Development; or (iv) a finance company, insurance
company, other financial institution or fund, acceptable to the Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $300,000,000.
"Environmental, Health or Safety Requirements of Law" means
all Requirements of Law derived from or relating to any federal, state or local
law, ordinance, rule, regulation, Permit, license or other binding determination
of any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing, the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act, OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Acts" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure of
any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Industrial Site Recovery Acts" or
"Responsible Property Transfer Acts".
"Equipment" means, with respect to any Person, all of such
Person's present and future (i) equipment, including, without limitation,
machinery, manufacturing, distribution, selling, data processing and office
equipment, assembly systems, tools, molds, dies, fixtures, appliances,
furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and trade
fixtures, (ii) other tangible personal property (other than such Person's
Inventory), and (iii) any and all accessions, parts and appurtenances attached
to any of the foregoing or used in connection therewith, and any substitutions
therefor and replacements, products and proceeds thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, 29 U.S.C. ▇▇.▇▇. 1000 et seq., any amendments thereto, any successor
statutes, and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Internal Revenue Code) with
the Borrower; and (iii) a member of the same affiliated service group (within
the meaning of Section 414(m) of the Internal Revenue Code) as the Borrower, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"ESOP" means the DynCorp Employee Stock Ownership Plan dated
as of January 1, 1988.
"ESOP Documents" means, collectively, that certain
Subscription Agreement dated as of September 9, 1988 between Borrower and
Manufacturers Hanover Trust Company, as trustee of the DynCorp Employee Stock
Ownership Trust established pursuant to the DynCorp Employee Stock Ownership
Trust Agreement ("Trust Agreement") adopted as part of the ESOP, the Trust
Agreement, the Plan, and that certain 1995 Stock Issuance Agreement dated March
30, 1995 between Borrower and the DynCorp Employee Stock Ownership Trust, in
each instance, as amended, supplemented or otherwise modified from time to time
as permitted under the terms of this Agreement.
"ESOP Fixed Charge Coverage Ratio" means, for any period, the
ratio of (i) the amount calculated as Consolidated EBITDA minus all federal
income taxes paid in cash during such period attributable to the income of
continuing operations for that period minus the aggregate amount of Capital
Expenditures made in cash during such period to (ii) Fixed Charges.
"Eurodollar Affiliate" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Agent.
"Eurodollar Interest Payment Date" means (i) with respect to
any Eurodollar Rate Loan, the last day of each Eurodollar Interest Period
applicable to such Loan and (ii) with respect to any Eurodollar Rate Loan having
a Eurodollar Interest Period in excess of three (3) calendar months, the last
day of each three (3) calendar month interval during such Eurodollar Interest
Period.
"Eurodollar Interest Period" is defined in Section 4.02(b).
"Eurodollar Interest Rate Determination Date" is defined in
Section 4.02(c).
"Eurodollar Lending Office" means, with respect to any Lender,
the office or offices of such Lender (if any) set forth below such Lender's name
under the heading "Eurodollar Lending Office" on the signature pages hereof or
on the Assignment and Acceptance by which it became a Lender or such office or
offices of such Lender as it may from time to time specify by written notice to
the Borrower and the Agent.
"Eurodollar Rate" means, with respect to any Eurodollar
Interest Period applicable to a Eurodollar Rate Loan, an interest rate per annum
obtained by dividing (i) the Base Eurodollar Rate applicable to that Eurodollar
Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage in effect on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loans" means those Loans outstanding which
bear interest at a rate determined by reference to the Eurodollar Rate and the
Eurodollar Rate Margin as provided in Section 4.01(a).
"Eurodollar Rate Margin" means a rate equal to (i) two and
one-half percent (2.50%) per annum during the period commencing on the Closing
Date and ending on December 31, 1996 and (ii) from and after December 31, 1996,
(a) two and one-quarter percent (2.25%) per annum provided that the ratio of the
average of Borrower's Funded Debt as of the last day of each Fiscal Month in the
Fiscal Quarter then ended to Consolidated EBITDA for the four consecutive Fiscal
Quarters then ended is less than or equal to 3.5 : 1; (b) two and one-half
percent (2.50%) per annum provided that the ratio of the average of Borrower's
Funded Debt as of the last day of each Fiscal Month in the Fiscal Quarter then
ended to Consolidated EBITDA for the four consecutive Fiscal Quarters then ended
is greater than 3.5 : 1 and less than or equal to 4.0 : 1; and (c) two and
three-quarters percent (2.75%) per annum provided that the ratio of the average
of Borrower's Funded Debt as of the last day of each Fiscal Month in the Fiscal
Quarter then ended to Consolidated EBITDA for the four consecutive Fiscal
Quarters then ended is greater than 4.0 : 1 and less than 4.5 : 1. The
applicable Eurodollar Rate Margin shall be determined on the date the Financial
Statements for the last month of each Fiscal Quarter are due pursuant to Section
7.01(a) as of the end of the such Fiscal Quarter and be effective during the
period commencing on such due date and ending on the day immediately preceding
the due date for Financial Statements for the last month of the Fiscal Quarter
in which such determination is made.
"Eurodollar Reserve Percentage" means, for any day, that
percentage which is in effect on such day, as prescribed by the Federal Reserve
Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York, New York with
deposits exceeding Five Billion Dollars ($5,000,000,000) in respect of
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any bank to United States
residents).
"Event of Default" means any of the occurrences set forth in
Section 11.01 after the expiration of any applicable grace period, as expressly
provided in Section 11.01.
"Existing Letters of Credit" means those letters of credit
identified on Schedule 1.01.1 attached hereto and made a part hereof.
"Existing Receivables Purchase Documents" means the
Receivables Purchase Agreement, the Servicing Agreement, the Indenture and the
instruments and documents executed and delivered in connection therewith.
"Existing Securitization Program" means the financing
transactions set forth in the Existing Receivables Purchase Documents.
"Fair Market Value" means, with respect to any asset, the
value of the consideration obtainable in a sale of such asset in the open
market, assuming a sale by a willing seller to a willing purchaser dealing at
arm's length and arranged in an orderly manner over a reasonable period of time,
each having reasonable knowledge of the nature and characteristics of such
asset, neither being under any compulsion to act, and, if in excess of
$5,000,000, as determined in good faith by the Board of Directors of the
Borrower.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day in New York, New York, for the next
preceding Business Day) in New York, New York by the Federal Reserve Bank of New
York, or if such rate is not so published for any day which is a Business Day in
New York, New York, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"Fee Letter" means that certain letter agreement dated
February 9, 1996 between the Borrower and Citicorp.
"Financial Officer" means any of the Borrower's senior vice
president and chief financial officer; vice president and controller; treasurer;
assistant treasurer; and vice president, contract administration and operational
reporting.
"Financial Statements" means statements of income and retained
earnings, statements of cash flow, and balance sheets.
"Fiscal Month" means each period commencing on the date
immediately succeeding the "Effective Close Date" for the prior fiscal month and
ending on the "Effective Close Date" for the applicable fiscal month as set
forth on Schedule 1.01.2 attached hereto, respectively, for the Borrower and its
Subsidiaries.
"Fiscal Quarter" means each period commencing on the date
immediately succeeding the "Effective Close Date" for the prior fiscal quarter
and ending on the "Effective Close Date" for the applicable fiscal quarter as
set forth on Schedule 1.01.2 attached hereto, respectively, for the Borrower and
its Subsidiaries.
"Fiscal Year" means the fiscal year of the Borrower and its
Subsidiaries for accounting and tax purposes, which shall be the 12-month period
ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) the amount calculated as (i) Consolidated EBITDA minus (ii) all federal
income taxes paid in cash during such period attributable to the income of
continuing operations for that period minus (iii) the aggregate amount of
Capital Expenditures made in cash during such period minus (iv) repurchases by
the Borrower of Capital Stock of the Borrower during such period paid for in
cash (other than as permitted under Section 9.06(b), (d), (e), (f), (g) and (h)
and repurchases of approximately 578,236 shares of Capital Stock and warrants
for Capital Stock of the Borrower from former employees of the Borrower not
referenced in such clauses of Section 9.06 and former Subsidiaries of the
Borrower during the period January 1 through February 29, 1996) to (b) Fixed
Charges.
"Fixed Charges" means, for any period, Consolidated Net Cash
Interest Expense plus the aggregate amount of scheduled payments of principal of
Funded Debt during such period, plus the aggregate amount of stock repurchases
under the ESOP Documents paid for in cash by the Borrower during such period,
plus repurchases by the Borrower of Capital Stock of the Borrower during such
period paid for in cash as permitted under Section 9.06 (f), (g) and (h), plus
the scheduled reduction, if any, in the Revolving Credit Commitment during the
period to the extent of (i) twenty percent (20%) of the amount of Loans
outstanding on March 14, 1998 for the period commencing on March 14, 1998 and
ending on March 13, 1999 and (ii) twenty percent (20%) of the amount of Loans
outstanding on March 14, 1999 for the period commencing on March 14, 1999 and
ending on March 13, 2000.
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees of the Borrower, any of its Subsidiaries or any
of its ERISA Affiliates and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"Foreign Pension Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which (i) is maintained or contributed to for
the benefit of employees of the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of
ERISA, and (iii) under applicable local law, is required to be funded through a
trust or other funding vehicle.
"Foreign Subsidiary" means a Subsidiary domiciled outside of
the United States of America and its states, districts and possessions.
"Fronting Fee" is defined in Section 4.03(a).
"Funded Debt" means Indebtedness of the Borrower and its
Subsidiaries for borrowed money (determined in accordance with GAAP), including,
without limitation, Indebtedness under Capital Leases, and Indebtedness arising
under the Securitization Program.
"Funding Date" means, with respect to any Loan, the date of
funding of such Loan.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the American Institute of Certified
Public Accountants' Accounting Principles Board and Financial Accounting
Standards Board or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession as in effect on
the date hereof (unless otherwise specified herein as in effect on another date
or dates).
"General Intangibles" means, with respect to any Person, all
of such Person's present and future (i) general intangibles, (ii) rights,
interests, choses in action, causes of action, claims and other intangible
property of every kind and nature (other than Receivables), (iii) corporate and
other business records, (iv) loans, royalties, and other obligations receivable,
(v) trademarks, registered trademarks, trademark applications, service marks,
registered service marks, service ▇▇▇▇ applications, patents, registered
patents, patent applications, trade names, rights of use of any name, labels,
fictitious names, inventions, designs, trade secrets, computer programs,
software, printouts and other computer materials, goodwill, registrations,
copyrights, copyright applications, permits, licenses, franchises, customer
lists, credit files, correspondence, and advertising materials, (vi) customer
and supplier contracts, firm sale orders, rights under license and franchise
agreements, rights under tax sharing agreements, and other contracts and
contract rights, in each instance other than contracts and such agreements which
by their respective terms are non-assignable, (vii) interests in partnerships
and joint ventures, in each instance other than interests which by the terms of
the partnership or joint venture documents are non-assignable, (viii) tax
refunds and tax refund claims, (ix) right, title and interest under leases,
subleases, licenses and concessions and other agreements relating to property,
in each instance other than leases, subleases, licenses, concession and such
other agreements which by their respective terms are non-assignable, (x) deposit
accounts (general or special) with any bank or other financial institution, (xi)
credits with and other claims against third parties (including carriers and
shippers), (xii) rights to indemnification and with respect to support and
keep-well agreements, (xiii) reversionary interests in pension and profit
sharing plans and reversionary, beneficial and residual interests in trusts,
(xiv) proceeds of insurance of which such Person is beneficiary, (xv) letters of
credit and proceeds thereof, guarantees, Liens, security interests and other
security held by or granted to such Person, (xvi) rights in and under
instruments, securities (certificated and uncertificated), documents of title
and investment property, and (xvii) all rights in any goods, merchandise or
Inventory which any of the foregoing may represent.
"Government Contract" means any contract, agreement, work
authorization, lease, commitment for sale or purchase order of Borrower or its
Subsidiaries that is with the United States Government, or any state, local or
foreign government, including, without limitation, all contracts and work
authorizations to supply goods and services to the United States Government, or
any state, local or foreign government.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantor Pledge Agreements" means those certain Pledge
Agreements executed by Guarantors in favor of the Agent for the benefit of the
Holders pursuant to which the issued and outstanding Capital Stock of
Subsidiaries of the Guarantors executing and delivering the same is pledged as
part of the Collateral securing the payment and performance of the Obligations.
"Guarantor Security Agreements" means those certain Security
Agreements executed by Guarantors in favor of the Agent for the benefit of the
Holders pursuant to which the personal Property and interests in Property of the
Guarantors executing and delivering the same, as more specifically described
therein, are pledged as part of the Collateral securing the payment and
performance of the Obligations.
"Guarantors" means those Persons identified on Schedule 1.01.3
attached hereto, each Person that becomes a Subsidiary of the Borrower in
connection with the making of a Permitted Acquisition, each Material Subsidiary
formed or acquired after the date hereof which is a Wholly-Owned Subsidiary, and
any other Subsidiary of the Borrower executing and delivering a guaranty of
payment and performance of all or any portion of the Obligations; provided,
however, that no Foreign Subsidiary of the Borrower shall be required to become
a Guarantor.
"Hedge Agreement" means any agreement, including, without
limitation, interest rate exchange, swap, collar or cap agreement, interest rate
future or option contract, currency swap agreement, currency future or option
contract, and other similar agreement evidencing an agreement or arrangement
intended to protect against fluctuation in interest rates and/or foreign
exchange rates or conversion rates for conversion of foreign currencies to
Dollars.
"Holder" means any Person entitled to enforce any of the
Obligations, whether or not such Person holds any evidence of Indebtedness,
including, without limitation, the Agent, each Lender, each Issuing Bank, the
Affiliate of the Agent at which the Citibank Collection Account is established,
and each Indemnified Party.
"Indebtedness", as applied to any Person, means, at any time,
without duplication, (a) all indebtedness, obligations or other liabilities of
such Person (i) for borrowed money or evidenced by debt Securities, debentures,
acceptances, notes or other similar instruments, and any accrued interest, fees
and charges relating thereto, (ii) under agreements in respect of obligations to
redeem, repurchase or exchange any Securities of such Person or to pay dividends
in respect of any Capital Stock (other than obligations with respect to puts
arising under the ESOP Documents), (iii) with respect to letters of credit
issued for such Person's account, (iv) to pay the deferred purchase price of
property or services, except accounts payable, accrued expenses and other
current liabilities arising in the ordinary course of business, (v) in respect
of Capital Leases, or (vi) under warranties and indemnities; (b) all
indebtedness, obligations or other liabilities of others secured by a Lien on
any property of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by such Person, all as of such time; (c) all
indebtedness, obligations or other liabilities of such Person in respect of
Hedge Agreements, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; (e) all indebtedness, obligations or
other liabilities of such Person under the Securitization Program; and (f) all
contingent liabilities accrued in accordance with GAAP with respect to any of
the foregoing.
"Indemnified Matters" is defined in Section 14.03.
"Indemnitees" is defined in Section 14.03.
"Indenture" means the Indenture date as of January 1, 1992
between Dyn Funding, as issuer, and Bankers Trust Company, as trustee, relating
to the 8.54% Contract Receivable Collateralized Notes, Series 1992-1, due 1997.
"Interest Coverage Ratio" means, for any period, the ratio of
(i) Borrower's Consolidated EBITDA to (ii) Consolidated Net Cash Interest
Expense.
"Internal Market" means a stock trading market maintained by
the Borrower or DynEx, Inc. (a Subsidiary of the Borrower) whereon existing
stockholders and other employees of the Borrower are able to buy and sell shares
of the Borrower's common stock at prices established by the Borrower's board of
directors on trading dates intended to be held once per calendar quarter.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, any
successor statute and any regulations or guidance promulgated thereunder.
"Inventory" means, with respect to any Person, all of such
Person's present and future (i) inventory, (ii) goods, merchandise and other
personal property furnished or to be furnished under any contract of service or
intended for sale or lease, and all consigned goods and all other items which
have previously constituted Equipment of such Person but are then currently
being held for sale or lease in the ordinary course of such Person's business,
(iii) raw materials, work-in-process and finished goods, (iv) materials and
supplies of any kind, nature or description used or consumed in such Person's
business or in connection with the manufacture, production, packing, shipping,
advertising, finishing or sale of any of the property described in clauses (i)
through (iii) above, (v) goods in which such Person has a joint or other
interest or right of any kind (including, without limitation, goods in which
such Person has an interest or right as consignee), and (vi) goods which are
returned to or repossessed by such Person; in each case whether in the
possession of such Person, a bailee, a consignee, or any other Person for sale,
storage, transit, processing, use or otherwise, and any and all documents for or
relating to any of the foregoing.
"Investment" means, with respect to any Person, (i) any
purchase or other acquisition by that Person of Securities, or of a beneficial
interest in Securities, issued by any other Person, (ii) any purchase by that
Person of all or substantially all of the assets of a business conducted by
another Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business. The
amount of any Investment shall be the original cost of such Investment, plus the
cost of all additions thereto less the amount of any return of capital or
principal or adjustments for decreases in value, write-downs or write-offs with
respect to such Investment.
"IRS" means the Internal Revenue Service and any Person
succeeding to the functions thereof.
"Issuing Bank" means Citibank and each Lender designated as an
"Issuing Bank" on the signature pages of the Assignment and Acceptance by which
it became a Lender and each other Lender approved by the Agent and Borrower who
has agreed to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to Section 2.04.
"Lender" means, as of the Closing Date, each financial
institution which is a signatory hereto as a Lender and, at any other given
time, each financial institution which is a party hereto as a Lender, whether as
a signatory hereto or pursuant to an Assignment and Acceptance.
"Letter of Credit" means any Commercial Letter of Credit or
Standby Letter of Credit other than an Existing Letter of Credit.
"Letter of Credit Fee" is defined in Section 4.03(a).
"Letter of Credit Obligations" means, at any particular time,
the sum of (i) all outstanding Reimbursement Obligations at such time plus (ii)
the aggregate undrawn face amount of all outstanding Letters of Credit, plus
(iii) the aggregate face amount of all Letters of Credit requested by the
Borrower but not yet issued (unless the request for an unissued Letter of Credit
has been denied by the Issuing Bank as referenced in Section 2.04(c)(i) or has
been withdrawn by the Borrower in writing prior to the issuance thereof).
"Letter of Credit Reimbursement Agreement" means, with respect
to a Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or several documents,
taken together) as the respective Issuing Bank from which the Letter of Credit
is requested may employ in the ordinary course of business for its own account,
with such modifications thereto as may be agreed upon by such Issuing Bank and
the Borrower and as are not materially adverse (in the judgment of such Issuing
Bank and the Agent) to the interests of the Lenders; provided, however, in the
event of any conflict between the terms of any Letter of Credit Reimbursement
Agreement and this Agreement, the terms of this Agreement shall control, and the
terms of this Agreement, the Borrower Pledge Agreement, the Borrower Security
Agreement, the Guarantor Pledge Agreements and the Guarantor Security Agreements
shall control with respect to matters pertaining to the Collateral.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, punitive damages, economic damages,
consequential damages, treble damages, and damages arising from injury or damage
or threat of damage to the environment, natural resources or public health or
welfare, costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs and fees and costs associated with any investigation,
feasibility or Remedial Action studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, deposit arrangement,
security interest, encumbrance, lien (statutory or other and including, without
limitation, any Environmental Lien), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever in
respect of any property of a Person, whether granted voluntarily or imposed by
law, and includes the interest of a lessor under a Capital Lease or under any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement or similar notice (other
than a financing statement filed by a "true" lessor pursuant to ss. 9-408 of the
Uniform Commercial Code), naming the owner of such property as debtor, under the
Uniform Commercial Code or other comparable law of any jurisdiction.
"Loan" is defined in Section 2.01(a).
"Loan Account" is defined in Section 3.03(b).
"Loan Documents" means this Agreement, the Notes, and all
other instruments, agreements and written Contractual Obligations between the
Borrower or any Guarantor and the Agent or any Lender delivered to either the
Agent or such Lender pursuant to or in connection with the transactions
contemplated hereby.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U and Regulation G.
"Material Adverse Effect" means a material adverse effect upon
(i) the financial condition, operations, assets or business of the Borrower and
its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any of
its Subsidiaries to perform their respective obligations under the Loan
Documents, or (iii) the ability of the Lenders or the Agent to enforce any of
the Loan Documents against the Borrower or the Guarantors.
"Material Government Contract" means any Government Contract
(or group of present or future related Government Contracts), other than
Government Contracts for which the period of performance has been completed,
with respect to which the estimated revenues generated or to be generated
pursuant thereto equals or exceeds $10,000,000 per annum.
"Material Subsidiary" means, individually, Dyn Funding, each
Subsidiary of the Borrower formed or acquired after the date hereof which
receives an initial contract to perform work for a customer, and each Guarantor;
"Material Subsidiaries" means, collectively, Dyn Funding, all such Subsidiaries
of the Borrower, and all Guarantors.
"MIS" means computerized management information system for
recording and maintenance of information regarding purchases, sales, aging,
categorization, and locations of Inventory, creation and aging of Receivables,
and accounts payable (including agings thereof).
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA (other than a Foreign Employee Benefit Plan)
which (i) is, or within the immediately preceding six (6) years was, contributed
to by either the Borrower or any ERISA Affiliate or in respect of which the
Borrower or any ERISA Affiliate has assumed any liability and (ii) is not a
Foreign Employee Benefit Plan.
"Net Cash Proceeds of Issuance of Equity Securities" means net
cash proceeds (including, cash equivalents readily convertible into cash, and
such proceeds of any notes received as consideration or any other non-cash
consideration) received by the Borrower or any Subsidiary of the Borrower on
account of the issuance of equity Securities of Borrower or any such Subsidiary
(other than (i) equity Securities of a Subsidiary issued to the Borrower, a
Subsidiary of the Borrower, the holder of a minority equity interest in such
Subsidiary or the holder of a fifty percent (50%) equity interest in such
Subsidiary if the Borrower or a Subsidiary of the Borrower holds the remaining
fifty percent (50%) equity interest in such Subsidiary, and (ii) Capital Stock
issued pursuant to Permitted Equity Securities Options) net of all transaction
costs and underwriters' discounts with respect thereto; provided, however, that
(a) cash proceeds, in an amount not to exceed $1,000,000 in the aggregate in any
Fiscal Year, of (1) Capital Stock issued upon conversion of existing outstanding
warrants, (2) Capital Stock issued upon exercise of options, and (3) Capital
Stock sold by the Borrower under the Internal Market for Borrower's Capital
Stock, and (b) Capital Stock contributions to the ESOP which are made in the
form of Capital Stock purchased with matching contributions of the purchase
price therefor, will be deemed not to be cash proceeds on account of the
issuance of equity Securities for purposes of this definition and the
requirements of Section 3.01(b)(iv); and provided further that, in the event the
amount of cash proceeds described in the foregoing proviso which is received in
any Fiscal Year is less than $1,000,000, the amount of the difference between
$1,000,000 and the actual amount of cash proceeds received in such Fiscal Year
shall be permitted to carry-over to succeeding Fiscal Years, until received, for
purposes of determining the amount of Net Cash Proceeds of Issuance of Equity
Securities required to be remitted to the Agent under Section 3.01(b)(iv).
"Net Cash Proceeds of Asset Securitization" means proceeds
received by the Borrower or any of its Subsidiaries in cash (including cash,
equivalents readily convertible into cash, and such proceeds of any notes
received as consideration of any other non-cash consideration) from the sale,
assignment or other disposition of (i) "Receivables" (as defined in the
Receivables Purchase Agreement) and "Transferor Receivables" (as defined in the
Servicing Agreement) of such Persons which, immediately prior to the time of
such sale, assignment or other disposition is subject to the Existing
Securitization Program and (ii) other Receivables of such Persons sold, assigned
or otherwise disposed of as part of the same transaction, in each instance, net
of the costs of sale, assignment or other disposition; provided, however, that
proceeds received in connection with the 1997 Receivables Purchase Documents
shall not be deemed to be Net Cash Proceeds of Asset Securitization; provided,
however, that Net Cash Proceeds of Asset Securitization shall not include
proceeds received by Dyn Funding from the repurchase or re-assignment of such
"Receivables" and "Transferor Receivables" from Dyn Funding.
"Net Cash Proceeds of Sale" means proceeds received by the
Borrower or any of its Subsidiaries in cash (including cash, equivalents readily
convertible into cash, and such proceeds of any notes received in consideration
of any other non-cash consideration) from the sale, assignment, transfer or
other disposition of Property other than (i) Property described in the
definition of "Net Cash Proceeds of Asset Securitization" and (ii) Property
described in Sections 9.02(a), (b), (c), (d), and (e), in each instance, net of
the costs of, and taxes incurred in respect of, such sale, assignment, transfer
or other disposition and amounts reimbursed to a Governmental Authority under
Government Contracts as a result of such sale, assignment, transfer or other
disposition; provided, however, that such proceeds received by a Subsidiary
which is not a Wholly-Owned Subsidiary of the Borrower included in Net Cash
Proceeds of Sale shall be limited to the amount thereof which is transferred to
the Borrower or a Wholly-Owned Subsidiary.
"Net ESOP Contributions" means, for any period, (i) cash
contributions made to the ESOP, but only to the extent that such contributions
are repaid by the ESOP to the Borrower in the form of either (a) cash payments
made under loan agreements between the Borrower and the ESOP or (b) cash
proceeds received from the sale of the Borrower's Capital Stock which is common
stock to the ESOP, plus (ii) to the extent expensed, the fair market value of
the Borrower's Capital Stock which is common stock contributed to the ESOP,
minus (iii) the amount of principal payments made pursuant to third party
ESOP-related financing agreements, all determined on a consolidated basis in
accordance with GAAP.
"New Stockholders Agreement" means that certain New
Stockholders Agreement dated as of March 11, 1994 among the Borrower, the
"Management Stockholders" (as defined therein) and the "Investors" (as defined
therein), as in effect on the Closing Date.
"1995 Credit Agreement" means that certain Credit Agreement
dated as of July 25, 1995 entered into by and among Borrower, Citicorp as agent
thereunder, and Citicorp as lender thereunder, as amended.
"1997 Receivables Purchase Documents" means those agreements,
instruments and documents executed and delivered as contemplated by Section 8.12
to effect the replacement of the Existing Receivables Purchase Documents.
"Non Pro Rata Loan" is defined in Section 3.02(b)(v).
"Note" means a promissory note in the form attached hereto as
Exhibit B payable to a Lender, evidencing the Loans made by such Lender and
executed by the Borrower as required by Section 3.03(a), as the same may be
amended, supplemented, modified or restated from time to time, and any
promissory note issued in substitution therefor; "Notes" means, collectively,
all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form
of Exhibit C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit D attached hereto and made a part hereof
with respect to a proposed conversion or continuation of a Loan pursuant to
Section 4.01(c).
"Obligations" means all Loans, advances (including, without
limitation, Protective Advances), debts, liabilities, obligations, covenants and
duties owing by the Borrower to the Agent, any Lender, any Affiliate of the
Agent or any Lender, or any Person entitled to indemnification pursuant to
Section 14.03 of this Agreement, of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument, arising
under this Agreement, the Notes or any other Loan Document, whether or not for
the payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, attorneys'
fees and disbursements and any other sum chargeable to the Borrower under this
Agreement or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a
certificate executed on behalf of such corporation by the chairman or
vice-chairman of its board of directors or its president, any of its
vice-presidents, its chief financial officer, or its treasurer.
"Operating Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as lessee which
is not a Capital Lease.
"Organizational Documents" means, with respect to any
corporation, limited liability company, or partnership (i) the
articles/certificate of incorporation (or the equivalent organizational
documents) of such corporation or limited liability company, (ii) the
partnership agreement executed by the partners in the partnership, (iii) the
by-laws (or the equivalent governing documents) of the corporation, limited
liability company or partnership, and (iv) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of any
class or series of such corporation's Capital Stock or such limited liability
company's or partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970,
29 U.S.C. ▇▇.▇▇. 651 et seq., any amendments thereto, any successor statutes and
any regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permits" means any permit, approval, authorization license,
variance, or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any acquisition of the Capital
Stock, assets or operations of any Person by the Borrower or any Material
Subsidiary (other than Dyn Funding) using proceeds of Acquisition Loans to pay
the purchase price and related fees and expenses; provided that such acquisition
is made at a time when, after giving effect to such acquisition and the related
financing thereof:
(i) no Event of Default or Potential Event of Default exists or would
occur;
(ii) on an historical, pro forma consolidated basis giving effect to
the acquisition for the twelve (12) consecutive months immediately
preceding the acquisition closing date with adjustments acceptable to
the Lenders and Borrower, the ratio of Borrower's Funded Debt to
Consolidated EBITDA does not exceed the then applicable maximum levels
set forth in Section 10.05;
(iii) the Person which is the subject of such acquisition shall be
engaged in the business of government or commercial enterprise
management, information technology, or aerospace services, or
associated with the operation of such a business or activities related
thereto;
(iv) the Revolving Credit Availability shall be at least $15,000,000;
(v) the aggregate outstanding Acquisition Loans shall not exceed
$25,000,000; and
(vi) the Person acquiring such assets or operations shall be the
Borrower or a Guarantor or, in the event of an acquisition of Capital
Stock of a Person, such Person shall become a Guarantor upon
consummation of such acquisition.
"Permitted Equity Securities Options" means the subscriptions,
options, warrants, rights, convertible securities and other agreements or
commitments relating to the issuance of equity Securities of the Borrower or any
Subsidiary of the Borrower identified as such on Schedule 1.01.4.
"Permitted Existing Accommodation Obligations" means those
Accommodation Obligations of the Borrower and its Subsidiaries identified as
such on Schedule 1.01.5.
"Permitted Existing Capital Leases" means those Capital Leases
of the Borrower and its Subsidiaries identified as such on Schedule 1.01.6.
"Permitted Existing Indebtedness" means the Indebtedness of
the Borrower and its Subsidiaries identified as such on Schedule 1.01.7.
"Permitted Existing Investments" means those Investments
identified as such on Schedule 1.01.8 and those Investments in Subsidiaries of
the Borrower identified on Schedule 6.01-C.
"Permitted Existing Liens" means the Liens on assets of the
Borrower or any of its Subsidiaries identified as such on Schedule 1.01.9.
"Person" means any natural person, corporation, limited
liability company, limited partnership, general partnership, joint stock
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity, and
any Governmental Authority.
"Plan" means an employee benefit plan defined in Section 3(3)
of ERISA (other than a Foreign Employee Benefit Plan) (i) in respect of which
the Borrower or any ERISA Affiliate is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA or the Borrower
or any ERISA Affiliate has assumed any liability and (ii) which is not a Foreign
Employee Benefit Plan.
"Potential Event of Default" means an event which, with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default.
"Principals" has the meaning set forth in paragraph (a)(2) of
Section 52.209-5 of the Federal Acquisition Regulation.
"Process Agent" is defined in Section 14.17(a)(i).
"Projections" means the financial projections (including,
without limitation, capital expenditure budget) and assumptions prepared by the
Borrower dated as of the Closing Date and attached hereto as Exhibit E.
"Property" means any Real Property or personal property,
underground storage tank or unit, Equipment, Inventory, General Intangible,
Receivable, or other asset owned, leased or operated by the Borrower or any
Subsidiary of the Borrower, as applicable, (including any surface water thereon,
and soil and groundwater thereunder).
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (i) the amount of such Lender's Revolving Credit
Commitment (as adjusted from time to time in accordance with the provisions of
this Agreement or any Assignment and Acceptance to which such Lender is a party)
by (ii) the aggregate amount of all of the Revolving Credit Commitments
(notwithstanding the termination of any such Commitments).
"Protective Advance" is defined in Section 12.09(a).
"RCRA" means the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ▇▇.▇▇. 6901 et seq., any amendments thereto, any successor
statutes, and any regulations promulgated thereunder.
"Real Property" means, with respect to any Person, all of such
Person's present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any improvements, buildings, structures and fixtures now or hereafter
located or erected thereon or attached thereto of every nature whatsoever (the
rights and interests described in clauses (i) and (ii) above being the
"Premises"), (iii) all easements, rights of way, gores of land or any lands
occupied by streets, ways, alleys, passages, sewer rights, water courses, water
rights and powers, and public places adjoining such land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in or on the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
"Receivables" means, with respect to any Person, all of such
Person's present and future (i) accounts, (ii) contract rights, chattel paper,
instruments, documents, deposit accounts, and other rights to payment of any
kind, whether or not arising out of or in connection with the sale or lease of
goods or the rendering of services, and whether or not earned by performance,
(iii) any of the foregoing which are not evidenced by instruments or chattel
paper, (iv) intercompany receivables, and any security documents executed in
connection therewith, (v) proceeds of any letters of credit or insurance
policies on which such Person is named as beneficiary, (vi) claims against third
parties for advances and other financial accommodations and any other
obligations whatsoever owing to such Person, (vii) rights in and to all security
agreements, leases, guarantees, instruments, securities, documents of title and
other contracts securing, evidencing, supporting or otherwise relating to any of
the foregoing, together with all rights in any goods, merchandise or Inventory
which any of the foregoing may represent, and (viii) rights in returned and
repossessed goods, merchandise and Inventory which any of the same may
represent, including, without limitation, any right of stoppage in transit.
Notwithstanding anything herein to the contrary, "Receivables" as defined herein
shall not include any "Receivable" as defined in the Receivables Purchase
Agreement or any "Transferor Receivable" as defined in the Servicing Agreement
or any item described in clauses (i) through (viii) above transferred to Dyn
Funding pursuant to the Receivables Purchase Agreement or transferred by Dyn
Funding to the Trustee pursuant to the Servicing Agreement.
"Receivables Purchase Agreement" means, collectively, those
certain Sale and Purchase Agreements dated as of or after January 1, 1992
between Dyn Funding and the sellers identified on Schedule 1.01.10 attached
hereto pursuant to which such sellers have sold and, from time to time hereafter
will sell, certain of their accounts to Dyn Funding.
"Receivables Purchase Documents" means, collectively, the
Existing Receivables Purchase Documents and the 1997 Receivables Purchase
Documents, in each instance, during the term the same are in effect.
"Register" is defined in Section 14.01(c).
"Regulation A" means Regulation A of the Federal Reserve Board
as in effect from time to time.
"Regulation G" means Regulation G of the Federal Reserve Board
as in effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board
as in effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board
as in effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board
as in effect from time to time.
"Reimbursement Date" is defined in Section 2.04(d)(i)(A).
"Reimbursement Obligations" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrower with respect to amounts
drawn under Letters of Credit.
"Release" means any release, spill, emission, leaking,
pumping, pouring, dumping, injection, deposit, disposal, abandonment, or
discarding of barrels, containers or other receptacles, discharge, emptying,
escape, dispersal, leaching or migration into the indoor or outdoor environment
or into or out of any Property, including the movement of Contaminants through
or in the air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up,
remove, treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in
Section 4043(b) of ERISA and the regulations promulgated thereunder as in effect
from time to time other than an event for which the thirty (30) day notice
requirement has been waived by the PBGC.
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations G, T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit or and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in
the aggregate, are greater than fifty-one percent (51%); provided, however,
that, in the event any of the Lenders shall have failed to fund its Pro Rata
Share of any Loan requested by the Borrower which such Lenders are obligated to
fund under the terms of this Agreement and any such failure has not been cured,
then for so long as such failure continues, "Requisite Lenders" means Lenders
(excluding all Lenders whose failure to fund their respective Pro Rata Shares of
such Loans have not been so cured) whose Pro Rata Shares represent more than
fifty-one percent (51%) of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are greater than
fifty-one percent (51%).
"Responsible Officer" means any of the president and chief
executive officer, executive vice presidents, senior vice presidents, general
counsel, and Financial Officers of the Borrower.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
or in any junior class of stock to the holders of that class, (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 equity
Securities of the Borrower or any of its Subsidiaries now or hereafter
outstanding, and (iii) any payment made to redeem, purchase, repurchase or
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of the Borrower or
any of its Subsidiaries now or hereafter outstanding.
"Restricted Stock Plan" means that certain DynCorp Restricted
Stock Plan dated May 26, 1989 relating to the award of up to 1,025,037
restricted stock units and vesting thereof based upon certain performance
criteria.
"Revolving Credit Availability" means, at any particular time,
the amount by which the Revolving Credit Commitments at such time exceeds the
Revolving Credit Obligations at such time.
"Revolving Credit Commitment" means, with respect to any
Lender, the obligation of such Lender to make Loans pursuant to the terms and
conditions of this Agreement, in an aggregate amount at any time outstanding
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Revolving Credit Commitment" on the signature pages
hereof or the signature page of the Assignment and Acceptance by which it became
a Lender, as modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable Assignment and Acceptance, and "Revolving
Credit Commitments" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum amount of which shall be (i)
$50,000,000 during the period commencing on the Closing Date and ending on ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇▇) $40,000,000 during the period commencing on March 14, 1998 and
ending on March 13, 1999, and (iii) $30,000,000 during the period commencing on
March 14, 1999, in each case, as reduced from time to time pursuant to Section
3.01.
"Revolving Credit Obligations" means, at any particular time,
the sum of (i) the aggregate amount of the outstanding principal amount of the
Loans at such time plus (ii) the Letter of Credit Obligations at such time.
"Revolving Credit Termination Date" means the earliest to
occur of (i) March 13, 2000 (or, if not a Business Day, the next preceding
Business Day), (ii) in the event the provisions of Section 8.12 are not fully
complied with, the date any Net Cash Proceeds of Asset Securitization are
received by the Borrower and/or any of its Subsidiaries, (iii) the date of
termination of the Revolving Credit Commitments pursuant to the terms of this
Agreement, and (iv) the date of acceleration of the Obligations pursuant to
Section 11.02.
"SARP" means the DynCorp Savings and Retirement Plan amended
and restated as of January 1, 1989.
"SARP Documents" means the SARP and related trust agreement
dated July 1, 1993 between the Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇ Trust Company.
"Securities" means any Capital Stock, shares, voting trust
certificates, limited partnership certificates, bonds, debentures, notes or
other evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, and investment property commonly known as "securities", including,
without limitation, any "security" as such term is defined in Section 8-102 of
the Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Securitization Program" means the financing transactions set
forth in the Existing Receivables Purchase Documents or the 1997 Receivables
Purchase Documents.
"Servicing Agreement" means that certain Servicing Agreement
dated as of January 1, 1992 among the Borrower, Dyn Funding, and the Trustee,
together with any and all supplements executed and delivered thereunder.
"Solvent", when used with respect to any Person, means that at
the time of determination:
(i) the Fair Market Value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts
become absolute and matured; and
(iii) it is then able and expects to be able to pay its
debts (including, without limitation, contingent debts and other
commitments)as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Standby Letter of Credit" means any letter of credit issued
for the account of the Borrower or any of the Borrower's Subsidiaries which is
not a Commercial Letter of Credit.
"Subsidiary" of a Person means any corporation, limited
liability company, general or limited partnership, or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions
with respect to such entity are at the time directly or indirectly owned or
controlled by such Person, one or more of the other subsidiaries of such Person
or any combination thereof.
"Taxes" is defined in Section 13.01(a).
"Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan; (ii) the withdrawal of the Borrower or any ERISA Affiliate
from a Benefit Plan during a plan year in which the Borrower or such ERISA
Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of ERISA
or the cessation of operations which results in the termination of employment of
20% of Benefit Plan participants who are employees of the Borrower or any ERISA
Affiliate; (iii) the imposition of an obligation on the Borrower or any ERISA
Affiliate under Section 4041 of ERISA to provide affected parties written notice
of intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; or (v) any event or condition which could reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Benefit Plan.
"Transaction Costs" means the fees, costs and expenses payable
by the Borrower in connection with the execution, delivery and performance of
the Loan Documents.
"Transaction Documents" means the Loan Documents and the
Receivables Purchase Documents.
"Trustee" means Bankers Trust Company, as Trustee under the
Indenture.
"Uniform Commercial Code" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time.
"Unused Commitment Fee" is defined in Section 4.03(b).
"Wholly-Owned Subsidiary" means a corporation (i) one hundred
percent (100%) of the Capital Stock of which is owned by the Borrower and/or any
Subsidiary of the Borrower or (ii) greater than ninety-eight percent (98%) of
the Capital Stock of which is owned by the Borrower or a Subsidiary of the
Borrower and the remainder of which Capital Stock is owned by a nominee of the
Borrower or such Subsidiary solely to comply with the Requirements of Law of the
jurisdiction governing such corporation's organization and existence.
1.02. Computation of Time PeriodsComputation of Time Periods.
In this Agreement, in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding". Periods of days referred to
in this Agreement shall be counted in calendar days unless Business Days are
expressly prescribed. Any period determined hereunder by reference to a month or
months or year or years shall end on the day in the relevant calendar month in
the relevant year, if applicable, immediately preceding the date numerically
corresponding to the first day of such period; provided that if such period
commences on the last day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month during which such period is
to end), such period shall, unless otherwise expressly required by the other
provisions of this Agreement, end on the last day of the calendar month and
further provided that Fiscal Months and Fiscal Quarters for the Borrower and its
Subsidiaries, respectively, shall end on the dates set forth in Schedule 1.01.2
for such Persons.
1.03. Accounting TermsAccounting Terms. Subject to Section
14.04, for purposes of this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with GAAP.
1.04. Other TermsOther Terms. All other terms contained in
this Agreement shall, unless the context indicates otherwise, have the meanings
assigned to such terms by the Uniform Commercial Code to the extent the same are
defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
AND LETTERS OF CREDIT
2.01. Revolving Credit FacilityRevolving Credit Facility. (a)
Availability. Subject to the terms and conditions set forth in this Agreement,
each Lender hereby severally and not jointly agrees to make revolving loans, in
Dollars (each individually, a "Loan" and, collectively, the "Loans") to the
Borrower from time to time during the period from the Closing Date to the
Business Day next preceding the Revolving Credit Termination Date, in an amount
not to exceed such Lender's Pro Rata Share of the Revolving Credit Availability
at such time. All Loans comprising the same Borrowing under this Agreement shall
be made by the Lenders simultaneously and proportionately to their then
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make a Loan hereunder nor shall the Revolving Credit Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
provisions of this Agreement, the Borrower may repay any outstanding Loan on any
day which is a Business Day and any amounts so repaid may be reborrowed, up to
the amount available under this Section 2.01(a) at the time of such Borrowing,
until the Business Day next preceding the Revolving Credit Termination Date;
provided, however, the Borrower shall, without notice or demand of any kind,
immediately make such repayments of the Loans to the extent necessary to reduce
the aggregate outstanding principal amount of the Revolving Credit Obligations
to an amount less than or equal to the Revolving Credit Commitments as in effect
from time to time.
(b) Notice of Borrowing. When the Borrower desires to borrow
under this Section 2.01, it shall deliver to the Agent a Notice of Borrowing,
signed by it, (i) on the Closing Date, in the case of a Borrowing of Loans on
the Closing Date and (ii) no later than 11:00 a.m. (New York time) (A) on the
Funding Date therefor, in the case of a Borrowing of Base Rate Loans after the
Closing Date and (B) at least three (3) Business Days in advance of the proposed
Funding Date therefor, in the case of a Borrowing of Eurodollar Rate Loans after
the Closing Date. Such Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount of the proposed
Borrowing, (iii) the Revolving Credit Availability as of the date of such Notice
of Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period, and (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing; and, in the event the proceeds of the
proposed Borrowing are to be used to acquire the Capital Stock, assets or
operations of another Person, include the certification of a Responsible Officer
that such acquisition is a Permitted Acquisition. The Loans made on the Closing
Date shall initially be Base Rate Loans and thereafter may be continued as Base
Rate Loans or converted into Eurodollar Rate Loans, in the manner provided in
Section 4.01(c) and subject to the conditions therein set forth and in Section
4.02. In lieu of delivering such a Notice of Borrowing (except with respect to a
Borrowing of Loans on the Closing Date), the Borrower may give the Agent
telephonic notice of any proposed Borrowing by the time required under this
Section 2.01(b), if the Borrower confirms such notice by delivery of the
required Notice of Borrowing to the Agent by facsimile transmission promptly,
but in no event later than 2:00 p.m. (New York time) on the same day, the
original of which facsimile copy shall be delivered to the Agent within three
(3) days after the date of such transmission. Any Notice of Borrowing (or
telephonic notice in lieu thereof) given pursuant to this Section 2.01(b) shall
be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a Notice of
Borrowing under Section 2.01(b) (or telephonic notice in lieu thereof), the
Agent shall notify each Lender by telecopy, or other similar form of
transmission, of the proposed Borrowing. Each Lender shall deposit an amount
equal to its Pro Rata Share of the amount requested by the Borrower to be made
as Loans with the Agent at its office in New York, New York, in immediately
available funds, (A) on the Closing Date with respect to the Borrowing of Loans
on such date specified in the initial Notice of Borrowing and (B) not later than
12:00 noon (New York time) on any other Funding Date for Loans. Subject to the
fulfillment of the conditions precedent set forth in Section 5.01 or Section
5.02, as applicable, the Agent shall promptly make the proceeds of such amounts
received by it available to the Borrower at the Agent's office in New York, New
York on such Funding Date (or on the date received if later than such Funding
Date) and shall promptly deposit such proceeds to the Borrower's disbursement
Account No. 4067-7374 at Citibank. The failure of any Lender to deposit the
amount described above with the Agent on the applicable Funding Date shall not
relieve any other Lender of its obligations hereunder to make its Loan on such
Funding Date. In the event the conditions precedent set forth in Section 5.01 or
5.02, as applicable, are not fulfilled as of the proposed Funding Date for any
Borrowing, the Agent shall promptly return, by wire transfer of immediately
available funds, the amount deposited by each Lender to such Lender.
(ii) Unless the Agent shall have been notified by any Lender
on the Business Day immediately preceding the applicable Funding Date in respect
of any Borrowing of Loans that such Lender does not intend to fund its Loan
requested to be made on such Funding Date, the Agent may assume that such Lender
has funded its Loan and is depositing the proceeds thereof with the Agent on the
Funding Date therefor, and the Agent in its sole discretion may, but shall not
be obligated to, disburse a corresponding amount to the Borrower on the
applicable Funding Date. If the Loan proceeds corresponding to that amount are
advanced to the Borrower by the Agent but are not in fact deposited with the
Agent by such Lender on or prior to the applicable Funding Date, such Lender
agrees to pay, and in addition the Borrower agrees to repay, to the Agent
forthwith on demand such corresponding amount, together with interest thereon,
for each day from the date such amount is disbursed to or for the benefit of the
Borrower until the date such amount is paid or repaid to the Agent, (A) in the
case of the Borrower, at the interest rate applicable to such Borrowing and (B)
in the case of such Lender, at the Federal Funds Rate for the first three (3)
Business Days, and thereafter at the interest rate applicable to such Borrowing.
If such Lender shall pay to the Agent the corresponding amount, the amount so
paid shall constitute such Lender's Loan, and if both such Lender and the
Borrower shall pay and repay such corresponding amount, the Agent shall promptly
pay to the Borrower such corresponding amount. This Section 2.01(c)(ii) does not
relieve any Lender of its obligation to make its Loan on any applicable Funding
Date or prejudice any rights the Borrower may have against such defaulting
Lender.
(d) Revolving Credit Termination Date. The Revolving Credit
Commitments shall terminate on the Revolving Credit Termination Date. All
outstanding Revolving Credit Obligations shall be paid in full on the Revolving
Credit Termination Date.
(e) Maximum Revolving Credit Facility. Notwithstanding
anything in this Agreement to the contrary, in no event shall the aggregate
principal Revolving Credit Obligations exceed the amount of the Revolving Credit
Commitments in effect from time to time, as reduced by the amount of each
permanent reduction of the Revolving Credit Commitments made pursuant to Section
3.01.
2.02. Authorized Officers and AgentsAuthorized Officers and
Agents. On the Closing Date the Borrower shall deliver, and from time to time
thereafter the Borrower may deliver, to the Agent an Officer's Certificate
setting forth the names of the officers, employees and agents authorized to
request Loans and Letters of Credit, and to request a conversion/continuation of
any Loan, in each instance containing a specimen signature of each such officer,
employee or agent. The officers, employees and agents so authorized shall also
be authorized to act for the Borrower in respect of all other matters relating
to the Loan Documents. The Agent and Lenders shall be entitled to rely
conclusively on such officer's, employee's, or agent's authority to request such
Loan or such conversion/continuation until the Agent and Lenders receive written
notice to the contrary. None of the Agent or the Lenders shall have any duty to
verify the authenticity of the signature appearing on any such Officer's
Certificate, written Notice of Borrowing or Notice of Conversion/Continuation,
or any other document, and, with respect to an oral request for such a Loan or
such conversion/continuation, the Agent shall have no duty to verify the
identity of any person representing himself or herself as one of the officers,
employees or agents authorized to make such request or otherwise to act on
behalf of the Borrower. Neither the Agent nor any Lender shall incur any
liability to the Borrower or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Agent or such Lender believes to
have been given by a duly authorized officer or other person authorized to
borrow on behalf of the Borrower.
2.03. Use of Proceeds of Loans. The proceeds of the Loans
shall be used for working capital and capital expenditures in the ordinary
course of the respective businesses of the Borrower and its Subsidiaries,
payment of tax liabilities, contributions to the ESOP, permitted repurchases of
Capital Stock of the Borrower, or for other lawful general corporate purposes of
the Borrower and its Subsidiaries not prohibited hereunder; and, with respect to
Acquisition Loans, the proceeds thereof shall be used for payment of part or all
of the purchase price of, and related fees and expenses with respect to,
Permitted Acquisitions and shall not exceed $25,000,000, in the aggregate at any
time outstanding.
2.04. Letters of Credit. Subject to the terms and conditions
set forth in this Agreement, each Issuing Bank hereby severally agrees to issue
for the account of the Borrower, or for the account of any of the Borrower's
Subsidiaries if the Borrower is jointly and severally liable for reimbursement
of amounts drawn under such Letter of Credit, one or more Letters of Credit,
subject to the following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any
obligation to issue, amend or extend, and shall not issue, amend or extend, any
Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect
to such Issuing Bank, after giving effect to the issuance, amendment or
extension of the Letter of Credit requested hereunder, shall exceed any
limit imposed by law or regulation upon such Issuing Bank;
(ii) if the Issuing Bank receives written notice from the
Agent at or before 11:00 a.m. (New York time) on the date of the
proposed issuance, amendment or extension of such Letter of Credit that
(A) immediately after giving effect to the issuance, amendment or
extension of such Letter of Credit, (I) the Letter of Credit
Obligations at such time would exceed $15,000,000, or (II) the
Revolving Credit Obligations at such time would exceed the Revolving
Credit Commitments at such time, or (B) one or more of the conditions
precedent contained in Sections 5.01 or 5.02, as applicable, would not
on such date be satisfied, unless such conditions are thereafter
satisfied and written notice of such satisfaction is given to the
Issuing Bank by the Agent (and an Issuing Bank shall not otherwise be
required to determine that, or take notice whether, the conditions
precedent set forth in Sections 5.01 or 5.02, as applicable, have been
satisfied);
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance (without regard to
any automatic renewal provisions thereof) or (B) the Business Day next
preceding the scheduled Revolving Credit Termination Date unless Cash
Collateral in an amount equal to (1) the undrawn face amount thereof in
the case of Standby Letters of Credit and (2) one hundred three percent
(103%) of the undrawn face amount thereof in the case of Commercial
Letters of Credit plus, in either case, fees payable over the term
thereof is deposited with the Agent or Issuing Bank on the date which
is one (1) year prior to the scheduled Revolving Credit Termination
Date; or
(iv) which is in a currency other than Dollars unless
otherwise agreed by the Issuing Bank and Agent and provision
satisfactory to the Issuing Bank and Lenders is made for the Borrower
to bear the risk of currency fluctuations.
(b) Conditions. In addition to being subject to the
satisfaction of the conditions precedent contained in Sections 5.01 and 5.02, as
applicable, the obligation of an Issuing Bank to issue, amend or extend any
Letter of Credit is subject to the satisfaction in full of the following
conditions:
(i) if the Issuing Bank so requests, the Borrower or, in the
case of Letters of Credit issued for the account of any of the
Borrower's Subsidiaries, the Borrower and such Subsidiary shall have
executed and delivered to such Issuing Bank and the Agent a Letter of
Credit Reimbursement Agreement and such other documents and materials
as may be required pursuant to the terms thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) Issuance of Letters of Credit. (i) The Borrower shall give
an Issuing Bank and the Agent written notice that it has selected such Issuing
Bank to issue a Letter of Credit not later than 11:00 a.m. (New York time) on
the third (3rd) Business Day preceding the requested date for issuance thereof
under this Agreement, or such shorter notice as may be acceptable to such
Issuing Bank and the Agent. Such notice shall be irrevocable unless and until
such request is denied by the applicable Issuing Bank or the Issuing Bank
receives written notice from the Borrower to hold, cancel or amend the proposed
Letter of Credit prior to the issuance thereof and shall specify (A) that the
requested Letter of Credit is either a Commercial Letter of Credit or a Standby
Letter of Credit, (B) that such Letter of Credit is solely for the account of
the Borrower or the name of the Subsidiary of the Borrower which is jointly and
severally applying for such Letter of Credit, (C) the stated amount of the
Letter of Credit requested, (D) the effective date (which shall be a Business
Day) of issuance of such Letter of Credit, (E) the date on which such Letter of
Credit is to expire (which, except to the extent otherwise provided in Section
2.04(a)(iii), shall be a Business Day and no later than the Business Day
immediately preceding the scheduled Revolving Credit Termination Date), (F) the
Person for whose benefit such Letter of Credit is to be issued, (G) other
relevant terms of such Letter of Credit, (H) the Revolving Credit Commitments at
such time, and (I) the amount of the then outstanding Letter of Credit
Obligations. Such Issuing Bank shall notify the Agent immediately upon receipt
of a written notice from the Borrower requesting that a Letter of Credit be
issued, or that an existing Letter of Credit be extended or amended and, upon
the Agent's request therefor, send a copy of such notice to the Agent.
(ii) The Issuing Bank shall give (A) the Agent written notice,
or telephonic notice confirmed promptly thereafter in writing, of the issuance,
amendment or extension of a Letter of Credit and (B) promptly after issuance
thereof, provide the Agent and the Borrower with a copy of each Letter of Credit
issued and each amendment thereto.
(d) Reimbursement Obligations; Duties of Issuing Banks.
(i) Notwithstanding any provisions to the contrary in any
Letter of Credit Reimbursement Agreement:
(A) the Borrower shall reimburse, or cause its Subsidiary for
whose account a Letter of Credit is issued to reimburse, the Issuing
Bank for amounts drawn under such Letter of Credit, in Dollars, no
later than the date (the "Reimbursement Date") which is one (1)
Business Day after the Borrower receives written notice from the
Issuing Bank that payment has been made under such Letter of Credit by
the Issuing Bank; and
(B) all Reimbursement Obligations with respect to any Letter
of Credit shall bear interest at the rate applicable to Base Rate Loans
in accordance with Section 4.01(a) from the date of the relevant
drawing under such Letter of Credit until the Reimbursement Date and
thereafter at the rate applicable to Base Rate Loans in accordance with
Section 4.01(d).
(ii) The Issuing Bank shall give the Agent written notice, or
telephonic notice confirmed promptly thereafter in writing, of all drawings
under a Letter of Credit and the payment (or the failure to pay when due) by the
Borrower or its applicable Subsidiary on account of a Reimbursement Obligation
(which notice the Agent shall promptly transmit by telegram, telex, telecopy or
similar transmission to each Lender).
(iii) No action taken or omitted in good faith by an Issuing Bank
under or in connection with any Letter of Credit shall put such Issuing Bank
under any resulting liability to any Lender, the Borrower or any of its
Subsidiaries except for actions taken or omitted resulting from gross negligence
or wilfull misconduct of the Issuing Bank as determined by a court of competent
jurisdiction, or, so long as it is not issued in violation of Section 2.04(a),
relieve any Lender of its obligations hereunder to such Issuing Bank. Solely as
between the Issuing Banks and the Lenders, in determining whether to pay under
any Letter of Credit, the respective Issuing Bank shall have no obligation to
the Lenders other than to confirm that any documents required to be delivered
under a respective Letter of Credit appear to have been delivered and that they
appear on their face to comply with the requirements of such Letter of Credit.
(e) Participations. (i) Immediately upon issuance by an
Issuing Bank of any Letter of Credit in accordance with the procedures set forth
in this Section 2.04 and immediately upon conversion of a letter of credit of an
Issuing Bank to a Letter of Credit pursuant to Section 2.04, each Lender shall
be deemed to have irrevocably and unconditionally purchased and received from
that Issuing Bank, without recourse or warranty, an undivided interest and
participation in such Letter of Credit to the extent of such Lender's Pro Rata
Share, including, without limitation, all obligations of the Borrower with
respect thereto (other than amounts owing to the Issuing Bank under Section
2.04(g)) and any security therefor and guaranty pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrower or the Subsidiary of the Borrower for whose account the
Letter of Credit was issued does not repay such amount to the Issuing Bank on
the Reimbursement Date, the Issuing Bank shall promptly notify the Agent, which
shall promptly notify each Lender, and each Lender shall promptly and
unconditionally pay to the Agent for the account of such Issuing Bank, in
immediately available funds, the amount of such Lender's Pro Rata Share of such
payment (net of that portion of such payment, if any, made by such Lender in its
capacity as an Issuing Bank), and the Agent shall promptly pay to the Issuing
Bank such amounts received by it, and any other amounts received by the Agent
for the Issuing Bank's account, pursuant to this Section 2.04(e). All amounts so
paid to the Issuing Bank shall be deemed to constitute Loans. If a Lender does
not make its Pro Rata Share of the amount of such payment available to the
Agent, such Lender agrees to pay to the Agent for the account of the Issuing
Bank, forthwith on demand, such amount together with interest thereon, for the
first three (3) Business Days after the date such payment was first due at the
Federal Funds Rate, and thereafter at the interest rate then applicable to Base
Rate Loans in accordance with Section 4.01(a). The failure of any Lender to make
available to the Agent for the account of an Issuing Bank its Pro Rata Share of
any such payment shall neither relieve any other Lender of its obligation
hereunder to make available to the Agent for the account of such Issuing Bank
such other Lender's Pro Rata Share of any payment on the date such payment is to
be made nor increase the obligation of any other Lender to make such payment to
the Agent.
(iii) Whenever an Issuing Bank receives a payment on account
of a Reimbursement Obligation, including any interest thereon, as to which the
Agent has previously received payments from any Lender for the account of such
Issuing Bank pursuant to this Section 2.04(e), such Issuing Bank shall promptly
pay to the Agent and the Agent shall promptly pay to such Lender an amount equal
to such Lender's Pro Rata Share thereof. Each such payment shall be made by such
Issuing Bank or the Agent, as the case may be, on the Business Day on which such
Person receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 a.m. (New York time) on such Business Day,
and otherwise on the next succeeding Business Day.
(iv) Upon the request of any Lender, an Issuing Bank shall
furnish such Lender copies of any Letter of Credit or Letter of Credit
Reimbursement Agreement to which such Issuing Bank is party and such other
documentation as reasonably may be requested by such Lender.
(v) The obligations of a Lender to make payments to the Agent
for the account of any Issuing Bank with respect to a Letter of Credit shall be
irrevocable, shall not be subject to any qualification or exception whatsoever
except willful misconduct or gross negligence of such Issuing Bank, and shall be
honored in accordance with this Article III (irrespective of the satisfaction of
the conditions described in Sections 5.01 and 5.02, as applicable) under all
circumstances, including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Letter of Credit or any transferee of a beneficiary named in a Letter
of Credit (or any Person for whom any such transferee may be acting),
the Agent, the Issuing Bank, any Lender, or any other Person, whether
in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the account party and
beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented
under the Letter of Credit having been determined to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) any failure by that Issuing Bank to make any reports
required pursuant to Section 2.04(h) or the inaccuracy of any such
report; or
(F) the occurrence of any Event of Default or Potential Event
of Default.
(f) Payment of Reimbursement Obligations. (i) The Borrower
unconditionally agrees to pay, or cause its Subsidiary for whose account a
Letter of Credit is issued to pay, to each Issuing Bank, in Dollars, the amount
of all Reimbursement Obligations, interest and other amounts payable to such
Issuing Bank under or in connection with the Letters of Credit when such amounts
are due and payable, irrespective of any claim, setoff, defense or other right
which the Borrower may have at any time against any Issuing Bank or any other
Person.
(ii) In the event any payment by the Borrower or such Subsidiary
received by an Issuing Bank with respect to a Letter of Credit and distributed
by the Agent to the Lenders on account of their participations is thereafter set
aside, avoided or recovered from such Issuing Bank in connection with any
receivership, liquidation or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by such Issuing Bank, contribute such
Lender's Pro Rata Share of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by such Issuing Bank upon the
amount required to be repaid by it.
(g) Issuing Bank Charges. The Borrower shall pay, or cause its
Subsidiary for whose account a Letter of Credit is issued to pay, to each
Issuing Bank, solely for its own account, the standard charges assessed by such
Issuing Bank in connection with the issuance, administration, amendment and
payment or cancellation of Letters of Credit and such compensation in respect of
such Letters of Credit for the Borrower's or such Subsidiary's account, as
applicable, as may be agreed upon prior to issuance of such Letters of Credit by
the Borrower and such Issuing Bank. In no event shall an Issuing Bank be
relieved of its obligation to issue Letters of Credit in accordance with the
terms of this Agreement based upon the Borrower's not agreeing to any such other
compensation in addition to the aforesaid standard charges.
(h) Issuing Bank Reporting Requirements. Each Issuing Bank
shall, no later than the tenth (10th) Business Day following the last day of
each calendar month, provide to the Agent, the Borrower, and each Lender
separate schedules for Commercial Letters of Credit and Standby Letters of
Credit issued as Letters of Credit, in form and substance reasonably
satisfactory to the Agent, setting forth the aggregate Letter of Credit
Obligations outstanding to it at the end of each month and, to the extent not
otherwise provided in accordance with the provisions of Section 2.04(c)(ii), any
information requested by the Agent or the Borrower relating to the date of
issue, account party, amount, expiration date and reference number of each
Letter of Credit issued by it.
(i) Indemnification; Exoneration. (i) In addition to all other
amounts payable to an Issuing Bank, the Borrower hereby agrees to defend,
indemnify, and save the Agent, each Issuing Bank and each Lender harmless from
and against any and all claims, demands, liabilities, penalties, damages, losses
(other than loss of profits), costs, charges and expenses (including reasonable
attorneys' fees but excluding taxes) which the Agent, such Issuing Bank or such
Lender may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the Issuing Bank, as determined by a court
of competent jurisdiction, or (B) the failure of the Issuing Bank issuing a
Letter of Credit to honor a drawing under such 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. In no event shall the
Issuing Bank be liable to the Borrower or any Lender for consequential or
special damages.
(ii) As between the Borrower and any of its Subsidiaries for whose
account a Letter of Credit is issued on the one hand and the Agent, the Lenders
and the Issuing Banks on the other hand, the Borrower assumes all risks of the
acts and omissions of, or misuse of Letters of Credit by, the respective
beneficiaries of the Letters of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the Letter of Credit Reimbursement
Agreements, the Issuing Banks and the Lenders shall not be responsible for: (A)
the form, validity, legality, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for
and issuance of the Letters of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B)
the validity, legality or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (C) failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (D) 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; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (G) the misapplication by the beneficiary of a Letter of
Credit of the proceeds of any drawing under such Letter of Credit; and (H) any
consequences arising from causes beyond the control of the Agent, the Issuing
Banks or the Lenders.
(j) Obligations Several. The obligations of each Issuing Bank
and each Lender under this Section 2.04 are several and not joint, and no
Issuing Bank or Lender shall be responsible for the obligation to issue Letters
of Credit or participation obligation hereunder, respectively, of any other
Issuing Bank or Lender.
ARTICLE III PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in CommitmentsPrepayments;
Reductions in Commitments.
(a) Voluntary Prepayments/Reductions. (i) Notice. The
Borrower may repay Loans, without prior written notice to the Agent or any
Lender, at any time and from time to time; provided, however, Eurodollar Rate
Loans may only be prepaid (A) in whole or in part on the expiration date of the
then applicable Eurodollar Interest Period, upon at least three (3) Business
Days' prior written notice to the Agent (which the Agent shall promptly transmit
to each Lender), or (B) otherwise upon payment of the amounts described in
Section 13.05. Any notice of prepayment given to the Agent under this Section
3.01(a)(i) shall specify the Loans to be prepaid, the date (which shall be a
Business Day) of prepayment, and the aggregate principal amount of the
prepayment. When notice of prepayment is delivered as provided herein, the
principal amount of the Loans specified in the notice shall become due and
payable on the prepayment date specified in such notice.
(ii) Voluntary Revolving Credit Commitment Reductions. The
Borrower, upon at least three (3) Business Days' prior written notice to the
Agent (which the Agent shall promptly transmit to each Lender), shall have the
right, at any time and from time to time, to terminate in whole or permanently
reduce in part the Revolving Credit Commitments; provided that the Borrower
shall have made whatever payment may be required to reduce the Revolving Credit
Obligations to an amount less than or equal to the Revolving Credit Commitments
as reduced or terminated. Any partial reduction of the Revolving Credit
Commitments shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount, and shall reduce the Revolving
Credit Commitment of each Lender proportionately in accordance with its Pro Rata
Share. Any notice of termination or reduction given to the Agent under this
Section 3.01(a)(ii) shall specify the date (which shall be a Business Day) of
such termination or reduction and, with respect to a partial reduction, the
aggregate principal amount thereof. When notice of termination or reduction is
delivered as provided herein, the principal amount of the Loans specified in the
notice shall become due and payable on the date specified in such notice.
(b) Mandatory Prepayments. (i) Immediately upon the Borrower's
or any of its Subsidiaries' receipt of any Net Cash Proceeds of Asset
Securitization if the provisions of Section 8.12 have not been fully complied
with, the Borrower shall make or cause to be made a mandatory prepayment of the
Revolving Credit Obligations in an amount equal to one hundred percent (100%) of
such Net Cash Proceeds of Asset Securitization (not to exceed the aggregate
Revolving Credit Obligations).
(ii) No later than the Business Day next succeeding any day
when the Revolving Credit Obligations exceed the Revolving Credit Commitments
then in effect, the Borrower shall make or cause to be made a mandatory
prepayment of the Revolving Credit Obligations in an amount equal to the amount
of such excess as required pursuant to Section 2.01(a).
(iii) Promptly upon Borrower's or any Subsidiary of Borrower's
receipt of Net Cash Proceeds of Sale in excess of $250,000 from the sale,
transfer or other disposition of Property in a single transaction or series of
related transactions in any Fiscal Year, the Borrower shall make or cause to be
made a mandatory prepayment of the Revolving Credit Obligations in an amount
equal to such Net Cash Proceeds of Sale.
(iv) Promptly upon Borrower's or any Subsidiary of the
Borrower's receipt of any Net Cash Proceeds of Issuance of Equity Securities,
the Borrower shall make or cause to be made a mandatory prepayment of the
Revolving Credit Obligations in an amount equal to such Net Cash Proceeds of
Issuance of Equity Securities. Notwithstanding the foregoing, in the event
Borrower commits to the Agent, in writing, upon the issuance of any Securities
giving rise to Net Cash Proceeds of Issuance of Equity Securities, that Net Cash
Proceeds of Issuance of Equity Securities so received will be used in Borrower's
or its Subsidiaries' operations or for Investments by the Borrower or a Material
Subsidiary (other than Dyn Funding) to acquire the Capital Stock, assets or
operations of any Person complying with the criteria set forth in clause (iii)
of the definition of "Permitted Acquisition", the required mandatory prepayment
under this clause (iv) shall be equal to fifty percent (50%) of the Net Cash
Proceeds of Issuance of Equity Securities received.
(c) No Prepayment Fee. The prepayments and payments described
in Section 3.01(a) may be made without premium or penalty (except as provided in
Section 13.05). Designated Prepayments shall be made without premium or penalty
(except as provided in Section 13.05); provided, however, that, in the event a
Designated Prepayment which is to be applied to a Eurodollar Rate Loan becomes
due and payable at a time when no Event of Default exists but on a date which is
other than the last day of the Eurodollar Interest Period applicable thereto,
the Lenders (i) hereby authorize the Agent to retain the amount of such
Designated Prepayment delivered to it for application on such Eurodollar Rate
Loan as Cash Collateral therefor until the last day of the Eurodollar Interest
Period applicable thereto and to apply such amount to such Eurodollar Rate Loan
only on such last day of such Eurodollar Interest Period and (ii) agree that
Borrower's delivery of the amount of such Designated Prepayment to the Agent as
aforesaid shall be deemed to have complied with the requirements of Section
3.01(b). All Cash Collateral held by the Agent pursuant to this Section 3.01(c)
shall be held by the Agent in a Cash Collateral Account and all interest earned
on such Cash Collateral shall be the property of the Borrower and shall be paid
to the Borrower quarterly.
(d) No Waiver or Consent. Nothing in Section 3.01(b) shall be
construed to constitute the Lenders' consent to any transaction referenced in
clauses (i), (iii) or (iv) above which is not expressly permitted by Article IX.
(e) Notice. The Borrower shall give the Agent prior written
notice or telephonic notice promptly confirmed in writing (each of which the
Agent shall promptly transmit to each Lender) when a Designated Prepayment will
be made (which date of prepayment shall be no later than the date on which such
Designated Prepayment becomes due and payable pursuant to Section 3.01(b)).
(f) Application of Designated Prepayments. Designated
Prepayments shall be allocated and applied as follows:
(i) to the principal amount of, and accrued and unpaid
interest on, the Loans outstanding on the date of such Designated
Prepayment until paid in full and then
(ii) to the Letter of Credit Obligations until paid in full
(or, to the extent any Letter of Credit Obligations are contingent,
retained by the Agent as Cash Collateral in respect of such contingent
Letter of Credit Obigations unless (A) such Designated Prepayment
becomes due and payable during the period commencing on the Closing
Date and ending on March 13, 1999 and at such time the Revolving Credit
Availability is at least $10,000,000 or (B) such Designated Prepayment
becomes due and payable after March 13, 1999 and at such time the
Revolving Credit Availability is at least $5,000,000, in which case no
such Cash Collateral will be required and provided that the amount of
Cash Collateral required to be retained shall in no event exceed the
amount of such contingent Letter of Credit Obligations). All such Cash
Collateral held by the Agent shall be held in a Cash Collateral Account
and all interest on such Cash Collateral shall be the property of the
Borrower and shall be paid to the Borrower quarterly.
In the event the amount of a Designated Prepayment exceeds the amount required
to comply with clauses (i) and (ii) above, the amount by which the Designated
Prepayment exceeds the required amount, shall be retained by the Borrower.
(g) Commitment Reduction. On the date each Designated
Prepayment (other than a Designated Prepayment described in clause (b)(ii)
above) is due and payable, the Revolving Credit Commitments shall be
automatically and permanently reduced by the aggregate amount of such Designated
Prepayment applied to principal of the Loans and Letter of Credit Obligations
and held as Cash Collateral in respect of contingent Letter of Credit
Obligations.
3.02. PaymentsPayments. (a) Manner and Time of Payment. All
payments of principal of and interest on the Loans and other Obligations
(including, without limitation, fees and expenses) which are payable to the
Agent or any Lender shall be made without condition or reservation of right,
and, with respect to payments made other than from application of deposits in
the Citibank Collection Account, in immediately available funds, delivered to
the Agent not later than 1:00 p.m. (New York time) on the date and at the place
due, to such account of the Agent as it may designate, for the account of the
Agent or the Lenders, as the case may be; and funds received by the Agent,
including, without limitation, funds in respect of any Loans to be made on that
date, not later than 1:00 p.m. (New York time) on any given Business Day shall
be credited against payment to be made that day and funds received by the Agent
after that time shall be deemed to have been paid on the next succeeding
Business Day. Payments actually received by the Agent for the account of the
Lenders, or any of them, shall be paid to them by the Agent promptly after
receipt thereof.
(b) Apportionment of Payments. (i) Subject to the provisions
of Section 3.01 and Section 3.02(b)(v), all payments of principal and interest
in respect of outstanding Loans, all payments of fees and all other payments in
respect of any other Obligations, shall be allocated among such of the Lenders
as are entitled thereto, in proportion to their respective Pro Rata Shares or
otherwise as provided herein. Except as provided in Section 3.02(b)(ii) with
respect to payments and proceeds of Collateral received after the occurrence of
an Event of Default, all such payments and any other amounts received by the
Agent from or for the benefit of the Borrower shall be applied:
(A) first, to pay principal of and interest on any portion of the Loans
which the Agent may have advanced on behalf of any Lender other than Citicorp
for which the Agent has not then been reimbursed by such Lender or the Borrower,
(B) second, to pay principal of and interest on any Protective Advance
for which the Agent has not then been paid by the Borrower or reimbursed by the
Lenders,
(C) third, to pay the principal of the Loans then due and payable in
the order described hereinbelow and interest on the Loans then due and payable,
ratably, based on the then outstanding balances of the Loans,
(D) fourth, to pay all other Obligations then due and payable,
ratably, and
(E) fifth, as the Borrower so designates.
All such principal and interest payments in respect of Loans shall be applied
first, to repay outstanding Base Rate Loans and then to repay outstanding
Eurodollar Rate Loans with those Eurodollar Rate Loans which have earlier
expiring Eurodollar Interest Periods being repaid prior to those which have
later expiring Eurodollar Interest Periods.
(ii) After the occurrence of an Event of Default and while the same
is continuing, the Agent shall apply all payments in respect of any Obligations
and all proceeds of Collateral in the following order:
(A) first, to pay principal of and interest on any portion of the Loans
which the Agent may have advanced on behalf of any Lender other than Citicorp
for which the Agent has not then been reimbursed by such Lender or the Borrower;
(B) second, to pay principal of and interest on any Protective Advance
for which the Agent has not then been paid by the Borrower or reimbursed by the
Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(D) fourth, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(E) fifth, to pay interest due in respect of the Loans, ratably,
in accordance with the Lenders' respective Pro Rata Shares;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on all Loans;
(G) seventh, to the ratable payment of all other Obligations; and
(H) eighth, as the Borrower so designates.
Notwithstanding the foregoing, (i) in the event the Agent is holding Cash
Collateral for Reimbursement Obligations, such Cash Collateral shall be applied
to such Reimbursement Obligations immediately upon the occurrence of an Event of
Default and (ii) in the event the Agent is holding Cash Collateral for Letter of
Credit Obligations other than Reimbursement Obligations, such Cash Collateral
shall be retained by the Agent until all Letters of Credit have expired (or
otherwise been cancelled and returned to the Issuing Bank) undrawn or been drawn
upon and the Reimbursement Obligations with respect thereto have been paid in
full in cash. All Cash Collateral held by the Agent shall be held in a Cash
Collateral Account and all interest thereon shall be the property of the
Borrower and shall be paid to the Borrower quarterly. The order of priority set
forth in this Section 3.02(b) and the related provisions of this Agreement are
set forth solely to determine the rights and priorities of the Agent, the
Lenders, and other Holders as among themselves.
(iii) Upon the occurrence and during the continuance of an
Event of Default under Section 11.01(a), the Agent, in its sole discretion
subject only to the terms of this Section 3.02(b)(iii), may pay from the
proceeds of Loans made to the Borrower hereunder, following a deemed request by
the Borrower as provided in this Section 3.02(b)(iii), all amounts when due and
payable by the Borrower hereunder, including, without limitation, amounts due
and payable with respect to payments of principal, interest, and fees and all
reimbursements for expenses pursuant to Section 14.02. The Borrower hereby
irrevocably authorizes the Lenders to make Loans, which Loans shall be Base Rate
Loans, in each case, upon notice from the Agent as described in the following
sentence for the purpose of paying principal, interest, and fees due from the
Borrower, reimbursing expenses pursuant to Section 14.02 and paying any and all
other amounts due and payable by the Borrower hereunder or under the Notes, and
the Borrower agrees that all such Loans so made shall be deemed to have been
requested by it pursuant to Section 2.01 as of the date of the aforementioned
notice. The Agent shall request Loans on behalf of the Borrower as described in
the preceding sentence by notifying the Lenders by telecopy, telegram or other
similar form of transmission (which notice the Agent shall thereafter promptly
transmit to the Borrower), of the amount and Funding Date of the proposed
Borrowing and that such Borrowing is being requested on the Borrower's behalf
pursuant to this Section 3.02(b)(iii). On the proposed Funding Date for such
Loan, the Lenders shall make the requested Loans in accordance with the
procedures and subject to the conditions specified in Section 2.01.
(iv) Subject to Section 3.02(b)(v), the Agent shall promptly
distribute to each Lender at its primary address set forth on the appropriate
signature page hereof or the signature page to the Assignment and Acceptance by
which it became a Lender, or at such other address as a Lender or other Holder
may request in writing, such funds as such Person may be entitled to receive;
provided that the Agent shall under no circumstances be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Holder and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata
Share of any Loan requested by the Borrower which such Lender is obligated to
fund under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until the earlier of such
Lender's cure of such failure and the termination of the Revolving Credit
Commitments, the proceeds of all amounts thereafter repaid to the Agent by the
Borrower and otherwise required to be applied to such Lender's share of all
other Obligations pursuant to the terms of this Agreement shall be advanced to
the Borrower by the Agent on behalf of such Lender to cure, in full or in part,
such failure by such Lender, but shall nevertheless be deemed to have been paid
to such Lender in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 3.02(b)(v) shall
apply only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to
Section 4.01(c);
(B) a Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Loan at such time as an amount equal to such
Lender's original Pro Rata Share of the requested principal portion of
such Loan is fully funded to the Borrower, whether made by such Lender
itself or by operation of the terms of this Section 3.02(b)(v), and
whether or not the Non Pro Rata Loan with respect thereto has been
repaid, converted or continued;
(C) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any Loan
("Cure Loans") shall bear interest at the rate applicable to the other
Loans comprising such Borrowing and shall be treated as Loans
comprising such Borrowing for all other purposes in this Agreement; and
(D) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of the
Borrower as to its desired application, all repayments of principal
which, in accordance with the other terms of this Section 3.02, would
be applied to the outstanding Loans which are Base Rate Loans shall be
applied first, ratably to all such Base Rate Loans constituting Non Pro
Rata Loans, second, ratably to such Base Rate Loans other than those
constituting Non Pro Rata Loans or Cure Loans and, third, ratably to
such Base Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be
made by the Borrower hereunder or under the Notes is stated to be due on a day
which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (except as set forth in Section 4.02(b)(iii) with
respect to payments due on the next preceding Business Day), and any such
extension of time shall be included in the computation of the payment of
interest and fees hereunder.
3.03. Promise to Repay; Evidence of IndebtednessPromise to
Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower hereby agrees to pay when
due the principal amount of each Loan which is made to it, and further agrees to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes. The Borrower shall execute and deliver to each Lender
on the Closing Date a Note evidencing the Loans and thereafter shall execute and
deliver such other Notes as are necessary to evidence Loans owing to the Lenders
after giving effect to any assignment thereof pursuant to Section 14.01.
(b) Loan Account. Each Lender shall maintain in accordance
with its usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under its
respective Note.
(c) Control Account. The Register maintained by the Agent
pursuant to Section 14.01(c) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, the type of Loan
comprising such Borrowing and any Eurodollar Interest Period applicable thereto,
(ii) the effective date and amount of each Assignment and Acceptance delivered
to and accepted by it and the parties thereto, (iii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder or under the Notes, and (iv) the amount of any sum
received by the Agent from the Borrower hereunder and each Lender's share
thereof.
(d) Entries Binding. The entries made in the Register and each
Loan Account shall be conclusive and binding for all purposes, absent manifest
error.
3.04. Collections and Collection Account Arrangements. (a)
Establishment. (i) The Borrower shall maintain deposit account 4067-5918 at
Citibank, N.A. (the "Citibank Collection Account"), into which all proceeds of
Collateral, subject to the provisions of Sections 9.14, 9.15, and 9.16, shall be
deposited by transfer, as and when set forth hereinbelow, from the Cash
Management Account or other depository accounts maintained by the Borrower and
the Guarantors. Subject to the provisions of Sections 9.14, 9.15 and 9.16,
Borrower shall cause all proceeds of Collateral to be deposited in the Cash
Management Account or the aforesaid depository accounts for subsequent transfer
to the Citibank Collection Account and such proceeds shall be deemed received by
the Borrower or applicable Guarantor and to have been received by the Borrower
or such Guarantor as the Agent's trustee. All amounts received by the Agent,
whether through payment, deposit in the Citibank Collection Account as described
above, or otherwise, will be the sole property of the Agent for the benefit of
the Holders and will be (i) deemed received by the Agent for application to the
Obligations then due and payable pursuant to Section 3.02 and (ii) thereafter
held by the Agent, for the benefit of the Holders, as Cash Collateral for the
Obligations, subject to the rights of the Borrower set forth in Section 3.04(b)
and the rights of the Agent set forth in Section 3.05.
(ii) Borrower, in its capacity as "Servicer" under the
Servicing Agreement, shall deliver the written request for reimbursement
described in Section 3.04(a) of the Servicing Agreement at any time the amount
available for withdrawal under Section 3.04 of the Servicing Agreement is at
least $300,000; provided, however, that in no event shall more than ten (10)
consecutive Business Days elapse between the Servicer's written requests for
reimbursement (notwithstanding the amount then available for withdrawal); and
further provided that, after the occurrence and during the continuance of an
Event of Default, the Borrower shall deliver such written request on each
Business Day, notwithstanding the amount then available for withdrawal. Borrower
shall cause all amounts withdrawn as aforesaid to be deposited in the Citibank
Collection Account.
(iii) Borrower shall make requests no less frequently than
every consecutive ten (10) Business Days for all reimbursements available for
withdrawal by it from time to time under the 1997 Receivables Purchase
Documents; provided that such request shall be made on each Business Day on
which a reimbursement of at least $300,000 is available to the Borrower and
further provided that, after the occurrence and during the continuance of an
Event of Default, the Borrower shall make such requests on each Business Day,
notwithstanding the amount then available for withdrawal. Borrower shll cause
all amounts withdrawn as aforesaid to be deposited in the Citibank Collection
Account.
(b) Pre-Default Withdrawals from Citibank Collection Account.
The Borrower shall have the right to direct disbursements from the Citibank
Collection Account, so long as no Event of Default shall have occurred and be
continuing or unwaived. Amounts on deposit in the Citibank Collection Account
shall be invested in such Cash Equivalents as the Borrower may select as more
particularly described in Section 3.04(d). The Borrower hereby irrevocably
authorizes and directs the Agent to withdraw such amounts from the Citibank
Collection Account as may from time to time be required to pay (i) Obligations
as they become due and apply the same as set forth in Section 3.02(b)(i) and
(ii) principal of the Loans; provided that, (A) an amount in excess of
$10,000,000 is on deposit in the Citibank Collection Account in immediately
available funds as of 2:00 p.m. (New York time) on the Business Day on which
such payment is due or such Loans are outstanding, (B) the amount that the Agent
is authorized to so withdraw and apply shall not exceed the lesser of (1) the
amount of such excess over $10,000,000 or (2) an amount equal to the sum of the
Obligations then due and payable plus the principal balance of the Loans which
is then outstanding and (C) applications on the principal balances of the Loans
shall be made first to Loans which are not Acquisition Loans until paid in full
and then to Loans which are Acquisition Loans. The aforesaid authorization of
and direction to the Agent to withdraw amounts from the Citibank Collection
Account shall not be deemed to provide authorization and direction to pay
Eurodollar Rate Loans prior to the Eurodollar Interest Payment Date applicable
thereto.
(c) Reasonable Care. The Agent shall exercise reasonable care
in the custody and preservation of any funds held in the Citibank Collection
Account and shall be deemed to have exercised such care if such funds are
accorded treatment substantially equivalent to that which the Agent accords its
own like property, it being understood that the Agent shall not have any
responsibility for taking any steps necessary to preserve rights against any
parties with respect to any such funds but may do so at its option. In the event
the Agent takes any such steps, it shall provide the Borrower with prompt
written notice thereof. All reasonable expenses incurred in connection therewith
shall be for the sole account of the Borrower and shall constitute Obligations
hereunder.
(d) Investments. If requested by the Borrower, the Agent
shall, so long as no Event of Default shall have occurred and be continuing,
from time to time invest funds on deposit in the Citibank Collection Account and
accrued interest thereon, reinvest proceeds of any such investments which may
mature or be sold, and invest interest or other income received from any such
Investments, in each case in such Cash Equivalents as the Borrower may select.
Such funds, interest, proceeds or income which are not so invested or reinvested
in Cash Equivalents shall, except as otherwise provided in Section 3.05, be
deposited and held by the Agent in the Citibank Collection Account. Neither the
Agent nor any Lender shall be liable to the Borrower for, or with respect to,
any decline in value of amounts on deposit in the Citibank Collection Account
which shall have been invested pursuant to this Section 3.04(d) at the direction
of the Borrower. Cash Equivalents from time to time purchased and held pursuant
to this Section 3.04(d) shall constitute Cash Collateral and shall, for purposes
of this Agreement, be deemed to be part of the funds held in the Citibank
Collection Account.
3.05. Post-Default Withdrawals from the Citibank Collection
Account. Notwithstanding any other provision of this Agreement, from and after
the occurrence of an Event of Default and for so long as the same is continuing
unwaived, neither the Borrower nor any Person or entity claiming on behalf of or
through the Borrower shall have any right to withdraw any of the funds held in
the Citibank Collection Accounts other than funds in excess of the Obligations
then due and payable. The Agent may, at any time after the occurrence and during
the continuance of an Event of Default, (a) apply amounts on deposit in the
Citibank Collection Account to payment of the outstanding Loans and other
Obligations in accordance with Section 3.02(b)(ii) and (b) sell or cause to be
sold any Cash Equivalents being held by the Agent in the Citibank Collection
Account as Cash Collateral at any broker's board or at public or private sale,
in one or more sales or lots, at such price as the Agent may deem best, without
assumption of any credit risk, and the purchaser of any or all such Cash
Equivalents so sold shall thereafter own the same, absolutely free from any
claim, encumbrance or right of any kind whatsoever. The Agent or any Holder may,
in its own name or in the name of a designee or nominee, buy such Cash
Equivalents at any public sale and, if permitted by applicable law, buy such
Cash Equivalents at any private sale. The Agent shall apply the proceeds of any
such sale, net of any reasonable expenses incurred in connection therewith, and
any other funds deposited in the Citibank Collection Account to the payment of
the Obligations in accordance with Section 3.02(b)(ii). The Borrower agrees that
any sale of Cash Equivalents conducted in conformity with reasonable commercial
practices of banks, commercial finance companies, insurance companies or other
financial institutions disposing of property similar to such Cash Equivalents
shall be deemed to be commercially reasonable and any requirements of reasonable
notice shall be met if such notice is given by the Agent within a commercially
reasonable time prior to such disposition, the time of delivery of which notice
the parties hereto agree shall in no event be required to be greater than ten
(10) Business Days before the date of the intended sale or disposition. Any
other requirement of notice, demand or advertisement for sale is waived to the
extent permitted by law. The Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
ARTICLE IV
INTEREST AND FEES
4.01. Interest on the Loans and other ObligationsInterest on
the Loans and other Obligations. (a) Rate of Interest. (i) All Loans shall bear
interest on the unpaid principal amount thereof from the date such Loans are
made until paid in full, except as otherwise provided in Section 4.01(d), as
follows:
(A) If a Base Rate Loan, at a rate per annum equal to the sum
of (1) the Base Rate, as in effect from time to time as interest
accrues plus (2) the applicable Base Rate Margin; and
(B) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (1) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period , plus (2) the applicable Eurodollar Rate
Margin.
(ii) The applicable basis for determining the rate of interest
on the Loans shall be selected by the Borrower at the time a Notice of Borrowing
or a Notice of Conversion/Continuation is delivered by the Borrower to the
Agent; provided, however, the Borrower may not select the Eurodollar Rate as the
applicable basis for determining the rate of interest on such a Loan if (A) such
Loan is to be made on the Closing Date or (B) at the time of such selection an
Event of Default or a Potential Event of Default would occur or has occurred and
is continuing. If on any day any Loan is outstanding with respect to which
notice has not been timely delivered to the Agent in accordance with the terms
of this Agreement specifying the basis for determining the rate of interest on
that day, then for that day interest on that Loan shall be determined by
reference to the Base Rate.
(b) Interest Payments. (i) Interest accrued on each Base Rate
Loan shall be payable in arrears (A) on the first day of each calendar quarter
for the immediately preceding calendar quarter, commencing on the first such day
following the making of such Base Rate Loan, (B) upon the payment or prepayment
thereof in full or in part, if a concurrent reduction in the Commitments is
made, (C) upon conversion thereof to a Eurodollar Rate Loan, and (D) if not
theretofore paid in full, on the Revolving Credit Termination Date.
(ii) Interest accrued on each Eurodollar Rate Loan shall be
payable in arrears (A) on each Eurodollar Interest Payment Date applicable to
such Loan, (B) upon the payment or prepayment thereof in full or in part, and
(C) if not theretofore paid in full, on the Revolving Credit Termination Date.
(c) Conversion or Continuation. (i) The Borrower shall have
the option (A) to convert at any time all or any part of outstanding Base Rate
Loans to Eurodollar Rate Loans; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) to continue all or
any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date as Eurodollar Rate Loans, and the succeeding
Eurodollar Interest Period of such continued Loans shall commence on such
expiration date; provided, however, no such outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan (i) if the continuation of, or
the conversion into, would violate any of the provisions of Section 4.02 or (ii)
if an Event of Default or a Potential Event of Default would occur or has
occurred and is continuing. Any conversion into or continuation of Eurodollar
Rate Loans under this Section 4.01(c) shall be in a minimum amount of $1,000,000
and in integral multiples of $1,000,000 in excess of that amount except in the
case of a conversion into or a continuation of an entire Borrowing of Non Pro
Rata Loans.
(ii) To convert or continue a Loan under Section 4.01(c)(i),
the Borrower shall deliver a Notice of Conversion/Continuation to the Agent no
later than 11:00 a.m. (New York time) at least three (3) Business Days in
advance of the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed conversion/continuation
date (which shall be a Business Day), (B) the principal amount of the Loan to be
converted/continued, (C) whether such Loan shall be converted and/or continued,
and (D) in the case of a conversion to, or continuation of, a Eurodollar Rate
Loan, the requested Eurodollar Interest Period. In lieu of delivering a Notice
of Conversion/Continuation, the Borrower may give the Agent telephonic notice of
any proposed conversion/continuation by the time required under this Section
4.01(c)(ii), and such notice shall be confirmed in writing delivered to the
Agent by facsimile transmission promptly (but in no event later than 5:00 p.m.
(New York time) on the same day), the original of which facsimile copy shall be
delivered to the Agent within three (3) days after the date of such
transmission. Promptly after receipt of a Notice of Conversion/Continuation
under this Section 4.01(c)(ii) (or telephonic notice in lieu thereof), the Agent
shall notify each Lender by telecopy, or other similar form of transmission, of
the proposed conversion/continuation. Any Notice of Conversion/Continuation for
conversion to, or continuation of, a Loan (or telephonic notice in lieu thereof)
shall be irrevocable, and the Borrower shall be bound to convert or continue in
accordance therewith.
(d) Default Interest. (i) Notwithstanding the rates of
interest specified in Section 4.01(a), effective on the date of the occurrence
of an Event of Default, and for as long thereafter as such Event of Default
shall be continuing, (A) the principal balance of all Loans shall bear interest
at a rate which is equal to the sum of (1) two percent (2.0%) per annum plus (2)
the rate of interest otherwise applicable to such Loans from time to time and
(B) to the extent permitted by applicable law, the principal balance of all
other Obligations shall bear interest at a per annum rate equal to the sum of
(1) the Base Rate, as in effect from time to time as interest accrues plus (2)
the then applicable Base Rate Margin plus (3) two percent (2.00%) per annum;
provided that, except in the case of an Event of Default arising under Section
11.01(a)(i) or Section 11.01(a)(ii), the Agent shall have given the Borrower
written notice of the provisions of this Section 4.01(d) becoming effective.
(ii) Interest accrued on the principal balance of all
Obligations other than the Loans shall be payable in arrears (A) on the last day
of each calendar quarter, commencing on the first such day following the
incurrence of such Obligation and (B) upon payment of such Obligation in full or
in part.
(e) Computation of Interest. Interest on all Obligations shall
be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of 360 days. In computing interest on
any Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan. In
computing interest on any other Obligation, the date of incurrence thereof shall
be included and the date of payment thereof shall be excluded.
4.02. Special Provisions Governing Eurodollar Rate Loans.
With respect to Eurodollar Rate Loans:
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan
shall be for a minimum amount of $1,000,000 and in integral multiples of
$1,000,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving
notice as set forth in Section 2.01(b) (with respect to a Borrowing of
Eurodollar Rate Loans) or Section 4.01(c) (with respect to a conversion into or
continuation of Eurodollar Rate Loans), the Borrower shall have the option,
subject to the other provisions of this Section 4.02, to select an interest
period (each, a "Eurodollar Interest Period") to apply to the Loans described in
such notice, subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing
of Eurodollar Rate Loans, a Eurodollar Interest Period of one or three
months in duration;
(ii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on
which the next preceding Eurodollar Interest Period expires;
(iii) If any Eurodollar Interest Period would otherwise expire
on a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if the
next succeeding Business Day occurs in the same calendar month, and if
there will be no succeeding Business Day in such calendar month, the
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(iv) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later than
the scheduled Revolving Credit Termination Date; and
(v) There shall be no more than three (3) Eurodollar Interest
Periods in effect at any one time.
(c) Determination of Interest Rate. As soon as practicable on
the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Agent shall
determine (pursuant to the procedures set forth in the definition of "Eurodollar
Rate") the interest rate which shall apply to the Eurodollar Rate Loans for
which an interest rate is then being determined for the applicable Eurodollar
Interest Period and shall promptly give notice thereof (in writing or by
telephone confirmed in writing) to the Borrower and to each Lender. The Agent's
determination shall be presumed to be correct, absent manifest error, and shall
be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Agent is advised by Citibank that deposits in Dollars
(in the applicable amounts) are not being offered by Citibank in the
London interbank market for such Eurodollar Interest Period; or
(ii) the Agent determines that adequate and fair means do not
exist for ascertaining the applicable interest rates by reference to
which the Eurodollar Rate then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Agent that the
Eurodollar Rate for Eurodollar Rate Loans comprising such Borrowing
will not adequately reflect the cost to such Requisite Lenders of
obtaining funds in Dollars in the London interbank market in the amount
substantially equal to such Lenders' Eurodollar Rate Loans in Dollars
and for a period equal to such Eurodollar Interest Period;
then the Agent shall forthwith give notice thereof to the Borrower, whereupon
(until the Agent notifies the Borrower that the circumstances giving rise to
such suspension no longer exist) the right of the Borrower to elect to have
Loans bear interest based upon the Eurodollar Rate shall be suspended and each
outstanding Eurodollar Rate Loan shall be converted into a Base Rate Loan on the
last day of the then current Eurodollar Interest Period therefor,
notwithstanding any prior election by the Borrower to the contrary.
(e) Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of, its
Eurodollar Lending Office or Eurodollar Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater amount
under any provision of Article XIII as a result of the transfer of any such
Eurodollar Rate Loan to any office (other than such Eurodollar Lending Office)
or any Affiliate (other than such Eurodollar Affiliate) than such Lender would
have been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(f) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
4.03. FeesFees. (a) Letter of Credit Fees. In addition to any
charges paid pursuant to Section 2.04(g), the Borrower shall pay to the (i)
Issuing Bank a fee equal to one-quarter of one percent (0.25%) on the face
amount of each Letter of Credit issued hereunder upon issuance of such Letter of
Credit (the "Fronting Fee") and (ii) Agent, for the account of the Lenders based
on their respective Pro Rata Shares, a fee (the "Letter of Credit Fee") accruing
at a per annum rate equal to the Eurodollar Rate Margin in effect from time to
time minus one-quarter of one percent (0.25%) on the undrawn face amount of each
outstanding Letter of Credit, payable quarterly, in arrears, on the last day of
each calendar quarter; provided that upon the occurrence of an Event of Default
and for so long thereafter as such Event of Default shall be continuing
unwaived, the rate at which the Letter of Credit Fee would otherwise accrue and
be payable shall be increased by two percent (2.0%) per annum.
(b) Unused Commitment Fee. (i) The Borrower shall pay to the
Agent, for the account of the Lenders in accordance with their respective Pro
Rata Shares, a fee (the "Unused Commitment Fee"), accruing at the rate of
one-half of one percent (0.50%) per annum on the average daily amount by which
the Revolving Credit Commitments exceed the Revolving Credit Obligations for the
period commencing on the Closing Date and ending on the Revolving Credit
Termination Date, such Unused Commitment Fee being payable (A) quarterly, in
arrears, commencing on the last day of the calendar quarter next succeeding the
Closing Date and (B) on the Revolving Credit Termination Date.
(ii) Notwithstanding the foregoing, in the event that any
Lender fails to fund its Pro Rata Share of any Loan requested by the Borrower
which such Lender is obligated to fund under the terms of this Agreement, (A)
such Lender shall not be entitled to any Unused Commitment Fees with respect to
its Revolving Credit Commitment until such failure has been cured in accordance
with Section 3.02(b)(v)(B) and (B) until such time, the Unused Commitment Fee
shall accrue in favor of the Lenders which have funded their respective Pro Rata
Shares of such requested Loan, shall be allocated among such performing Lenders
ratably based upon their relative Revolving Credit Commitments, and shall be
calculated based upon the average amount by which the aggregate Revolving Credit
Commitments of such performing Lenders exceeds the outstanding principal amount
of the Loans owing to such performing Lenders.
(c) Calculation and Payment of Fees. The Unused Commitment Fee
shall be calculated on the basis of the actual number of days elapsed in a
360-day year. All of the fees described in this Section 4.03 and the Fee Letter
shall be payable in addition to, and not in lieu of, interest, compensation,
expense reimbursements, indemnification and other Obligations, shall be payable
to the Agent at its office in New York, New York in immediately available funds,
shall constitute Obligations, and shall be secured by the Collateral.
All such fees shall be fully earned and nonrefundable when paid.
ARTICLE V
CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. Conditions Precedent to the Initial Loans and Letters of
CreditConditions Precedent to the Initial Loans and Letters of Credit. The
obligation of each Lender on the Closing Date to make any Loan requested to be
made by it, and the obligation of each Issuing Bank on the Closing Date to issue
any Letter of Credit requested to be issued by it, shall be subject to the
satisfaction of all of the following conditions precedent:
(a) Documents. The Agent shall have received on or before
the Closing Date all of the following:
(i) this Agreement, the Notes and all other agreements,
documents and instruments relating to the loan and other credit
transactions contemplated by this Agreement and described in the List
of Closing Documents attached hereto as Exhibit F and made a part
hereof, each duly executed where appropriate and in form and substance
satisfactory to the Agent; without limiting the foregoing, the Borrower
hereby directs its counsel, ▇▇▇▇▇ & ▇▇▇▇, to prepare and deliver to the
Agent, the Lenders and Sidley & Austin, the opinion referred to in such
List of Closing Documents;
(ii) the Projections, in form and substance satisfactory to
the Agent;
(iii) an Officer's Certificate executed and delivered by the
president or vice president of the Borrower certifying that all
conditions precedent have been met and no Potential Event of Default or
Event of Default has occurred or is continuing;
(iv) a Notice of Borrowing dated as of the Closing Date with
respect to Loans requested to be made on the Closing Date; and
(v) such additional documentation as the Agent may reasonably
request.
(b) Perfection of Liens; Lien Search Reports. Evidence that
all financing statements relating to the Collateral have been filed or recorded,
certificates representing Capital Stock included in the Collateral (and not
previously delivered pursuant to the Borrower Pledge Agreement and Guarantor
Pledge Agreements) have been delivered to the Agent (with duly executed stock
powers) and all recording fees and filing taxes have been paid.
(c) No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the requested Loans on the
Closing Date or (ii) result in a Material Adverse Effect.
(d) No Change in Condition. No change in the business, assets,
management, operations, or financial condition of the Borrower or any of its
Subsidiaries, shall have occurred since September 28, 1995, which change, in the
judgment of the Agent, will, or is reasonably likely to, result in a Material
Adverse Effect. No change in the corporate or capital structure of the Borrower
and its Subsidiaries shall have occurred since February 8, 1996. Except as
otherwise disclosed to the Agent in writing prior to the Closing Date, no change
in the composition of the Boards of Directors or Responsible Officers of the
Borrower or of Borrower's vice presidents acting as heads of its strategic
business units shall have occurred after February 8, 1996.
(e) Financial Statements; Budgets. Borrower shall have
delivered to the Lenders its most recently audited and unaudited Financial
Statements and five-year budgets for the Borrower and the Guarantors, in each
case satisfactory to the Agent and the Lenders.
(f) No Market Changes. Since February 8, 1996, no material
adverse change shall have occurred in the loan syndication, financial or capital
markets conditions generally that, in the judgment of Citicorp Securities, Inc.,
would materially impair syndication of the Revolving Credit Commitments.
(g) No Default. No "Event of Default" or "Potential Event of
Default" (in each case as defined in the 1995 Credit Agreement) shall have
occurred and be continuing and no Event of Default or Potential Event of Default
hereunder shall have occurred and be continuing or would result from the making
of the Loans.
(h) Representations and Warranties. All of the representations
and warranties contained in Section 6.01 and in any of the other Loan Documents
shall be true and correct in all material respects on and as of the Closing
Date.
(i) Litigation. No litigation shall be pending or threatened
nor shall any claim have been made with respect to any aspect of the
transactions contemplated by this Agreement and the other Loan Documents.
(j) Fees and Expenses Paid. There shall have been paid to the
Agent, for the accounts of the Lenders and the Agent, as applicable, all fees
and expenses due and payable on or before the Closing Date, including, without
limitation, all fees and expenses due and payable pursuant to the Fee Letter and
under the 1995 Credit Agreement. 5.02. Conditions Precedent to All Subsequent
Loans and Letters of CreditConditions Precedent to All Subsequent Loans and
Letters of Credit. The obligation of each Lender to make any Loan requested to
be made by it on any Funding Date and of each Issuing Bank to issue any Letter
of Credit requested to be issued by it on any day after the Closing Date is
subject to the following conditions precedent as of each such date, both before
and after giving effect to the Loans to be made, or Letters of Credit to be
issued, on such date:
(a) Representations and Warranties. All of the representations
and warranties of the Borrower contained in Section 6.01 and in any other Loan
Document (other than representations and warranties which expressly speak as of
a different date) shall be true and correct in all material respects.
(b) No Defaults. No Event of Default or Potential Event of
Default shall have occurred and be continuing or would result from the making of
the requested Loan.
(c) No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Agent shall not have
received from any Lender notice that, in the judgment of such Lender, litigation
is pending or threatened which is reasonably likely to, enjoin, prohibit or
restrain, or impose or result in the imposition of any material adverse
condition upon, such Lender's making of the requested Loan.
(d) No Material Adverse Effect. No event shall have occurred
since the date of this Agreement which has resulted, or is reasonably likely to
result, in a Material Adverse Effect.
The obligation of each Lender to make any Loan requested to be made by it on any
Funding Date, the proceeds of which will be used to acquire any Capital Stock,
assets or operations of any other Person, is subject to the further condition
that such acquisition is a Permitted Acquisition. Each submission by the
Borrower to the Agent of a Notice of Borrowing with respect to any Loan or a
Notice of Conversion/Continuation with respect to any Loan, each acceptance by
the Borrower of the proceeds of each Loan made, converted or continued
hereunder, and each submission of an application for a Letter of Credit and
acceptance by the Borrower of delivery of a Letter of Credit issued shall
constitute a representation and warranty by the Borrower as of the Funding Date
in respect of such Loan, the date of conversion or continuation, the date of
such application and the date of issuance of a Letter of Credit that all the
conditions contained in this Section 5.02 have been satisfied or waived in
accordance with Section 14.07.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the
BorrowerRepresentations and Warranties of the Borrower. In order to induce the
Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrower described herein, the Borrower hereby
represents and warrants to each Lender and the Agent that the following
statements are true, correct and complete:
(a) Organization; Corporate Powers. (i) The Borrower and each
Material Subsidiary (A) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (B) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have or is reasonably likely to have a Material Adverse
Effect, (C) has filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in the states of Minnesota and New Jersey, and (D) has
all requisite corporate power and authority to own, operate and (in the case of
the Borrower) encumber its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement.
(ii) As of the Closing Date, true, correct and complete copies
of the Organizational Documents identified on Schedule 6.01-A attached hereto
have been delivered to the Agent, each of which is in full force and effect, has
not been modified or amended except to the extent indicated therein and, to the
best of the Borrower's knowledge, there are no defaults under such
Organizational Documents and no events which, with the passage of time or giving
of notice or both, would constitute a default under such Organizational
Documents.
(b) Authority. (i) The Borrower and each Guarantor has the
requisite corporate power and authority (A) to execute, deliver and perform each
of the Loan Documents which have been executed by it as required by this
Agreement on or prior to the Closing Date and (B) to file or record the Loan
Documents which have been filed or recorded by it as required by this Agreement
on or prior to the Closing Date, with any Governmental Authority.
(ii) The execution, delivery, performance and filing or
recording, as the case may be, of each of the Loan Documents which have been
executed, filed or recorded as required by this Agreement on or prior to the
Closing Date and to which the Borrower or Guarantor is party and the
consummation of the transactions contemplated thereby, have been duly approved
by the respective boards of directors and, if necessary, the shareholders of the
Borrower and Guarantors and such approvals have not been rescinded. No other
corporate action or proceedings on the part of the Borrower or any Guarantor are
necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower or any
Guarantor is a party (A) has been duly executed, delivered, filed or recorded,
as the case may be, by it, (B) where applicable, creates valid Liens in the
Collateral covered thereby securing the payment of all of the Obligations
purported to be secured thereby, which Liens will be perfected upon the Agent's
filing appropriate financing statements with respect thereto or taking
possession of the underlying Collateral as may be required under the applicable
Requirements of Law, (C) constitutes the Borrower's or respective Guarantor's
(as applicable) legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights generally, and (D) is in full force and effect. To the best of Borrower's
knowledge, there are no Liens against any of the Collateral which would be
senior to the Liens granted under the Borrower Pledge Agreement or the Borrower
Security Agreement, other than Liens permitted by Section 9.03. Each of the
Borrower and the Guarantor parties to the Loan Documents have performed and
complied with all the terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by such parties on or
before the Closing Date (except to the extent waived by the required party(ies)
to this Agreement), all filings and recordings and other actions on the part of
the Borrower which are necessary or desirable to perfect and protect the Liens
granted pursuant to the Loan Documents and preserve their required priority have
been duly taken, and no Potential Event of Default or Event of Default exists
thereunder.
(c) Subsidiaries; Ownership of Equity Securities. Schedule
6.01-C attached hereto (i) contains a diagram indicating the corporate structure
of the Borrower and its Subsidiaries and a list of all other Persons in which
the Borrower or any of its Subsidiaries holds a direct or indirect partnership,
joint venture or other equity interest and indicates the nature of such interest
with respect to each Person included on such list; and (ii) accurately sets
forth (A) the correct legal name of such Person, the jurisdiction of its
incorporation or organization and the jurisdictions in which it is qualified to
transact business as a foreign corporation or otherwise and (B) the authorized,
issued and outstanding shares or interests of each class of equity Securities of
the Borrower and each of its Subsidiaries and the owners of such shares or
interests. None of the issued and outstanding equity Securities of any Material
Subsidiary is subject to any vesting, redemption, or repurchase agreement, and
there are no warrants or options (other than Permitted Equity Securities
Options) outstanding with respect to such equity Securities. The outstanding
equity Securities of each Material Subsidiary are free and clear of any Liens
other than those contemplated by the Loan Documents. The outstanding equity
Securities of the Borrower and each of the Material Subsidiaries are duly
authorized, validly issued, fully paid and nonassessable and are not Margin
Stock.
(d) No Conflict. The execution, delivery and performance of
each of the Loan Documents to which the Borrower or any Guarantor is a party do
not and will not (i) conflict with the Organizational Documents of the Borrower
or any such Guarantor, (ii) constitute a tortious interference with any
Contractual Obligation of such Person or conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of the Borrower or any such
Guarantor, or require termination of any Contractual Obligation, the
consequences of which violation, breach, default or termination, singly or in
the aggregate, will, or is reasonably likely to, result in a Material Adverse
Effect or is reasonably likely to subject the Agent or any of the Lenders to any
liability, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of the Borrower or any such
Guarantor, other than Liens contemplated by the Loan Documents, or (iv) require
any approval of the Borrower's or any such Guarantor's shareholders, equity
holders or members, as the case may be, which has not been obtained.
(e) Governmental Consents. Except as set forth on Schedule
6.01-E attached hereto, the execution, delivery and performance of each of the
Loan Documents to which the Borrower or any Guarantor is a party do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, except (i) filings,
consents or notices which have been made, obtained or given and (ii) filings
necessary to create or perfect security interests in the Collateral.
(f) Governmental Regulation. Neither the Borrower, nor any
Guarantor is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, or the Investment
Company Act of 1940, or any other federal or state statute or regulation which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated hereby or by the Loan Documents.
(g) Restricted Junior Payments. Since January 1, 1996, neither
the Borrower nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made or set apart any sum or Property for any Restricted Junior
Payment or agreed to do so, except as permitted pursuant to Section 9.06 of this
Agreement (prior to the Closing Date and as of the Closing Date) and as
otherwise described on Schedule 6.01-G.
(h) Financial Position. Complete and accurate copies of the
following Financial Statements, materials and other information have been
delivered to the Agent: (i) the Borrower's Annual Report on Form 10-K (including
audited financial statements) for each of the Fiscal Years ended December 31,
1993, December 31, 1994, and December 31, 1995, (ii) the Borrower's Quarterly
Report on Form 10-Q for the quarter ending September 28, 1995 and (iii) the
Borrower's Current Report on Form 8-K dated September 11, 1995. All Financial
Statements included in such materials were prepared in all material respects in
conformity with GAAP, except as otherwise noted therein, and fairly present in
all material respects the respective consolidated financial positions, and the
consolidated results of operations and cash flows for each of the periods
covered thereby of the Borrower and its Subsidiaries as at the respective dates
thereof. Neither the Borrower nor any of its Subsidiaries has any Accommodation
Obligation, contingent liability or liability for any taxes, long-term leases or
commitments, not permitted by the terms of Article IX, not reflected in the
audited Financial Statements delivered to the Agent on or prior to the Closing
Date as aforesaid, or not otherwise disclosed to the Agent and the Lenders in
writing, which will have or is reasonably likely to have a Material Adverse
Effect.
(i) Projections. Projections have been delivered to the Agent
on or before the Closing Date which, as of the Closing Date, are reasonable
based on the information available to the Borrower at the time so furnished and
which were prepared based on assumptions reviewed by the Agent.
(j) Indebtedness. Schedule 1.01.7 sets forth, as of the
Closing Date, all Funded Debt in an aggregate amount of $1,000,000 or more and
there are no defaults in the payment of principal or interest (after giving
effect to any applicable grace periods) on any such Funded Debt and no payments
thereunder have been deferred or extended beyond their stated maturity (except
as disclosed on such Schedule).
(k) Litigation; Adverse Effects. Except as set forth in
Schedule 6.01-K attached hereto, there is no action, suit, proceeding, Claim,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries or any of the Property (i) challenging the
validity or the enforceability of any of the Transaction Documents, (ii) which
will, or is reasonably likely to, result in any Material Adverse Effect, or
(iii) under the Racketeering Influenced and Corrupt Organizations Act or any
similar federal or state statute where such Person is a defendant in a criminal
indictment that provides for the forfeiture of assets to any Governmental
Authority as a criminal penalty. There is no material loss contingency within
the meaning of GAAP which has not been reflected in the annual audited
consolidated Financial Statements of the Borrower or its filings with the
Commission. Neither the Borrower nor any of its Subsidiaries is (A) in violation
of any applicable Requirements of Law which violation will result, or is
reasonably likely to result, in a Material Adverse Effect, or (B) subject to or
in default with respect to any final judgment, writ, injunction, restraining
order or order of any nature, decree, rule or regulation of any court or
Governmental Authority which will, or is reasonably likely to, result in a
Material Adverse Effect.
(l) No Material Adverse Effect. Other than as otherwise
disclosed in the Schedules attached hereto and the filings made with the
Commission and referenced in this Agreement, since September 28, 1995, there has
occurred no event which has resulted, or is reasonably likely to result, in a
Material Adverse Effect.
(m) Tax Examinations. The IRS has examined (or is foreclosed
from examining by applicable statutes) the Borrower's consolidated federal
income tax returns for all tax periods prior to and including the taxable year
ending December 31, 1993. All deficiencies which have been asserted against the
Borrower or any Material Subsidiary as a result of any federal, state, local or
foreign tax examination for each taxable year in respect of which an examination
has been conducted have been fully paid or finally settled (subject, in the case
of tax periods from 1989 through 1993, to review by the Joint Committee on
Taxation) or are being contested in good faith, and no issue has been raised in
any such examination which, by application of similar principles, reasonably can
be expected to result in assertion of a material deficiency for any other year
not so examined which has not been reserved for in the Borrower's consolidated
Financial Statements to the extent, if any, required by GAAP. Neither the
Borrower nor any of the Material Subsidiaries has taken any reporting positions
for which it does not have a reasonable basis and does not anticipate any
further material tax liability (which has not been reserved for in the
Borrower's consolidated Financial Statements to the extent, if any, required by
GAAP) with respect to the years which have not been closed pursuant to
applicable law.
(n) Payment of Taxes. All material tax returns and reports of
each of the Borrower and the Material Subsidiaries required to be filed have
been timely filed, and all taxes, assessments, fees and other charges of
Governmental Authorities thereupon and upon or relating to their respective
Property, assets, income and franchises which are shown in such returns or
reports to be due and payable have been paid, except to the extent (i) such
taxes, assessments, fees and other charges are being contested in good faith by
an appropriate proceeding diligently pursued as permitted by the terms of
Section 8.04 or do not exceed $250,000 and (ii) non-payment of the amounts
thereof would not, individually or in the aggregate, result in a Material
Adverse Effect. The Borrower has no knowledge of any proposed tax assessment
against the Borrower or any of the Material Subsidiaries that will, or is
reasonably likely to, result in a Material Adverse Effect.
(o) Performance. No Responsible Officer has any actual
knowledge, that the Borrower or any of the Material Subsidiaries has received
any notice, citation, or allegation, nor has actual knowledge, that (i) the
Borrower or any Material Subsidiary is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any Contractual Obligation applicable to it, (ii) any Property of the Borrower
or any Material Subsidiary is in violation of any Requirement of Law, or (iii)
any condition exists which, with the giving of notice or the lapse of time or
both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such violation, violations, default or
defaults, if any, will not, or will not reasonably be likely to, result in a
Material Adverse Effect.
(p) Disclosure. The representations and warranties of the
Borrower and Guarantors contained in the Loan Documents, and all certificates
and other documents delivered to the Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, taken as a whole, not
misleading. The Borrower has not intentionally withheld any fact from the Agent
or the Lenders in regard to any matter which will, or is reasonably likely to,
result in a Material Adverse Effect.
(q) Requirements of Law. The Borrower and the Material
Subsidiaries are in compliance with all Requirements of Law applicable to them
and their respective businesses, in each case where the failure to so comply
individually or in the aggregate will, or is reasonably likely to, result in a
Material Adverse Effect.
(r) Environmental Matters. (i) Except to the extent that
none of the following will result in a Material Adverse Effect or except as
disclosed on Schedule 6.01-R attached hereto, to the knowledge of the
Responsible Officers:
(A) the operations of the Borrower and the Material
Subsidiaries comply in all material respects with all applicable Environmental,
Health or Safety Requirements of Law;
(B) the Borrower and each of the Material Subsidiaries has
obtained all environmental, health and safety Permits necessary for its
respective operations, all such Permits are in good standing, and the Borrower
and each of the Material Subsidiaries are currently in material compliance with
all terms and conditions of such Permits;
(C) none of the Borrower or the Material Subsidiaries or any
of their respective present or past Real Property or operations, are subject to
or the subject of any judicial or administrative proceeding, order, judgment,
decree, dispute, negotiations, agreement, or settlement arising out of their
respective ownership of or operations on any past or present Property and
respecting (I) any Environmental, Health or Safety Requirements of Law, (II) any
Remedial Action, (III) any Claims or Liabilities and Costs arising from the
Release or threatened Release of a Contaminant into the environment, or (IV) any
violation of or liability under any Environmental, Health or Safety Requirement
of Law that Borrower or any Material Subsidiary reasonably believes will result
in a material expenditure of money;
(D) neither the Borrower nor any Material Subsidiary has filed
any notice under any applicable Requirement of Law (I) reporting a Release of a
Contaminant where remedial action has not been, or is not being, conducted to
the satisfaction of the appropriate Governmental Authority; (II) under Section
103(c) of CERCLA, indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable Environmental,
Health or Safety Requirement of Law where such violation has not been, or is not
being, corrected to the satisfaction of the appropriate Governmental Authority;
(E) none of the Borrower's or the Material Subsidiaries'
present or past Real Property is listed or proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive Environmental
Response Compensation Liability Information System List ("CERCLIS") or any
similar state list of sites requiring Remedial Action;
(F) neither the Borrower nor any of the Material Subsidiaries
has sent or directly arranged for the transport of any waste generated as a
result of their respective operations to any current or proposed NPL site,
CERCLIS or any similar state list of sites requiring Remedial Action;
(G) there is not now in connection with or resulting from
Borrower's or any Material Subsidiary's operations, nor, has there ever been on
or in any of the Real Property (I) any treatment, recycling, storage or disposal
of any hazardous waste requiring a permit under 40 C.F.R. Parts 264 and 265 or
any state equivalent, (II) any landfill, waste pile, underground storage tank or
surface impoundment, (III) any asbestos-containing material, or (IV) a Release
of any polychlorinated biphenyls (PCB) used in hydraulic oils, electrical
transformers or other Equipment;
(H) neither the Borrower nor any Material Subsidiary has
received any notice or Claim to the effect that any of such Persons is or may be
liable to any Person as a result of the Release or threatened Release of a
Contaminant into the environment;
(I) there have been no Releases of any Contaminants to the
environment from any Real Property except in compliance with Environmental,
Health or Safety Requirements of Law, or which have not been corrected to the
satisfaction of the appropriate Governmental Authorities;
(J) no Environmental Lien has attached to any Property owned
by the Borrower or any Material Subsidiary;
(K) none of the Real Property owned by the Borrower or a
Material Subsidiary is subject to any Environmental Property Transfer Act, or to
the extent such acts are applicable to any such Property, the Borrower and the
Material Subsidiaries have fully complied with the requirements of such acts.
(ii) Except as otherwise disclosed on Schedule 6.01-R, the
Borrower and each of the Material Subsidiaries are conducting and will continue
to conduct their respective business and operations in material compliance with
Environmental, Health or Safety Requirements of Law, and the Borrower and the
Material Subsidiaries, taken as a whole, have not been, and have no reason to
believe that they will be, subject to Liabilities and Costs arising out of or
relating to environmental, health or safety matters that will, or are reasonably
likely to, result in a Material Adverse Effect.
(s) ERISA. Neither the Borrower nor any ERISA Affiliate
maintains or contributes to any Benefit Plan or Multiemployer Plan other than
those listed on Schedule 6.01-S attached hereto. Each Plan maintained by the
Borrower or an ERISA Affiliate which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect either (i) has
received a favorable determination letter from the IRS that the Plan is so
qualified or (ii) an application for determination of such tax-qualified status
will be made to the IRS prior to the end of the applicable remedial amendment
period under Section 401(a) of the Internal Revenue Code as currently in effect,
and the Borrower or an ERISA Affiliate shall diligently seek to obtain a
determination letter with respect to such application. Except as identified on
Schedule 6.01-S, neither the Borrower nor any of its Subsidiaries maintains or
contributes to any employee welfare benefit plan within the meaning of Section
3(1) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA. To the knowledge of
the plan administrator, the Borrower and each of its Subsidiaries are in
compliance in all material respects with the responsibilities, obligations and
duties imposed on them by ERISA and the Internal Revenue Code with respect to
all Plans. Except as otherwise disclosed on Schedule 6.01-S, no Benefit Plan has
incurred any accumulated funding deficiency (as defined in Sections 302(a)(2) of
ERISA and 412(a) of the Internal Revenue Code) whether or not waived. Except as
otherwise disclosed on Schedule 6.01-S, neither the Borrower nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i)
has engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take
any action which would constitute or result in a Termination Event, which, in
either event, will result in an obligation to pay a material amount of money.
Neither the Borrower nor any ERISA Affiliate has any potential liability under
Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA which, singly or in the
aggregate, will result in an obligation to pay a material amount of money.
Neither the Borrower nor any ERISA Affiliate has incurred any liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
maintained by the Borrower or an ERISA Affiliate and furnished to the Agent is
complete and accurate in all material respects. Since the date of each such
Schedule B, there has been no material adverse change in the funding status or
financial condition of the Benefit Plan relating to such Schedule B. Neither the
Borrower nor any ERISA Affiliate has, within the past five (5) years, made a
complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a
Multiemployer Plan. Neither the Borrower nor any ERISA Affiliate has failed to
make a required installment or any other required payment under Section 412 of
the Internal Revenue Code on or before the due date for such installment or
other payment. Neither the Borrower nor any ERISA Affiliate is required to
provide security to a Benefit Plan under Section 401(a)(29) of the Internal
Revenue Code due to a Benefit Plan amendment that results in an increase in
current liability for the plan year. Neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement. The Borrower has made available to the Agent copies of
all of the following: each Benefit Plan and related trust agreement (including
all amendments to such Plan and trust) in existence or committed to as of the
Closing Date and in respect of which the Borrower or any ERISA Affiliate is
currently an "employer" as defined in section 3(5) of ERISA, and the most recent
summary plan description, actuarial report, and determination letter issued by
the IRS filed in respect of each such Benefit Plan in existence; and as to each
employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees of the Borrower or any of its Subsidiaries after
termination of employment other than as required by Section 601 of ERISA, the
most recent summary plan description for such plan and the aggregate amount of
the most recent annual payments made to terminated employees under each such
plan.
(t) Foreign Employee Benefit Matters. Neither the Borrower nor
any of its Subsidiaries or ERISA Affiliates maintains or contributes to any
Foreign Employee Benefit Plan or Foreign Pension Plan, the maintenance or
participation in which, or the failure to comply with Requirements of Law
applicable thereto, will or is reasonably likely to result in a Material Adverse
Effect.
(u) Labor Matters. There are no strikes, lockouts or other
grievances relating to any collective bargaining or similar agreement to which
the Borrower or any of its Subsidiaries is a party which are reasonably likely
to result in a Material Adverse Effect.
(v) Securities Activities. Neither the Borrower nor any of
its Subsidiaries is engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
(w) Solvency. After giving effect to the Loans to be made and
Letters of Credit to be issued on the Closing Date or such other date as Loans
or Letters of Credit requested hereunder are made or issued, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower and its Subsidiaries (on a consolidated basis) and
each of the Borrower and Dyn Funding, individually, are Solvent.
(x) Patents, Trademarks, Permits, Etc. (i) The Borrower and
each of the Material Subsidiaries, as applicable, owns, is licensed or otherwise
has the lawful right to use, all patents, trademarks, trade names, registered
copyrights, technology, know-how, and processes used in or necessary for the
conduct of its respective business as currently conducted which are material to
its operations and assets, taken as a whole. No claims are pending or, to the
best of Borrower's knowledge following diligent inquiry, threatened that the
Borrower or any of the Material Subsidiaries is infringing or otherwise
adversely affecting the rights of any Person with respect to such patents,
trademarks, trade names, copyrights, technology, know-how, and processes, except
for such claims and infringements as do not, in the aggregate, give rise to any
liability on the part of the Borrower or any Material Subsidiary which will, or
is reasonably likely to, result in a Material Adverse Effect.
(ii) The consummation of the transactions contemplated by the
Loan Documents will not impair the ownership of or rights under (or the license
or other right to use, as the case may be) any patents, trademarks, trade names,
copyrights, technology, know-how, or processes by the Borrower or any Material
Subsidiary in any manner which will, or is reasonably likely to, result in a
Material Adverse Effect.
(iii) Except to the extent otherwise provided herein, the
Borrower and each of the Material Subsidiaries has all Permits necessary for the
conduct of its respective business which are material to its operations and
assets, except to the extent the failure to have such Permits would not
reasonably be likely to result in a Material Adverse Effect.
(y) Assets and Properties. The Borrower and each of the
Material Subsidiaries has good and marketable title to substantially all of the
assets and Property (tangible and intangible) owned by it (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and Property are free and
clear of all Liens except Liens securing the Obligations and Liens permitted
under Section 9.03. Substantially all of the assets and Property owned by or
leased to and used by the Borrower and/or each such Material Subsidiary which is
material to the operation of their respective businesses is in adequate
operating condition and repair, ordinary wear and tear excepted, is free and
clear of any known defects except such defects as do not substantially interfere
with the continued use thereof in the conduct of normal operations, and is able
to serve the function for which they are currently being used, except in each
case where the failure of such asset to meet such requirements would not, or is
not reasonably likely to, result in a Material Adverse Effect. Neither this
Agreement nor any other Loan Document, nor any transaction contemplated under
any such agreement, will affect any right, title or interest of the Borrower or
any Material Subsidiary of the Borrower in and to any of such assets in a manner
that would, or is reasonably likely to, result in a Material Adverse Effect.
(z) Insurance. Schedule 6.01-Z attached hereto accurately sets
forth as of the Closing Date all insurance policies and programs currently in
effect with respect to the respective Property and assets and business of the
Borrower and its Material Subsidiaries, specifying for each such policy and
program, (i) the amount thereof, (ii) the risks insured against thereby, (iii)
the name of the insurer and each insured party thereunder, (iv) the policy or
other identification number thereof, (v) the expiration date thereof, (vi) the
annual premium with respect to property and business interruption insurance
included on such Schedule, and (vii) a list of claims made thereunder during the
immediately preceding three (3) calendar years, under which the amount claimed
exceeds, individually, $500,000. On or before the Closing Date, the Borrower
made copies of all such insurance policies available to the Agent for review at
Borrower's chief executive office. Such insurance policies and programs are
currently in full force and effect, in compliance with the requirements of
Section 8.05 and are in amounts, subject to the limitations of coverage set
forth therein, sufficient to cover the replacement value of the respective
Property and assets of the Borrower and the Material Subsidiaries reasonably
anticipated to be subject to a claim thereunder at any given time.
(aa) Pledge of Capital Stock. The granting of the security
interest by (i) the Borrower in the Capital Stock of the those Subsidiaries
identified in the Borrower Pledge Agreement and (ii) certain Guarantors in the
Capital Stock of their Subsidiaries identified in the Guarantor Pledge
Agreements, in each case, constituting a portion of the Collateral for the
benefit of the Holders and the perfection of such security interest, as
contemplated by the terms of the Borrower Pledge Agreement and Guarantor Pledge
Agreements, is not made in violation of the registration provisions of the
Securities Act, any applicable provisions of other federal securities laws,
state securities or "Blue Sky" law, or applicable general corporation law or in
violation of any other Requirement of Law.
(bb) Government Contracts. For purposes of the provisions of
this Agreement relating solely to Government Contracts only, the term "Material
Subsidiary" shall include all Subsidiaries of the Borrower performing Government
Contracts with the United States Government worldwide.
(i) Neither the Borrower nor any of the Borrower's
Subsidiaries is party to any Contractual Obligation or subject to any
Requirement of Law relating to organizational conflicts of interest between or
among the Borrower and its Subsidiaries or otherwise that would result in the
termination of any Material Government Contract or that is reasonably likely to
impose any material limitation on the Borrower's or such Material Subsidiary's
ability to perform such contract or which is reasonably likely to result in a
material adverse effect on the Borrower's or such Material Subsidiary to receive
similar Government contracts in the future.
(ii) To the best of Borrower's knowledge after diligent
inquiry, no payment has been made by the Borrower or any of the Material
Subsidiaries, or by any Person authorized to act on their behalf, to any Person
within the past three (3) years in connection with any Government Contract of
the Borrower or any Material Subsidiary, which payment would be a violation of
applicable procurement laws or regulations or of the Foreign Corrupt Practices
Act or of any other Requirement of Law.
(iii) With respect to each Government Contract to which the
Borrower or any of the Material Subsidiaries is a party, to the best of
Borrower's Principals' knowledge, except as set forth on Schedule 6.01-BB,
within the last three (3) years: (A) neither the United States Government nor
any prime contractor, subcontractor or other Person has notified the Borrower or
any such Material Subsidiary, in writing, that the Borrower or any Material
Subsidiary has breached or violated any material Requirement of Law, or any
material certificate or representation, or any material clause which has
resulted in a cure notice; and (B) solely with respect to Material Government
Contracts, no termination for default is currently in effect pertaining to any
such Material Government Contract.
(iv) Except as otherwise disclosed to the Agent in writing, to
the best of Borrower's Principals' knowledge, (A) none of the Borrower or any of
the Material Subsidiaries or any of their respective directors or officers is
(or during the last five (5) years has been) under civil investigation by the
United States Department of Justice or a state attorney general or under
criminal investigation by any Governmental Authority, or is under indictment by
any Governmental Authority with respect to any irregularity, misstatement or
omission arising under or relating to any activities of the Borrower or any
Material Subsidiary of the Borrower under a Government Contract; and (B) during
the last five (5) years, none of the Borrower or any of the Material
Subsidiaries has made a voluntary disclosure to the United States Government
with respect to any irregularity, misstatement or omission arising under or
relating to a Government Contract, in each case except (with respect to such
matters occurring after the Closing Date) as disclosed to the Lenders.
(v) Except as otherwise disclosed to the Agent in writing,
there exist (A) no outstanding material claims against the Borrower or any of
the Material Subsidiaries, either by the United States Government or by any
prime contractors, subcontractor, vendor or other third party, arising under or
relating to any Government Contract; and (B) no material disputes between the
Borrower or any of the Material Subsidiaries and the United States Government
under the Contract Disputes Act or any other Federal statute or between the
Borrower or any of the Material Subsidiaries and any prime contractor,
subcontractor or vendor arising under or relating to any such Government
Contract, which is reasonably likely to result in a Material Adverse Effect.
(vi) To the best of Borrower's knowledge, none of the Borrower
or any of the Material Subsidiaries or any of their respective directors,
officers or employees is (or during the last five (5) years has been) suspended
or debarred from doing business with the United States Government or is (or
during such period was) the subject of a finding of nonresponsibility or
ineligibility for United States Government contracting.
(cc) No Challenged Costs. To the best of Borrower's knowledge,
no cost incurred pertaining to any Government Contract of the Borrower or any of
the Material Subsidiaries is the subject of any investigation or has been
disallowed by the United States Government or any of its agencies which is
reasonably likely to result in a Material Adverse Effect.
(dd) No Money Withheld. To the Borrower's knowledge, within
the past year, no more than $1,000,000 has been withheld or set off for payment
of contract debts, as described in Federal Acquisition Regulation Sections
32.611 and 32.612, with respect to any Receivables arising under any Government
Contract of the Borrower or any of the Material Subsidiaries, except for
retainages contracted for under certain such Government Contracts and, with
respect to the year preceding the Closing Date, amounts disclosed to the Agent
prior to the Closing Date.
(ee) Cost Accounting and Property Systems. The cost accounting
and property systems with respect to Government Contracts of the Borrower and
the Material Subsidiaries are in compliance with all applicable Requirements of
Law and Contractual Obligations, except to the extent non-compliance therewith
would not be reasonably likely to result in a Material Adverse Effect.
(ff) Receivables Purchase Transaction. All conditions
precedent to, and all consents necessary to permit, the consummation of the
transactions contemplated by the Receivables Purchase Documents have been
satisfied or delivered, or waived, and no material breach of any term or
provision of any Receivables Purchase Document has occurred which is continuing
and no action has been taken by any competent authority which restrains,
prevents or imposes material adverse conditions upon, or seeks to restrain,
prevent or impose material adverse conditions upon, the consummation of the
transactions contemplated by the Receivables Purchase documents or the continued
performance of the parties to the Receivables Purchase Documents in accordance
with the terms thereof. Except as disclosed in Schedule 6.01-FF, the terms of
the Existing Receivables Purchase Documents continue in effect unmodified since
July 25, 1995. The Borrower and its Subsidiaries have complied with all
applicable laws and regulatory approval requirements and all contractual
approval and consent requirements with respect to the transactions contemplated
by the Receivables Purchase Documents, and no material breach of any term or
provision of any instrument or document pertaining to the Receivables Purchase
Documents has occurred.Schedule 6.01-FF, the terms of the Existing Receivables
Purchase Documents continue in effect unmodified since July 25, 1995. The
Borrower and its Subsidiaries have complied with all applicable laws and
regulatory approval requirements and all contractual approval and consent
requirements with respect to the transactions contemplated by the Receivables
Purchase Documents, and no material breach of any term or provision of any
instrument or document pertaining to the Receivables Purchase Documents has
occurred.
ARTICLE VII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities not yet due), unless the Requisite Lenders
shall otherwise give their prior written consent thereto:
7.01. Financial StatementsFinancial Statements. The Borrower
shall maintain, and cause each of its Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of consolidated and consolidating Financial
Statements in conformity with GAAP and each of the Financial Statements
described below shall be prepared from such system and records. The Borrower
shall deliver or cause to be delivered to the Agent and the Lenders:
(a) Monthly Reports. As soon as practicable, and in any event
within forty-five (45) days after the end of each Fiscal Month of the Borrower
(other than the Fiscal Month ending in December for which such period shall be
sixty (60) days) in each Fiscal Year, the consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of such period (i) for such Fiscal
Month and (ii) for the period beginning on the first day of such Fiscal Year and
ending on the last day of such Fiscal Month, together with the related
consolidated statements of income and cash flow of the Borrower and its
Subsidiaries for such periods, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous Fiscal
Year and the corresponding figures from the consolidated financial forecast for
the current Fiscal Year delivered on the Closing Date or pursuant to Section
7.01(e), as applicable, certified by a Financial Officer as fairly presenting
the consolidated financial position of the Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and cash flow for the
Fiscal Months of the Borrower indicated, subject to normal year end adjustments.
(b) Annual Reports. As soon as practicable, and in any event
within one hundred (100) days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated and
consolidating statements of income, stockholders' equity and cash flow of the
Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the corresponding figures for the previous Fiscal Year and
the corresponding figures from the consolidated financial forecast for the
current Fiscal Year delivered on the Closing Date or pursuant to Section
7.01(e), as applicable, and (ii) a report with respect to such consolidated
Financial Statements of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent certified
public accountants acceptable to the Agent, which report shall be unqualified
and shall state that such Financial Statements fairly present the consolidated
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP (except for changes with which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP or any such other independent certified public accountants, if applicable,
shall concur and which shall have been disclosed in the notes to the Financial
Statements) and that the examination by such accountants in connection with such
consolidated Financial Statements has been made in accordance with generally
accepted auditing standards.
(c) Officer's Certificate. Together with each delivery of any
Financial Statement pursuant to paragraph (a) and (b) of this Section 7.01, (i)
an Officer's Certificate of the Borrower substantially in the form of Exhibit G
attached hereto and made a part hereof, stating that the Financial Officer
signatory thereto has reviewed the terms of the Loan Documents, and has made, or
caused to be made under his/her supervision, a review in reasonable detail of
the transactions and consolidated and consolidating financial condition of the
Borrower and its Subsidiaries during the accounting period covered by such
Financial Statements, that such review has not disclosed the existence during or
at the end of such accounting period, and that such Person does not have
knowledge of the existence as at the date of such Officer's Certificate, of any
condition or event which constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action the Borrower or any of
its Subsidiaries has taken, is taking and proposes to take with respect thereto;
and (ii) a certificate (the "Compliance Certificate"), signed by a Financial
Officer setting forth calculations (with such specificity as the Agent may
reasonably request) for the period then ended which demonstrate compliance, when
applicable, with the provisions of Article X.
(d) Accountant's Statement and Privity Letter. Together with
each delivery of the Financial Statements referred to in Section 7.01(b), a
written statement of the firm of independent certified public accountants giving
the report thereon (i) stating that their audit examination has included a
review of the terms of this Agreement as it relates to accounting matters, (ii)
stating whether, in connection with their audit examination, any condition or
event which constitutes an Event of Default or Potential Event of Default has
come to their attention, and if such condition or event has come to their
attention, specifying the nature and period of existence thereof; provided that
such accountants shall not be liable by reason of any failure to obtain
knowledge of any such condition or event that would not be disclosed in the
course of their audit examination, and (iii) stating that based on their audit
examination nothing has come to their attention which causes them to believe
that the information contained in either or both of the certificates delivered
therewith pursuant to Section 7.01(c) (as the information contained in such
certificates relates to the covenants set forth in Article X) is not correct or
that the matters set forth in the Compliance Certificate delivered therewith
pursuant to Section 7.01(c)(ii) for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement. The statement referred to above
shall be accompanied by (x) a copy of the draft management letter or any similar
report delivered to the Borrower or to any officer or employee thereof by such
accountants in connection with such Financial Statements and (y) a letter in
substantially the form of Exhibit H attached hereto and made a part hereof from
the Borrower to such accountants informing such accountants that the Lenders are
relying upon the Financial Statements audited by such accountants and delivered
to the Agent and the Lenders pursuant to Section 7.01(b). The Borrower shall
deliver the final executed management letter (a draft of which is referenced in
clause (x) above) delivered by such accountants, promptly after its receipt
thereof. The Agent and each Lender may, with the written consent of the Borrower
(which consent shall not be unreasonably withheld or delayed), communicate
directly with such accountants.
(e) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than the last day of each Fiscal Year a
preliminary budget by Fiscal Quarter of the Borrower for the next succeeding
Fiscal Year and business plan for the next succeeding four (4) Fiscal Years,
substantially in the form of the business plan heretofore delivered to the Agent
and the Lenders; and within forty-five days (45) after the end of each Fiscal
Year of the Borrower, a consolidated plan and financial forecast, prepared in
accordance with the Borrower's normal accounting procedures applied on a
consistent basis, for the five (5) Fiscal Year period of the Borrower commencing
in the Fiscal Year in which delivered, including, without limitation, (i)
forecasted consolidated balance sheets and statements of cash flow and income
statement of the Borrower for such Fiscal Years, (ii) forecasted consolidated
and consolidating balance sheets, statement of cash flow and income statement of
the Borrower and its Subsidiaries for and as of the end of each Fiscal Month of
such Fiscal Years, (iii) the amount of forecasted Capital Expenditures for such
Fiscal Years, and (iv) forecasted compliance with the provisions of Article X,
each of the foregoing prepared for each Fiscal Month in the first Fiscal Year of
such five Fiscal Year period and accompanied by a report explaining all material
changes and departures for the first of such five (5) Fiscal Years from the
preliminary business plan delivered to the Agent and the Lenders for such Fiscal
Year.
(f) Monthly Bank Statements. As soon as available after the
Agent's request therefor, a copy of each monthly statement prepared by the
applicable depositary bank with respect to each of the Borrower's and each
Guarantor's depositary accounts identified by the Agent in such request.
(g) Notices of Indemnities and Warranties. Promptly after
entering into a Contractual Obligation under which the Borrower or any Guarantor
incurs obligations or liabilities for any indemnities or warranties outside of
the ordinary course of its business, written notice thereof and, to the extent
possible, an estimate of the projected amount of such obligation or liability
and the time period over which the same is likely to be incurred.
7.02. Events of DefaultEvents of Default. Promptly upon any of
the chief executive officer or any Financial Officer obtaining knowledge (a) of
any condition or event which constitutes an Event of Default or Potential Event
of Default, or becoming aware that any Lender or the Agent has given any notice
with respect to a claimed Event of Default or Potential Event of Default under
this Agreement, (b) that any Person has given any notice to the Borrower or any
Material Subsidiary or taken any other action with respect to a claimed default
or event or condition of the type referred to in Section 11.01(e), or (c) of any
condition or event which has resulted, or is reasonably likely to result, in a
Material Adverse Effect or affect the value of, or the Agent's interest in, the
Collateral in any material respect, the Borrower shall deliver to the Agent and
the Lenders an Officer's Certificate specifying (i) the nature and period of
existence of any such claimed default, Event of Default, Potential Event of
Default, condition or event, (ii) the notice given or action taken by such
Person in connection therewith, and (iii) what action the Borrower has taken, is
taking and proposes to take with respect thereto.
7.03. LawsuitsLawsuits. (a) Institution of Proceedings.
Promptly upon a Responsible Officer's obtaining knowledge of the institution of,
or written threat of, any action, suit, proceeding, governmental investigation
or arbitration against or affecting the Borrower or any of its Subsidiaries or
any of the Property not previously disclosed pursuant to Section 6.01(k), which
action, suit, proceeding, governmental investigation or arbitration is
reasonably likely to expose, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which are reasonably likely to expose, in
the Borrower's reasonable judgment, the Borrower and/or any of its Subsidiaries
to liability in an amount aggregating $1,000,000 or more (exclusive of claims
covered by insurance policies of the Borrower and its Subsidiaries), the
Borrower shall give written notice thereof to the Agent and the Lenders and
provide such other information as may be reasonably available, and not subject
to attorney-client privilege which would be abrogated by such provision thereof,
to enable the each Lender and the Agent and its counsel to evaluate such
matters.
(b) Additional Reports. In addition to the requirements set
forth in clause (a) of this Section 7.03, the Borrower shall promptly give
written notice of any change in the status of any action, suit, proceeding,
governmental investigation or arbitration covered by a report delivered pursuant
to clause (a) and provide such other information as may be reasonably available
to it to enable each Lender and the Agent and its counsel to evaluate such
matters.
7.04. ERISA NoticesERISA Notices. The Borrower shall deliver
or cause to be delivered to the Agent and the Lenders, at the Borrower's
expense, the following information and notices as soon as reasonably possible,
and in any event:
(a) within ten (10) Business Days after the Borrower knows or
has reason to know that a Termination Event has occurred, a written
statement of a Financial Officer describing such Termination Event and
the action, if any, which the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
(b) within ten (10) Business Days after the Borrower knows or
has reason to know that an assessment of a prohibited transaction
excise tax under Section 4975 of the Internal Revenue Code has
occurred, a statement of a Financial Officer describing such
transaction and the action which the Borrower or any ERISA Affiliate
has taken, is taking or proposes to take with respect thereto;
(c) within ten (10) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (form 5500
series), including Schedule B thereto, filed with respect to each
Benefit Plan;
(d) within ten (10) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any
Benefit Plan, copies of each such report;
(e) within ten (10) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within ten (10) Business Days after the occurrence any
material increase in the benefits of any existing Benefit Plan or the
establishment of any new Benefit Plan or the commencement of
contributions to any Benefit Plan to which the Borrower or any ERISA
Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within ten (10) Business Days after the Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice;
(h) within ten (10) Business Days after the Borrower receives
notice of any unfavorable determination letter from the IRS regarding
the qualification of a Plan under Section 401(a) of the Internal
Revenue Code, copies of each such notice and letter; and
(i) within three (3) Business Days after a Responsible Officer
obtains knowledge that Borrower or any ERISA Affiliate has failed, to
make a required installment or any other required payment under Section
412 of the Internal Revenue Code on or before the due date for such
installment or payment, a notification of such failure.
For purposes of this Section 7.04, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the Administrator of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
7.05. Environmental NoticesEnvironmental Notices. (a) The
Borrower shall notify the Agent and the Lenders in writing, promptly upon any
Responsible Officer's learning thereof, of any:
(i) notice or claim to the effect that the Borrower or any
Material Subsidiary is or is reasonably likely to be liable to any
Person as a result of the Release or threatened Release of any
Contaminant into the environment which could reasonably result in an
expenditure of $1,000,000 or more;
(ii) notice that the Borrower or any Material Subsidiary is
subject to investigation by any Governmental Authority evaluating
whether any Remedial Action is needed to respond to the Release or
threatened Release of any Contaminant into the environment which could
reasonably result in an expenditure of $1,000,000 or more;
(iii) notice that any owned Property is subject to an
Environmental Lien;
(iv) notice to the Borrower or any Material Subsidiary of any
material violation of any Environmental, Health or Safety Requirement
of Law which is reasonably likely to result in a Material Adverse
Effect;
(v) condition which might reasonably result in a material
violation of any Environmental, Health or Safety Requirement of Law
which is reasonably likely to result in a Material Adverse Effect;
(vi) commencement or threat of any judicial or administrative
proceeding alleging a material violation by the Borrower or any
Material Subsidiary of any Environmental, Health or Safety Requirement
of Law which is reasonably likely to result in a Material Adverse
Effect;
(vii) any proposed acquisition of stock, assets, real estate,
or leasing of property, or any other action by the Borrower or any
Material Subsidiary that could subject the Borrower or any Material
Subsidiary to environmental, health or safety Liabilities and Costs
which could reasonably result in an expenditure of $1,000,000 or more;
or
(viii) any filing or report made by the Borrower or any
Material Subsidiary with any Governmental Authority with respect to any
unpermitted Release or threatened Release of a Contaminant which could
reasonably result in an expenditure of $1,000,000 or more.
(b) Within forty-five (45) days after the end of each Fiscal
Year, the Borrower shall submit to the Agent and the Lenders a report
summarizing any material adverse change in the status of environmental, health
or safety compliance, hazard or liability issues not otherwise identified in
notices required pursuant to Section 7.05(a) or disclosed on Schedule 6.01-R.
7.06. Labor MattersLabor Matters. The Borrower shall notify
the Agent and the Lenders in writing, promptly upon the Borrower's learning
thereof, of any material labor dispute to which the Borrower or any Material
Subsidiary may become a party, including, without limitation, any strikes,
lockouts or other grievances relating to such Persons' plants and other
facilities, which is reasonably likely to result in a Material Adverse Effect.
7.07. Receivables Purchase Documents. From and after Agent's
request therefor, the Borrower shall deliver a copy of the following, promptly
upon its receipt thereof (where applicable), and concurrently with its delivery
thereof (where applicable), to the Agent and the Lenders: (a) each notice or
other communication (other than routine daily reports) delivered by or on behalf
of the Borrower or Dyn Funding to any Person in connection with any agreement or
other document relating to the transactions contemplated by any of the
Receivables Purchase Documents by the same means as such notice or other
communication is delivered to such Person; (b) each material notice or other
material communication received by the Borrower or Dyn Funding from any Person
in connection with any agreement or other document relating to the transactions
contemplated by any of the Receivables Purchase Documents; (c) each report
(other than routine daily reports, but including, without limitation, monthly
determination date statements) delivered by or on behalf of the Borrower or Dyn
Funding to any Person pursuant to the requirements of any of the Receivables
Purchase Documents by the same means as such report is delivered to such Person;
(d) each written request delivered by the "Servicer" (as defined in the
Receivables Purchase Documents) to the "Trustee" (as defined in the Receivables
Purchase Documents) under Section 3.04(a) of the Servicing Agreement of the
Existing Receivables Purchase Documents or like provision of the 1997
Receivables Purchase Documents; and (e) the monthly accounting of amounts
withdrawn and paid to the "Servicer" pursuant to such Section 3.04(b) or like
provision provided by the aforesaid "Trustee" to the "Servicer".
7.08. Other ReportsOther Reports. The Borrower shall deliver
or cause to be delivered to the Agent and the Lenders copies of all Financial
Statements, material reports and material notices, if any, sent or made
available generally by the Borrower to its Securities holders or filed with the
Commission (to the extent not otherwise delivered by the Borrower hereunder) and
all material notifications received by the Borrower or any Subsidiary of the
Borrower pursuant to the Securities Exchange Act and the rules promulgated
thereunder. The Borrower shall use its best efforts to deliver or cause to be
delivered to the Agent and the Lenders copies of all press releases made
available generally by the Borrower or a Subsidiary to the public concerning
material developments in the business of the Borrower or any such Subsidiary.
7.09. Other InformationOther Information. Promptly upon
receiving a request therefor from the Agent or the Requisite Lenders, the
Borrower shall prepare and deliver to the Agent and the Lenders such other
information with respect to the Borrower, any of its Subsidiaries, or the
Collateral, including, without limitation, schedules identifying and describing
the Collateral and any dispositions thereof, as from time to time may be
reasonably requested by the Agent or the Requisite Lenders.
7.10. Government Contracts. (i) The Borrower shall notify the
Agent in writing promptly after the Borrower knows thereof, of any loss or
threatened loss of the security clearances referenced in Section 8.10; and (ii)
the Borrower shall notify the Agent in writing promptly upon (and, in any event,
within five (5) Business Days of) the Borrower obtaining knowledge of any
material adverse change in the status of any action, suit, proceeding,
governmental investigation or other matter disclosed on or arising out of the
matters disclosed on Schedule 6.01-BB and shall provide such other information
as may be reasonably available to it to enable the Lender and its counsel to
evaluate such matters.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments
are outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities not yet due), unless the Requisite Lenders shall
otherwise give prior written consent:
8.01. Corporate Existence, Etc.Corporate Existence, Etc. The
Borrower shall, and shall cause each of the Material Subsidiaries to, at all
times maintain its corporate existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and franchises material
to its businesses, except where the loss or termination of such rights and
franchises is not reasonably likely to result in a Material Adverse Effect.
8.02. Corporate Powers; Conduct of BusinessCorporate Powers;
Conduct of Business. The Borrower shall, and shall cause each of the Material
Subsidiaries to, qualify and remain qualified to do business and maintain its
good standing in each jurisdiction in which the nature of its business and the
ownership of its Property requires it to be so qualified and in good standing,
except where the failure to be so qualified and in good standing is not
reasonably likely to result in a Material Adverse Effect or impair the ability
of the Borrower, the Material Subsidiaries, or the Agent to enforce Receivables
owing by account debtors in such jurisdictions.
8.03. Compliance with Laws, Etc.Compliance with Laws, Etc. The
Borrower shall, and shall cause each of the Material Subsidiaries to, (a) comply
with all Requirements of Law and all restrictive covenants affecting it or its
business, Property, assets or operations and (b) obtain as needed all Permits
necessary for its operations and maintain such Permits in good standing, except
in the case where noncompliance with either clause (a) or (b) above is not
reasonably likely to result in a Material Adverse Effect.
8.04. Payment of Taxes and Claims; Tax ConsolidationPayment of
Taxes and Claims; Tax Consolidation. The Borrower shall, and shall cause each of
its Subsidiaries to, pay (a) all taxes, assessments and other governmental
charges imposed upon it or on any of its Property or assets or in respect of any
of its franchises, business, income or Property by any U.S. federal, state, or
local Governmental Authority, which singly or collectively are in an amount of
$1,000,000 or more, before any penalty or interest accrues thereon, and (b) all
material Claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien (other than a Lien permitted by Section 9.03) upon
any of the Borrower's or such Subsidiary's Property or assets, prior to the time
when any penalty or fine shall be assessed with respect thereto; provided,
however, that failure to pay any such taxes, assessments and governmental
charges referred to in clause (a) above or Claims referred to in clause (b)
above shall not result in a Potential Event of Default or Event of Default if
being contested in good faith by appropriate proceedings diligently instituted
and conducted and if such reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor and
further provided that upon the payment of such taxes, assessments and
governmental charges referred to in clause (a) above and all penalties and
interest associated therewith, the amount of such taxes, assessments and
governmental charges shall not be included in determination of the aforesaid
$1,000,000 threshhold. The Borrower will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person (other than the Borrower and its Subsidiaries).
8.05. InsuranceInsurance. The Borrower shall maintain for
itself and the Material Subsidiaries, or shall cause each of the Material
Subsidiaries to maintain in full force and effect the insurance policies and
programs listed on Schedule 6.01-Z or substantially similar policies and
programs or other policies and programs as are acceptable to the Agent. All such
insurance including any self-insurance programs shall be reasonably satisfactory
to the Agent; all such policies and programs otherwise obtained shall be
maintained with responsible and reputable insurance companies or associations,
in such amounts and covering such risks as are usual for companies engaged in
similar businesses and owning similar property in the same general geographic
areas in which the Borrower and/or the Material Subsidiaries operate. Each
policy pertaining to insurance coverage with respect to the Collateral or
business interruption shall, if requested in writing by the Agent, contain an
endorsement naming the Agent as an additional insured, as its interests may
appear, under such policy or be subject to a loss payable endorsement in form
and substance satisfactory to the Agent. Such endorsement or an independent
instrument furnished to the Agent shall provide that the insurance companies
will give the Agent at least thirty (30) days' written notice before any such
policy or policies of insurance shall be altered adversely to the interests of
the Holders or cancelled and that no act, whether willful or negligent, or
default of the Borrower, any of its Material Subsidiaries or any other Person
shall affect the right of the Agent to recover under such policy or policies of
insurance in case of loss or damage. In the event the Borrower or any of the
Material Subsidiaries, at any time or times hereafter shall fail to obtain or
maintain any of the policies or insurance required herein with respect to its
Property or business interruption or to pay any premium in whole or in part
relating thereto, then the Agent, without waiving or releasing any obligations
or resulting Event of Default hereunder, may at any time or times thereafter
(but shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto
which the Agent deems advisable. All sums so disbursed by the Agent shall
constitute Protective Advances hereunder and be part of the Obligations, payable
as provided in this Agreement.
8.06. Inspection of Property; Books and Records;
DiscussionsInspection of Property; Books and Records; Discussions. The Borrower
shall, and shall cause each of the Material Subsidiaries to, permit any
authorized representative(s) designated by either the Agent or any Lender to
visit and inspect, whether by access to Borrower's and the Material
Subsidiaries' MIS or otherwise, any office or other location of thereof, to
examine, audit, check and make copies of its respective financial and accounting
records, books, journals, orders, receipts and any correspondence (other than
privileged correspondence with legal counsel, information and materials deemed
proprietary for competitive purposes, and information and materials subject to
Requirements of Law relating to confidentiality) and other data relating to
their respective businesses or the transactions contemplated hereby or
referenced herein (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers, management personnel, and independent
certified public accountants, all upon reasonable written notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested. Each such visitation and inspection (i) by or on behalf of any Lender
shall be at such Lender's expense and (ii) by or on behalf of the Agent shall be
at the Borrower's expense. The Borrower shall keep and maintain, and cause each
of the Material Subsidiaries to keep and maintain, in all material respects on
its MIS and otherwise proper books of record and account in which entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its respective businesses and activities, including, without limitation,
transactions and other dealings with respect to the Collateral. If an Event of
Default has occurred and is continuing, the Borrower, upon the Agent's request,
shall turn over any such records to the Agent or its representatives which the
Agent may reasonably request in connection with enforcement of the Liens granted
to it and/or the Contractual Obligations arising with respect to the Collateral;
provided, however, that the Borrower may, in its discretion, retain copies of
such records.
8.07. ERISA ComplianceERISA Compliance. The Borrower shall,
and shall cause each of the Material Subsidiaries and ERISA Affiliates to,
establish, maintain and operate all Plans to comply in all respects with the
provisions of ERISA, the Internal Revenue Code, all other applicable laws, and
the regulations and interpretations thereunder and the respective requirements
of the governing documents for such Plans, except to the extend such
non-compliance would not reasonably be likely to result in a Material Adverse
Effect.
8.08. Deposit AccountsDeposit Accounts. The Borrower shall,
and shall cause each of the Guarantors to, enter into agreements substantially
in the form attached hereto as Exhibit I with respect to each lock-box and
blocked depository account maintained by the Borrower or any Guarantor for the
collection of Receivables and other proceeds of Collateral.
8.09. Maintenance of PropertyMaintenance of Property. The
Borrower shall, and shall cause each of the Material Subsidiaries to, maintain,
in all material respects, in good, safe and insurable condition and repair,
ordinary wear and tear excepted, all of its respective owned and leased Property
which is material to the continued operations of the owner or lessee thereof.
8.10. Security Clearances. The Borrower shall, and shall cause
each of its Subsidiaries to, apply for and maintain all facility security
clearances required of the Borrower or any of its Subsidiaries under all
Requirements of Law to perform and deliver under any and all Government
Contracts and as otherwise may be necessary to continue to perform the
Borrower's business and such personnel security clearances as are required to
assure continuation of the Borrower's and its Subsidiaries' performance under
Government ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇ Clearances. The Borrower shall, and shall cause
each of its Subsidiaries to, apply for and maintain all facility security
clearances required of the Borrower or any of its Subsidiaries under all
Requirements of Law to perform and deliver under any and all Government
Contracts and as otherwise may be necessary to continue to perform the
Borrower's business and such personnel security clearances as are required to
assure continuation of the Borrower's and its Subsidiaries' performance under
Government Contracts.
8.11. Future Assurances. Upon the request of the Agent, the
Borrower shall execute and deliver to the Agent, for the benefit of the Holders,
such other agreements, documents, and instruments which the Agent deems
necessary or desirable, in form and substance satisfactory to the Agent, to
enable the Agent to perfect, or maintain perfected, Liens in the Collateral;
provided, however, that the foregoing shall only pertain to requests with
respect to vehicle titles made after the occurrence and during the continuance
of an Event of Default.
8.12. Securitization Replacement. The Borrower shall provide
the Agent and the Lenders by December 15, 1996 with assurances satisfactory to
the Agent and the Lenders (e.g. by way of a highly confident letter satisfactory
to the Agent and the Lenders, Borrower having investors therein "circled", or
Borrower's having obtained a commitment therefor) that the facilities provided
under the Existing Receivables Purchase Documents will be replaced by a facility
having terms reasonably acceptable to the Agent and the Borrower, which
replacement facility will close by January 31, 1997.
ARTICLE IX
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the
following covenants so long as any Commitments are outstanding and thereafter
until payment in full of all of the Obligations (other than indemnities not yet
due), unless the Requisite Lenders shall otherwise give prior written consent:
9.01. IndebtednessIndebtedness. The Borrower shall not and
shall not permit any of its Subsidiaries to directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness for trade payables, wages and other accrued
expenses incurred in the ordinary course of business;
(c) the Transaction Costs which have not been paid on or as
of the Closing Date;
(d) Permitted Existing Indebtedness and any extensions,
renewals, refundings or replacements thereof; provided that any such
extension, renewal, refunding or replacement is in an aggregate
principal amount not greater than the principal amount of, and is on
terms no less favorable to the Borrower or its Subsidiary than the
terms of, the Permitted Existing Indebtedness so extended, renewed,
refunded or replaced;
(e) Permitted Existing Capital Leases;
(f) to the extent permitted by Article X, and in any event in
an aggregate amount not to exceed $5,000,000 outstanding at any time,
Indebtedness with respect Capital Leases and purchase money
Indebtedness incurred to finance the acquisition or sale and leaseback
of fixed assets;
(g) Indebtedness in respect of taxes, assessments,
governmental charges and Claims for labor, materials or supplies, to
the extent that payment thereof is not required pursuant to Section
8.04;
(h) Indebtedness with respect to contingent liabilities
incurred in the ordinary course of business of the Borrower and its
Subsidiaries;
(i) Indebtedness arising from intercompany loans (i) from the
Borrower to any of its Subsidiaries which is a Guarantor or (ii) from
any such Subsidiary to the Borrower or any other such Subsidiary;
(j) Indebtedness arising from intercompany loans from the
Borrower or any Guarantor to any Subsidiaries of the Borrower which are
not Guarantors in an amount outstanding at any given time not to exceed
one percent (1.0%) of the Borrower's consolidated revenue for the then
immediately preceding twelve month period;
(k) Indebtedness arising from intercompany loans from any
Subsidiary of the Borrower which is not a Guarantor to the Borrower or
any Subsidiary of the Borrower which is a Guarantor in an amount
outstanding at any given time not to exceed one-half of one percent
(0.50%) of the Borrower's consolidated revenue for the then immediately
preceding twelve month period;
(l) Indebtedness arising from intercompany loans from any
Subsidiary of the Borrower which is not a Guarantor to any other
Subsidiary of the Borrower which is not a Guarantor;
(m) Indebtedness in respect of profit sharing plans to the
extent permitted under Section 9.04;
(n) Indebtedness with respect to warranties and indemnities
made under (i) any agreements for asset sales permitted under Section
9.02, (ii) Contractual Obligations of the Borrower or any Subsidiary of
the Borrower entered into in the ordinary course of its business, and
(iii) Contractual Obligations of the Borrower and its Subsidiaries
identified on Schedule 9.01-N attached hereto;
(o) Indebtedness under appeal bonds in connection with
judgments which do not result in an Event of Default or a Potential
Event of Default or any other breach hereunder, provided that the
aggregate amount of all such Indebtedness does not exceed $5,000,000;
(p) Indebtedness in respect of Existing Letters of Credit
until the expiry date therefor set forth on Schedule 1.01.1;
(q) the Computran Indebtedness;
(r) Indebtedness under the 1997 Receivables Purchase
Documents;
(s) Indebtedness in respect of Letters of Credit issued by
Persons other than the Issuing Banks from and after March 14, 1999; and
(t) in addition to the Indebtedness permitted by clauses (a)
through (s) above, other Indebtedness in an aggregate amount not to
exceed $10,000,000 at any time outstanding.
For purposes of this Section 9.01, the amount of Indebtedness of any Subsidiary
of the Borrower which is not a Wholly-Owned Subsidiary shall be deemed to be
equal to that percentage of the Indebtedness of such Subsidiary which equals the
equity ownership percentage of the equity Securities of such Subsidiary held by
the Borrower or by a Wholly-Owned Subsidiary.
9.02. Sales of AssetsSales of Assets. The Borrower shall not
and shall not permit any of its Subsidiaries to sell, assign, transfer, lease,
convey or otherwise dispose of any Property, whether now owned or hereafter
acquired, or any income or profits therefrom, or enter into any agreement to do
so, except:
(a) the sales of accounts receivable in accordance with the
provisions of the Receivable Purchase Documents;
(b) the transfer of Property (i) from a Subsidiary of the
Borrower to the Borrower or (ii) from a Subsidiary of the Borrower to
another Subsidiary of the Borrower, provided that the Subsidiary
transferee is a Guarantor;
(c) the transfer of Property having a book value not to exceed
$750,000 in the aggregate from the Borrower or a Subsidiary of the
Borrower which is a Guarantor to a Subsidiary of the Borrower which is
not a Guarantor;
(d) the sale of Inventory in the ordinary course of Borrower's
and its Subsidiaries' respective businesses and the sale, trade-in or
other disposition of surplus, obsolete, or worn out Equipment in the
ordinary course of Borrower's and its Subsidiaries' respective
businesses and consistent with past practices;
(e) the sale of any Real Property owned by the Borrower or any
Subsidiary of the Borrower;
(f) the sale of Investments in Cash Equivalents and cash
equivalents permitted pursuant to Section 9.04(a) and (b);
(g) the sales permitted pursuant to Section 9.10; and
(h) other sales or transfers of Property having a fair market
value not to exceed $1,000,000 in the aggregate per Fiscal Year of the
Borrower; provided that,to the extent the fair market value of Property
sold or transferred under this clause (h) in any given Fiscal Year of
the Borrower is less than $1,000,000, the amount equal to $1,000,000
minus the fair market value of such Property for such Fiscal Year shall
be carried over to succeeding Fiscal Years.
9.03. LiensLiens. The Borrower shall not and shall not permit
any of its Subsidiaries to directly or indirectly create, incur, assume or
permit to exist any Lien on or with respect to any of their respective Property
or assets except:
(a) Liens created pursuant to (i) the Receivables Purchase
Documents as in effect on the Closing Date, (ii) the Loan Documents,
and (iii) agreements executed and delivered in connection with the 1997
Receivables Purchase Documents;
(b) Permitted Existing Liens;
(c) Customary Permitted Liens;
(d) purchase money Liens (including the interest of a lessor
under a Capital Lease or an Operating Lease having substantially the
same economic effect and Liens to which any Property is subject at the
time of the Borrower's or its Subsidiary's purchase thereof) securing
an amount not to exceed $5,000,000 in the aggregate at any time or from
time to time, provided that such Liens shall not apply to any Property
of the Borrower or its Subsidiaries other than that purchased or
subject to such Capital Lease and such purchase money Indebtedness
shall not be in addition to the amounts otherwise permitted by Section
9.01(f);
(e) extensions, renewals, refundings and replacements of Liens
referred to in clauses (a) and (b) of this Section 9.03; provided that
any such extension, renewal, refunding or replacement of a Lien
referred to in clause (b) shall be limited to the Property covered by
the Lien extended, renewed, refunded or replaced and that the
obligations secured by any such extension, renewal, refunding or
replacement Lien shall be in an amount not greater than the amount of
the obligations then secured by the Lien extended, renewed, refunded or
replaced; and
(f) Liens on cash or cash equivalents securing Letters of
Credit permitted under Section 9.01(s).
9.04. InvestmentsInvestments. The Borrower shall not and
shall not permit any of its Subsidiaries to directly or indirectly make
or own any Investment except:
(a) Investments in Cash Equivalents and, so long as any
Existing Letters of Credit are outstanding for which such cash
equivalents are held as cash collateral, cash equivalents maintained in
investment and other accounts at Crestar Bank in Alexandria, Virginia;
(b) Investments in cash equivalents held as cash collateral
for Letters of Credit permitted under Section 9.01(s);
(c) Permitted Existing Investments;
(d) Investments in the form of advances to employees in the
ordinary course of business for moving, relocation and travel expenses;
and other loans to employees for any lawful purpose, provided that (i)
each loan permitted under this clause (d) shall be evidenced by a
promissory note and (ii) the aggregate principal amount of all such
advances and loans at any time outstanding shall not exceed $2,500,000;
(e) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(f) Investments which, if they were in the form of
intercompany loans, would be permitted under Sections 9.01(i), (j), (k)
or (l), and which, if aggregated with intercompany loans described in
such clauses would not exceed the limitations as to amount set forth
therein;
(g) Investments in Persons which are not Subsidiaries of the
Borrower or a Wholly-Owned Subsidiary; provided that such Person is
engaged in a business substantially similar to that of the Borrower and
its Subsidiaries as of the Closing Date;
(h) Investments made in connection with Permitted
Acquisitions;
(i) Investments in any Person(s) engaged in a business which
is not substantially similar to that of the Borrower and its
Subsidiaries as of the Closing Date in an aggregate amount not to
exceed $5,000,000 at any time;
(j) Investments in instruments required to be posted by the
Borrower and its Subsidiaries in connection with their obtaining
insurance coverage; and
(k) to the extent they constitute Investments, contributions
to and payments of benefits under any Plan in existence as of the
Closing Date as required by the benefit commitments in such Plan as of
the Closing Date.
9.05. Accommodation ObligationsAccommodation Obligations.
The Borrower shall not and shall not permit any of its Subsidiaries to
directly or indirectly create or become or be liable with respect to
any Accommodation Obligation, except:
(a) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of its
business;
(b) Permitted Existing Accommodation Obligations and any
extensions, renewals or replacements thereof, provided that the
aggregate Indebtedness under any such extension, renewal or replacement
is not greater than the Indebtedness under, and shall be on terms no
less favorable to the Borrower or such Subsidiary than the terms of,
the Permitted Existing Accommodation Obligation so extended, renewed or
replaced;
(c) Accommodation Obligations (i) arising under the Loan
Documents or Letters of Credit or (ii) permitted under Section 9.10;
(d) Accommodation Obligations arising with respect to
performance guarantees by the Borrower of Contractual Obligations of
its Subsidiaries;
(e) Accommodation Obligations arising in the ordinary course
of the Borrower's business with respect to payment guarantees by the
Borrower of the Contractual Obligations of employees of the Borrower or
a Subsidiary of the Borrower or of any Person in which the Borrower or
any of its Subsidiaries holds a minimum of ten percent (10%) of the
equity Securities thereof; and
(f) in addition to the Accommodation Obligations permitted by
clauses (a) through (e) above, other unsecured Accommodation
Obligations in an aggregate amount not to exceed $2,000,000 at any time
outstanding.
9.06. Restricted Junior PaymentsRestricted Junior Payments.
The Borrower shall not and shall not permit any of its Subsidiaries to declare
or make any Restricted Junior Payment, except:
(a) dividends or distributions to the Borrower on the Capital
Stock of any of its Subsidiaries or to any of the Borrower's
Subsidiaries from any other Subsidiary of the Borrower existing on the
date of this Agreement or acquired by Investment(s) made as permitted
in Section 9.04(g); provided, however, that Subsidiaries of the
Borrower which are not Wholly-Owned Subsidiaries may pay dividends and
may make distributions to the extent the Borrower or Subsidiary of the
Borrower which is a holder of the Capital Stock with respect to which
such dividend or distribution is paid or made receives its pro rata
share thereof;
(b) repurchase by the Borrower of its Capital Stock pursuant
to the terms of the ESOP Documents and the Restricted Stock Plan or any
other plan identified on Schedule 6.01-G;
(c) repurchases under the New Stockholders Agreement by the
Borrower of its Capital Stock from employees who are resigning or
retiring in an aggregate amount not to exceed $750,000 per Fiscal Year
of the Borrower;
(d) repurchases of Capital Stock of the Borrower distributed
from non-qualified deferred compensation accounts in order to provide
cash for payment of payroll and withholding taxes;
(e) repurchase of approximately 42,664 shares of Borrower's
Capital Stock held by ▇▇▇▇▇ ▇.▇▇▇▇▇▇;
(f) repurchase of 125,714 shares of Borrower's Capital Stock
held by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and subject to existing put rights;
(g) repurchase or escheat of approximately 51,258 shares of
pre-merger common stock of the Borrower subject to rights under that
certain Amended and Restated Merger Agreement dated as of January 24,
1988 between Borrower and DME Holdings, Inc., et al;
(h) repurchase or escheat of approximately 7,397 shares of
Borrower's called, but unsurrendered, Class A Preferred Stock;
(i) repurchases and/or redemptions of Borrower's Capital Stock
not otherwise permitted under this Section 9.06 so long as, on the date
of such repurchase and/or redemption and after giving effect thereto,
Borrower's Fixed Charge Coverage Ratio is at least 1.25 : 1 and the
Revolving Credit Availability is at least $10,000,000;
provided, however, the Restricted Junior Payments described in clauses (a), (b)
and (c) above (other than pursuant to the terms of the ESOP Documents) shall not
be permitted after the occurrence and during the continuance of an Event of
Default or a Potential Event of Default or if an Event of Default or a Potential
Event of Default would result therefrom and provided, further, that the
restrictions set forth in clause (i) above shall not apply to repurchases and/or
redemptions arising with respect to the exercise of put rights under the ESOP.
9.07. Conduct of BusinessConduct of Business. The Borrower
shall not and shall not permit any of its Subsidiaries to engage in any business
other than (a) the businesses engaged in by the Borrower and its Subsidiaries on
the date hereof and (b) any business or activities which are substantially
similar, related or incidental thereto.
9.08. Transactions with Shareholders and
AffiliatesTransactions with Shareholders and Affiliates. The Borrower shall not
and shall not permit any of its Subsidiaries to directly or indirectly enter
into or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of more than five percent (5%) of any class
of equity Securities of the Borrower (other than the DynCorp Employee Stock
Ownership Trust established pursuant to the Trust Agreement with respect to
transactions contemplated by the ESOP Documents or SARP Documents or holders who
are trustees or beneficiaries under any Plan), or with any other Affiliate of
the Borrower which is not its Subsidiary, on terms that are less favorable to
the Borrower or such Subsidiary of the Borrower, as applicable, than those that
might be obtained in an arm's length transaction at the time from Persons who
are not such a holder or Affiliate. Nothing contained in this Section 9.08 shall
prohibit (a) any transaction expressly permitted by Sections 9.05, 9.06, and
9.12; (b) increases in compensation and benefits for officers and employees of
the Borrower or any of its Subsidiaries which are customary in the industry or
consistent with the past business practice of the Borrower or such Subsidiary;
(c) payment of customary directors' fees and indemnities; or (d) performance of
any obligations arising under the Transaction Documents.
9.09. Restriction on Fundamental ChangesRestriction on
Fundamental Changes. The Borrower shall not and shall not permit any of its
Subsidiaries to enter into any merger or consolidation, or liquidate, wind-up or
dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of such Person's business or Property, whether now or
hereafter acquired, except (a) in connection with transactions permitted under
Section 9.02, (b) in connection with the merger of any Guarantor with and into
any other Guarantor, (c) in connection with the merger of any Subsidiary of the
Borrower which is not a Material Subsidiary with and into any other Subsidiary
of the Borrower and/or (d) the dissolution of Subsidiaries of the Borrower
identified on Schedule 6.01-C as inactive Subsidiaries of the Borrower or the
dissolution of Subsidiaries of the Borrower which are not Material Subsidiaries.
9.10. Sales and LeasebacksSales and Leasebacks. Except with
respect to the Property identified on Schedule 9.10 attached hereto and as
otherwise permitted by Sections 9.01(f), (h) and (o) and Section 9.05, the
Borrower shall not or permit any of its Subsidiaries to become liable, directly,
by assumption or by Accommodation Obligation, with respect to any lease, whether
an Operating Lease or a Capital Lease, of any Property (whether real or personal
or mixed) which it or one of its Subsidiaries (a) sold or transferred or is to
sell or transfer to any other Person, or (b) intends to use for substantially
the same purposes as any other Property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person, in either
instance, in connection with such lease.
9.11. Margin Regulations; Securities LawsMargin Regulations;
Securities Laws. The Borrower shall not or permit any of its Subsidiaries to
use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
9.12. ERISAERISA. The Borrower shall not:
(a) knowingly engage, or permit any of its Subsidiaries to
engage, in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or
class exemption is not available or a private exemption has not been
previously obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan maintained by the Borrower or any of
its Subsidiaries, whether or not waived;
(c) fail, or permit any ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any
waived funding deficiency to any Benefit Plan;
(d) terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any liability of Borrower or any
ERISA Affiliate under Title IV of ERISA;
(e) fail, or permit any ERISA Affiliate to fail, to pay any
required installment or any other payment required under Section 412 of
the Internal Revenue Code on or before the due date for such
installment or other payment; or
(f) amend, or permit any ERISA Affiliate to amend, a Benefit
Plan resulting in an increase in current liability for the plan year
such that the Borrower or any ERISA Affiliate is required to provide
security to such Plan under Section 401(a)(29) of the Internal Revenue
Code
if such event results, either singly or in the aggregate, after taking into
account all other such events and any liabilities associated therewith, in a
material liability for the payment of money.
9.13. Organizational Documents; ESOPOrganizational Documents;
ESOP. The Borrower shall not and shall not permit any Subsidiary the Capital
Stock of which is part of the Collateral to amend, modify or otherwise change
any of the terms or provisions in any of (a) their respective Organizational
Documents as in effect on the Closing Date, except amendments (i) to effect a
change of name (A) of the Borrower as permitted by the Borrower Security
Agreement or (B) of a Subsidiary of the Borrower, written notice of which change
of name the Borrower shall have provided the Agent within sixty (60) days prior
to the effective date of any such name change, (ii) with respect to mergers or
dissolutions permitted by Section 9.09 and (iii) to the Borrower's
Organizational Documents that would not result in a Material Adverse Effect, (b)
the Existing Receivables Purchase Documents as in effect on the Closing Date,
(c) the 1997 Receivables Purchase Documents as in effect on the date executed
and delivered as provided in Section 8.12, or (d) the ESOP Documents or SARP
Documents as in effect on the Closing Date, except with respect to terms and
conditions the amendment of which would not result in any material adverse
financial consequences to the Borrower.
9.14. Domestic Bank AccountsDomestic Bank Accounts. The
Borrower shall not and shall not permit any Wholly-Owned Subsidiaries (other
than Foreign Subsidiaries, which shall be subject to the provisions of Section
9.16 below) to establish or maintain any deposit account other than those
identified as existing on the Closing Date and disclosed on Schedule 9.14
attached hereto (as the same may be supplemented from time to time in writing);
such deposit accounts established and maintained by Subsidiaries of the Borrower
which are not Foreign Subsidiaries to be used solely for "▇▇▇▇▇ cash" purposes
and to receive deposits solely from checks drawn on, or wire transfers of funds
in, the Cash Management Account; and the aggregate amount on deposit in all such
accounts (other than accounts of Dyn Funding established and maintained under
and pursuant to the Receivables Purchase Documents) not to exceed $3,250,000 at
any given time; provided, however, that in the event any Subsidiary which is not
a Foreign Subsidiary establishes any deposit account and maintains the same in a
manner not in compliance with the foregoing requirements, the Borrower shall (a)
within fifteen (15) days after any Financial Officer's learning thereof, close,
or cause to be closed, such account and transfer, or cause to be transferred,
all deposits therein to an account permitted to be maintained under the terms of
this Agreement or (b) within seven (7) days after any Financial Officer's
learning thereof, transfer, or cause to be transferred, an amount equal to the
excess over $3,250,000 on deposit in such accounts to an account permitted to be
maintained under the terms of this Agreement.
9.15. Crestar Account. Notwithstanding anything in Section
9.14 to the contrary, the Borrower shall be permitted to maintain the Crestar
Account subject to the terms of a deposit account agreement in the form attached
hereto as Exhibit J; provided, however, that the Borrower shall not maintain
deposits in the Crestar Account in excess of $1,000,000 as of the close of
business on any two (2) consecutive Business Days.
9.16. Foreign Bank Accounts. The Borrower shall not, and shall
not permit any Subsidiary of the Borrower to, establish or maintain any deposit
account outside the United States other than those identified on Schedule 9.14
as a "foreign account" and shall not permit the deposit of monies in any such
"foreign account" except for deposit payments, payments received from operations
of the Borrower or such Subsidiary in a foreign country and transfers necessary
to maintain such foreign operations and otherwise not prohibited under the terms
of this Agreement.
9.17. Fiscal YearFiscal Year. The Borrower shall not and shall
not permit any of its Material Subsidiaries to change its Fiscal Year for
accounting or tax purposes from a period consisting of the 12-month period
ending on December 31 of each calendar year or any Fiscal Month or Fiscal
Quarter.
9.18. Cash Payments to ESOP and SARP. The Borrower shall not
make any payments in cash to the ESOP or the SARP unless, on the date of such
payment and after giving effect thereto, the ESOP Fixed Charge Coverage Ratio is
at least 1.1 : 1 and the Revolving Credit Availability is at least $5,000,000;
provided, however, that the foregoing prohibition shall not apply to (i)
payments to the SARP from amounts withheld from salaries, wages, or bonuses
otherwise payable to employees, (ii) cash contributions to the ESOP to be used
by the ESOP to repay loans, including interest accrued thereon, from the
Borrower, the proceeds of which were used to purchase Capital Stock of the
Borrower from the Borrower, (iii) the company matching portion of contributions
to the SARP, where participants' investments are made in funds other than a fund
investing solely in the Capital Stock of the Borrower, and (iv) payments made to
participants as a result of the exercise of put rights under the ESOP Documents
or SARP Documents.
ARTICLE X
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities not yet due):
10.01. Interest Coverage Ratio. The Borrower shall maintain an
Interest Coverage Ratio of at least the ratio set forth below, as determined as
of the last day of each Fiscal Quarter of the Borrower set forth below, (a) in
the case of Fiscal Quarters ending June 27, 1996, September 26, 1996, and
December 31, 1996, on a cumulative basis for the period commencing on January 1,
1996 and ending on such date, and (b) for all other periods, for the four Fiscal
Quarter period then ending:
Fiscal Quarter Ending Ratio
June 27, 1996 2.75 to 1.00
September 26, 1996 2.75 to 1.00
December 31, 1996 3.00 to 1.00
March 27, 1997 3.25 to 1.00
June 26, 1997 3.50 to 1.00
and each Fiscal
Quarter of the
Borrower thereafter
10.02. Fixed Charge Coverage Ratio. The Borrower shall
maintain a Fixed Charge Coverage Ratio of at least 1.05 to 1.00, as determined
as of the last day of each (a) Fiscal Quarter of the Borrower ending June 27,
1996, September 26, 1996, and December 31, 1996 on a cumulative basis for the
period commencing on January 1, 1996 and ending on such date, and (b) other
Fiscal Quarter of the Borrower, for the four Fiscal Quarter period then ending.
10.03. Capital Expenditures. The Borrower shall not make
Capital Expenditures during any Fiscal Year (commencing with its Fiscal Year
beginning on January 1, 1996) in excess of $7,000,000 in the aggregate.
10.04. Tangible Net Worth. The Borrower shall, at all times
during the Fiscal Quarters set forth below, maintain a consolidated tangible net
worth (plus intangible assets recorded in connection with Permitted
Acquisitions) of no less than the amount set forth below opposite the respective
Fiscal Quarter:
Fiscal Quarter Ending Minimum Tangible Net Worth
March 28, 1996 ($28,000,000)
June 27, 1996 (27,000,000)
September 26, 1996 (23,000,000)
December 31, 1996 (18,000,000)
March 27, 1997 (18,000,000)
June 26, 1997 (18,000,000)
September 25, 1997 (15,000,000)
December 31, 1997 (10,000,000)
March 26, 1998 (9,000,000)
June 26, 1998 (8,000,000)
September 24, 1998 (5,000,000)
December 31, 1998 0
March 25, 1999 1,000,000
June 24, 1999 2,000,000
September 23, 1999 4,000,000
December 31, 1999 8,000,000
10.05. Funded Debt/EBITDA. The Borrower shall maintain a ratio
of the average of Borrower's Funded Debt as of the last day of each Fiscal Month
in the Fiscal-Quarter ending on the respective dates set forth below to EBITDA
for the four-Fiscal-Quarter period then ended of not more than the ratio set
forth opposite such Fiscal Quarter:
Fiscal Quarter Ending Ratio
March 28, 1996 4.50 to 1.00
June 27, 1996 4.50 to 1.00
September 26, 1996 4.50 to 1.00
December 31, 1996 4.25 to 1.00
March 27, 1997 4.25 to 1.00
June 26, 1997 4.00 to 1.00
and each Fiscal Quarter
ending thereafter
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. Events of DefaultEvents of Default. Each of the
following occurrences shall constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail
to pay (i) any principal of any Loan or Reimbursement Obligation when due or
(ii) any of the Obligations for fees or interest described in Article IV within
three (3) Business Days after the date such Obligations are due or (iii) any of
the other Obligations within thirty (30) days after the date such Obligations
are due.
(b) Breach of Certain Covenants. The Borrower shall fail duly
and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 7.02, 8.01, 8.02, 8.03, 8.04, 8.06, 8.11,
and 8.12, Article IX or Article X.
(c) Breach of Representation or Warranty. Any representation
or warranty made or deemed made by the Borrower to the Agent or any Lender
herein or by the Borrower or any Guarantor in any of the other Loan Documents or
in any statement or certificate at any time given by any such Person pursuant to
any of the Loan Documents shall be false or misleading in any material respect
on the date as of which made (or deemed made).
(d) Other Defaults. The Borrower shall default in the
performance of or compliance with any term contained in this Agreement (other
than as identified in clauses (a), (b) or (c) of this Section 11.01) or any
default or event of default shall occur under any of the other Loan Documents,
and such default or event of default shall continue for thirty (30) days after
the date on which notice of the occurrence thereof is given to or by the Agent.
(e) Default as to Other Indebtedness; Operating Leases. The
Borrower or Material Subsidiaries shall fail to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise, but after giving effect to any applicable cure period) with respect
to any Indebtedness (other than an Obligation) of the Borrower and the Material
Subsidiaries aggregating $5,000,000 or more. Any breach, default or event of
default shall occur, or any other condition shall exist under any instrument,
agreement or indenture pertaining to any Funded Debt of the Borrower or any
Material Subsidiary, if the effect thereof is to cause an acceleration,
mandatory redemption or other required repurchase of such Funded Debt, or permit
the holder(s) of such Funded Debt to accelerate the maturity of any such Funded
Debt or require a redemption or other repurchase of such Funded Debt; or any
such Funded Debt shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or Material Subsidiaries (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof. Any breach,
default or event of default on the part of the Borrower or Material Subsidiaries
shall occur under any Operating Lease to which the Borrower or any Material
Subsidiary is a party which breach, default or event of default shall materially
adversely affect the rights of the Borrower or any Material Subsidiary with
respect to the Property subject to any Operating Lease on which the remaining
payments exceed $2,000,000.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i)
An involuntary case shall be commenced against the Borrower or any of its
Subsidiaries and the petition shall not be dismissed, stayed, bonded or
discharged within sixty (60) days after commencement of the case; or a court
having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Borrower or any of its Subsidiaries in an involuntary case, under
any applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Borrower or any of its
Subsidiaries or over all or a substantial part of the Property of the Borrower
or any of its Subsidiaries shall be entered; or an interim receiver, trustee or
other custodian of the Borrower or any of its Subsidiaries or of all or a
substantial part of the Property of the Borrower or any of its Subsidiaries
shall be appointed or a warrant of attachment, execution or similar process
against any substantial part of the Property of the Borrower or any of its
Subsidiaries shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within sixty (60) days after entry, appointment or
issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Borrower or any of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Borrower or any of its Subsidiaries shall make any assignment
for the benefit of creditors or shall be unable or fail, or admit in writing its
inability, to pay its debts as such debts become due; or the board of directors
(or equivalent) of the Borrower or any of its Subsidiaries (or any committee
thereof) adopts any resolution or otherwise authorizes any action to approve any
of the foregoing.
(h) Dissolution. Any order, judgment or decree shall be
entered against the Borrower or any of its Subsidiaries decreeing its
involuntary dissolution or split up and such order shall remain undischarged and
unstayed for a period in excess of sixty (60) days; or the Borrower or any of
its Subsidiaries shall otherwise dissolve, be dissolved, or cease to exist
except as specifically permitted by this Agreement.
(i) Loan Documents; Failure of Security. At any time, for any
reason, (i) any Loan Document ceases to be in full force and effect or the
Borrower or Guarantor party thereto seeks to repudiate its obligations
thereunder and the Liens intended to be created thereby are, or the Borrower
seeks to render such Liens, invalid or unperfected, or (ii) Liens in favor of
the Agent for the benefit of the Holders contemplated by the Loan Documents
shall, at any time, for any reason, be invalidated or otherwise cease to be in
full force and effect, or such Liens shall be subordinated or shall not have the
priority contemplated by this Agreement or the Loan Documents, other than as a
result of the actions or failure to act on the part of the Agent or any Lender.
(j) Judgments and Attachments. (i) Any money judgment (other
than a money judgment covered by insurance; provided that no Responsible Officer
has received any written notice from the applicable insurer that it has denied
coverage), writ or warrant of attachment, or similar process against the
Borrower or any of its Subsidiaries or any of their respective assets involving
in any case an amount in excess of $250,000 is entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of the lesser of (A)
sixty (60) days, (B) such shorter period required by any applicable Requirement
of Law, or (C) five (5) days prior to the date of any proposed sale thereunder;
provided, however, if any such judgment, writ or warrant of attachment or
similar process is in excess of $5,000,000, the entry thereof shall immediately
constitute an Event of Default hereunder.
(ii) A federal tax Lien is filed against the Borrower or any
of its Property which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Agent within forty-five (45) days after the
filing thereof or the date upon which the Agent receives actual knowledge of the
filing thereof for an amount which, either separately or when aggregated with
the amount of any judgments described in clause (i) above and/or the amount of
any Environmental Lien Claims described in clause (iii) below, equals or exceeds
$5,000,000.
(iii) An Environmental Lien is filed against any Property of
the Borrower or any Material Subsidiary with respect to Claims in an amount
which, when aggregated with the amount of judgments set forth in clause (i)
above and/or the federal tax Lien Claims described in clause (ii) above, equals
or exceeds $5,000,000.
(k) Termination Event. Any Termination Event occurs which
could reasonably be expected to subject either the Borrower or any ERISA
Affiliate to liability in excess of $1,000,000.
(l) Waiver Application. The plan administrator of any Benefit
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Internal Revenue Code and the Agent
believes that the substantial business hardship upon which the application for
the waiver is based could subject either the Borrower or any ERISA Affiliate to
an obligation to pay more than $1,000,000.
(m) Change in Control. A Change of Control shall occur.
(n) Material Adverse Effect. An event shall occur which
results in a Material Adverse Effect.
(o) Receivables Purchase Defaults. Any "Event of Default" (as
defined in the Servicing Agreement) shall occur under the Servicing Agreement;
any "Event of Default" (as defined in the Indenture) shall occur under the
Indenture or any mandatory prepayment shall be required to be made pursuant to
the terms of the Indenture; or any "Termination Event" (as defined in the
Receivables Purchase Agreement) shall occur under the Receivables Purchase
Agreement.
Notwithstanding anything in clauses (f), (g), or (h) above to the contrary, no
Event of Default shall be deemed to have occurred in the event an involuntary
case under any applicable bankruptcy, insolvency or other similar law is
commenced against any of the Subsidiaries of the Borrower identified on Schedule
6.01-C as inactive Subsidiaries of the Borrower (the "Inactive Subsidiaries"),
any Inactive Subsidiary commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law, or any order, judgment or decree
shall be entered against any Inactive Subsidiary decreeing its involuntary
dissolution or split up.
An Event of Default shall be deemed "continuing" until cured
or waived in writing in accordance with Section 14.07.
11.02. Rights and RemediesRights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any
Event of Default described in Sections 11.01(f), (g) or (h) as applied to the
Borrower or any Material Subsidiary, the Lenders' respective obligations to make
Loans under the Revolving Credit Commitments shall automatically and immediately
terminate and the unpaid principal amount of, and any and all accrued interest
on, the Obligations and all accrued fees shall automatically become immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower; and
upon the occurrence and during the continuance of any other Event of Default,
the Agent shall at the request, or may with the consent, of the Requisite
Lenders, by written notice to the Borrower, (i) declare that the Lenders'
respective obligations to make Loans under the Revolving Credit Commitments are
terminated, whereupon such obligation of each Lender to make any Loan hereunder
shall immediately terminate, and/or (ii) declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Obligations to be, and the
same shall thereupon be, immediately due and payable, without (except as
specifically set forth herein) presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the Borrower.
(b) Rescission. If at any time after termination of the
Lenders' obligations to make Loans under the Revolving Credit Commitments and/or
acceleration of the maturity of the Loans, the Borrower shall pay all arrears of
interest and all payments on account of principal of the Loans which shall have
become due otherwise than by acceleration (with interest on principal and, to
the extent permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Potential Events of Default (other than
nonpayment of principal of and accrued interest on the Loans due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
Section 14.07, then upon the written consent of the Requisite Lenders and
written notice to the Borrower, the termination of Lenders' respective
obligations to make Loans under the Revolving Credit Commitments and/or the
aforesaid acceleration and its consequences may be rescinded and annulled; but
such action shall not affect any subsequent Event of Default or Potential Event
of Default or impair any right or remedy consequent thereon. The provisions of
the preceding sentence are intended merely to bind the Lenders to a decision
which may be made at the election of the Requisite Lenders; they are not
intended to benefit the Borrower and do not give the Borrower the right to
require the Lenders to rescind or annul any termination of the aforesaid
obligations of the Lenders or any acceleration hereunder, even if the conditions
set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event
the Borrower or any Guarantor fails to perform, observe or discharge any of
their respective obligations or liabilities under this Agreement or any other
Loan Document, any remedy of law may prove to be inadequate relief to the Agent
and the Lenders; therefore, the Borrower agrees that the Agent and the Lenders
shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
ARTICLE XII
THE AGENT
12.01. AppointmentAppointment. (a) Each Lender and Issuing
Bank hereby designates and appoints Citicorp as the Agent of such Lender or
Issuing Bank under this Agreement, and each Lender and Issuing Bank hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and the Loan Documents and to exercise such powers
as are set forth herein or therein together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such on the express
conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the
benefit of the Agent, the Lenders and the Issuing Banks, and neither the
Borrower nor any Subsidiary of the Borrower shall have any rights to rely on or
enforce any of the provisions hereof (other than as expressly set forth in
Section 12.07). In performing its functions and duties under this Agreement, the
Agent shall act solely as agent of the Lenders and Issuing Banks and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency, trustee or fiduciary with or for the Borrower or any Affiliate of the
Borrower. The Agent may perform any of its duties hereunder, or under the other
Loan Documents, by or through its agents or employees.
12.02. Nature of DutiesNature of Duties. The Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement or in the Loan Documents. The duties of the Agent shall be mechanical
and administrative in nature. The Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Holder. Nothing in this
Agreement or any of the Loan Documents, expressed or implied, is intended to or
shall be construed to impose upon the Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. Each Lender and Issuing Bank shall make its own independent
investigation of the financial condition and affairs of the Borrower and
Affiliates in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the creditworthiness of the
Borrower and Guarantor initially and on a continuing basis, and the Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Holder with any credit or other information with respect thereto
(except for reports required to be delivered by the Agent under the terms of
this Agreement). If the Agent seeks the consent or approval of the Lenders or
Issuing Banks to the taking or refraining from taking of any action hereunder,
the Agent shall send notice thereof to each Lender and Issuing Bank. The Agent
shall promptly notify each Lender and Issuing Bank at any time that the Lenders
so required hereunder have instructed the Agent to act or refrain from acting
pursuant hereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes or any
amount payable under any provision of Article IV when due) or the other Loan
Documents, the Agent shall not be required to exercise any discretion or take
any action. Notwithstanding the foregoing, the Agent shall be required to act or
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (unless the
instructions or consent of all of the Lenders is required hereunder or
thereunder) and such instructions shall be binding upon all Lenders, Issuing
Banks, and Holders of Notes; provided, however, the Agent shall not be required
to take any action which (i) the Agent reasonably believes will expose it to
personal liability unless the Agent receives an indemnification satisfactory to
it from the Lenders with respect to such action or (ii) is contrary to this
Agreement, the other Loan Documents or applicable law.
12.03. Rights, Exculpation, Etc.Rights, Exculpation, Etc. (a)
Liabilities; Responsibilities. None of the Agent, any Affiliate of the Agent, or
any of their respective officers, directors, employees or agents shall be liable
to any Holder for any action taken or omitted by them hereunder or under any of
the Loan Documents, or in connection therewith, except that no Person shall be
relieved of any liability imposed by law for gross negligence or willful
misconduct. The Agent shall not be liable for any apportionment or distribution
of payments made by it in good faith pursuant to Section 3.02(b), and if any
such apportionment or distribution is subsequently determined to have been made
in error the sole recourse of any Holder to whom payment was due, but not made,
shall be to recover from other Holders any payment in excess of the amount to
which they are determined to have been entitled. The Agent shall not be
responsible to any Holder for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of the Borrower or any of its Affiliates or the
Guarantor. The Agent shall not be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any of the other Loan Documents, or the financial condition of
the Borrower or any of its Affiliates or the Guarantor, or the existence or
possible existence of any Potential Event of Default or Event of Default.
(b) Right to Request Instructions. The Agent may at any time
request instructions from the Lenders and Issuing Banks with respect to any
actions or approvals which by the terms of any of the Loan Documents the Agent
is permitted or required to take or to grant, and the Agent shall be absolutely
entitled to refrain from taking any action or to withhold any approval and shall
not be under any liability whatsoever to any Person for refraining from any
action or withholding any approval under any of the Loan Documents until it
shall have received such instructions from those Lenders from whom the Agent is
required to obtain such instructions for the pertinent matter in accordance with
the Loan Documents. Without limiting the generality of the foregoing, no Holder
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting under the Loan Documents in accordance
with the instructions of the Requisite Lenders or, where required by the express
terms of this Agreement, a greater proportion of the Lenders.
12.04. Reliance. The Agent shall be entitled to rely
upon any written notices, statements, certificates, orders or other documents or
any telephone message believed by it in good faith to be genuine and correct and
to have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it.
12.05. Indemnification. To the extent that the
Agent is required to be reimbursed and indemnified by the Borrower but is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against it in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Agent under the Loan Documents,
in proportion to each Lender's Pro Rata Share. The obligations of the Lenders
under this Section 12.05 shall survive the payment in full of the Loans and all
other Obligations and the termination of this Agreement.
12.06. Citicorp Individually. With respect to its Pro Rata Share of the
Commitments hereunder, if any, and the Loans made by it, if any, Citicorp
shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender. The terms "Lenders" or "Requisite
Lenders" or any similar terms shall, unless the context clearly otherwise
indicates, include Citicorp in its individual capacity as a Lender or one of
the Requisite Lenders. Citicorp and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower or any of its Affiliates as if it were not acting as
the Agent pursuant hereto.
12.07. Successor Agents. (a) Resignation. The Agent may resign from the
performance of all its functions and duties hereunder at any time by giving at
least thirty (30) Business Days' prior written notice to the Borrower and the
Lenders. Such resignation shall take effect upon the acceptance by a
successor Agent of appointment pursuant to this Section 12.07.
(b) Appointment by Requisite Lenders. Upon any such notice of
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent selected from among the Lenders which appointment shall be subject to the
prior written approval of the Borrower (which may not be unreasonably withheld,
and shall not be required upon the occurrence and during the continuance of an
Event of Default).
(c) Appointment by Retiring Agent. If a successor Agent shall
not have been appointed within the thirty (30) Business Day period provided in
clause (a) of this Section 12.07, the retiring Agent, with the consent of the
Borrower (which may not be unreasonably withheld, and shall not be required upon
the occurrence and during the continuance of an Event of Default), shall then
appoint a successor Agent who shall serve as Agent until such time, if any, as
the Requisite Lenders appoint a successor Agent as provided above.
(d) Rights of the Successor and Retiring Agents. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, 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 under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.08. Relations Among LendersRelations Among Lenders. Each
Lender and Issuing Bank agrees (except as provided in Section 14.05) that it
will not take any legal action, nor institute any actions or proceedings,
against the Borrower or any other obligor hereunder or with respect to any
Collateral, without the prior written consent of the Requisite Lenders. Without
limiting the generality of the foregoing, no Lender or Issuing Bank may
accelerate or otherwise enforce its portion of the Obligations, or unilaterally
terminate its Commitments except in accordance with Section 11.02(a).
12.09. Concerning the Collateral and the Loan
DocumentsConcerning the Collateral and the Loan Documents. (a) Protective
Advances. The Agent may from time to time, before or after the occurrence of an
Event of Default, make such disbursements and advances pursuant to the Loan
Documents which the Agent, in its sole discretion, deems necessary or desirable
to preserve or protect the Collateral or any portion thereof or to enhance the
likelihood or maximize the amount of repayment of the Loans and other
Obligations ("Protective Advances"). The Agent shall notify the Borrower and
each Lender in writing of each such Protective Advance, which notice shall
include a description of the purpose of such Protective Advance. The Borrower
agrees to pay the Agent, upon demand, the principal amount of all outstanding
Protective Advances, together with interest thereon at the rate from time to
time applicable to Base Rate Loans from the date of such Protective Advance
until the outstanding principal balance thereof is paid in full. If the Borrower
fails to make payment in respect of any Protective Advance within one (1)
Business Day after the date the Borrower receives written demand therefor from
the Agent, the Agent shall promptly notify each Lender and each Lender agrees
that it shall thereupon make available to the Agent, in Dollars in immediately
available funds, the amount equal to such Lender's Pro Rata Share of such
Protective Advance. If such funds are not made available to the Agent by such
Lender within one (1) Business Day after the Agent's demand therefor, the Agent
will be entitled to recover any such amount from such Lender together with
interest thereon at the Federal Funds Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such Protective Advance shall neither relieve any other Lender of
its obligation hereunder to make available to the Agent such other Lender's Pro
Rata Share of such Protective Advance on the date such payment is to be made nor
increase the obligation of any other Lender to make such payment to the Agent.
All outstanding principal of, and interest on, Protective Advances shall
constitute Obligations secured by the Collateral until paid in full by the
Borrower.
(b) Authority. Each Lender and Issuing Bank authorizes and
directs the Agent to enter into the Loan Documents relating to the Collateral
for the benefit of the Lenders and Issuing Banks. Each Lender and Issuing Bank
agrees that any action taken by the Agent or the Requisite Lenders (or, where
required by the express terms of this Agreement, a greater proportion of the
Lenders) in accordance with the provisions of this Agreement or the other Loan
Documents, and the exercise by the Agent or the Requisite Lenders (or, where so
required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Without limiting the generality
of the foregoing, the Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the Lenders with
respect to all payments and collections arising in connection with this
Agreement and the Loan Documents relating to the Collateral; (ii) execute and
deliver each Loan Document relating to the Collateral and accept delivery of
each such agreement delivered by the Borrower, any of its Subsidiaries or
Guarantor a party thereto; (iii) act as collateral agent for the Lenders for
purposes of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein; provided, however, the Agent
hereby appoints, authorizes and directs the Lenders and Issuing Banks to act as
collateral sub-agent for the Agent, the Lenders and the Issuing Banks for
purposes of the perfection of all security interests and Liens with respect to
the Property at any time in the possession of such Lender or Issuing Bank,
including, without limitation, deposit accounts maintained with, and cash and
Cash Equivalents held by, such Lender or Issuing Bank; (iv) manage, supervise
and otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
liens created or purported to be created by the Loan Documents; and (vi) except
as may be otherwise specifically restricted by the terms of this Agreement or
any other Loan Document, exercise all remedies given to the Agent, the Lenders
or the Issuing Banks with respect to the Collateral under the Loan Documents
relating thereto, applicable law or otherwise.
(c) Release of Collateral; Release of Guarantors. (i)
Each Lender and Issuing Bank hereby directs, in accordance with the terms of
this Agreement, the Agent to release any Lien held by the Agent for the benefit
of the Holders:
(A) against all of the Collateral, upon final and
indefeasible payment in full of the Obligations and termination of
this Agreement;
(B) against any part of the Collateral sold or disposed of
(directly or indirectly) by the Borrower or any of its Subsidiaries, if
such sale or disposition is permitted by Section 9.02 or is otherwise
consented to by the Requisite Lenders, as certified to the Agent by the
Borrower in an Officer's Certificate; and/or
(C) against any part of the Collateral consisting of a
promissory note, upon final and indefeasible payment in full of the
Indebtedness evidenced thereby.
(ii) Each Lender and Issuing Bank hereby directs the Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 12.09(c) promptly upon the effectiveness of any such release.
ARTICLE XIII
YIELD PROTECTION
13.01. TaxesTaxes. (a) Payment of Taxes. Any and all payments
by the Borrower hereunder or under any Note or other document evidencing any
Obligations shall be made, in accordance with Section 3.02, free and clear of
and without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, or levies which arise from the payment or
performance under, or otherwise with respect to, any of the Loan Documents or
the Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender and the Agent, taxes imposed on or measured by net income or
overall gross receipts and capital and franchise taxes imposed on it by (i) the
United States, (ii) the Governmental Authority of the jurisdiction in which such
Lender's Applicable Lending Office is located or any political subdivision
thereof or (iii) the Governmental Authority in which such Person is organized,
managed and controlled or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges and withholdings being
hereinafter referred to as "Taxes"). If the Borrower shall be required by
applicable Requirements of Law to withhold or deduct any Taxes from or in
respect of any sum payable hereunder or under any such Note or document to any
Lender or the Agent, (x) the sum payable to such Lender or the Agent shall be
increased as may be necessary so that after making all required withholding or
deductions (including withholding or deductions applicable to additional sums
payable under this Section 13.01) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) the Borrower shall make such
withholding or deductions, and (z) the Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) Indemnification. The Borrower will indemnify each Lender
and the Agent against, and reimburse each on demand for, the full amount of all
Taxes and all stamp or documentary taxes, excise taxes, ad valorem taxes,
charges and other taxes imposed on the value of the Property, (including,
without limitation, any additional income or franchise taxes resulting
therefrom) incurred or paid by or on behalf of such Lender or the Agent (as the
case may be) by any of their respective Affiliates in connection with the
execution, delivery or registration of the Loan Documents, or from and any
liability (including penalties, interest, and out-of-pocket expenses paid to
third parties) arising therefrom or with respect thereto, whether or not such
Taxes were lawfully payable. A certificate in reasonable detail as to any
additional amount payable to any Person under this Section 13.01 submitted by it
to the Borrower shall, absent manifest error, be final, conclusive and binding
upon all parties hereto. Each Lender agrees, within a reasonable time after
receiving a written request from the Borrower, to provide the Borrower and the
Agent with such certificates as are reasonably required, and take such other
actions as are reasonably necessary to claim such exemptions as such Lender may
be entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
13.01 in respect of any payments under this Agreement or under the Notes.
(c) Receipts. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, it will furnish to the Agent, at its address
referred to in Section 14.08, the original or a certified copy of a receipt
evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to the Borrower and the Agent on the Closing
Date or the date on which such Lender becomes a Lender pursuant to Section 14.01
hereof a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender to the effect that such Lender is eligible to
receive payments hereunder and under the Notes without deduction or withholding
of United States federal income tax (I) under the provisions of an applicable
tax treaty concluded by the United States (in which case the certificate shall
be accompanied by two duly completed copies of IRS Form 1001 (or any successor
or substitute form or forms)), (II) under Sections 1442(c)(1) and 1442(a) of the
Internal Revenue Code (in which case the certificate shall be accompanied by two
duly completed copies of IRS Form 4224 (or any successor or substitute form or
forms)), or (III) due to such Lender's not being a "bank" as such term is used
in Section 881(c)(3)(A) of the Internal Revenue Code (in which case, the
certificate shall be accompanied by two accurate and complete original signed
copies of IRS Form W-8 (or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower and
the Agent from time to time, a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender before or promptly upon
the occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Borrower and the Agent pursuant to this
Section 13.01(d). Each certificate required to be delivered pursuant to this
Section 3.01(d)(ii) shall certify as to one of the following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein but does not
require additional payments pursuant to Section 13.01(a) because it is
entitled to recover the full amount of any such deduction or
withholding from a source other than the Borrower; or
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or withholding
of United States federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a source
other than the Borrower.
Each Lender agrees to deliver to the Borrower and the Agent further duly
completed copies of the above-mentioned IRS forms on or before the earlier of
(x) the date that any such form expires or becomes obsolete or otherwise is
required to be resubmitted as a condition to obtaining an exemption from
withholding from United States federal income tax and (y) fifteen (15) days
after the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender to the Borrower and Agent, unless any change
in treaty, law, regulation, or official interpretation thereof which would
render such form inapplicable or which would prevent the Lender from duly
completing and delivering such form has occurred prior to the date on which any
such delivery would otherwise be required and the Lender promptly advises the
Borrower that it is not capable of receiving payments hereunder and under the
Notes without any deduction or withholding of United States federal income tax.
13.02. Increased CapitalIncreased Capital. If after the date
hereof any Lender determines that (i) the adoption or implementation of or any
change in or in the interpretation or administration of any law or regulation or
any guideline or request from any central bank or other Governmental Authority
or quasi-governmental authority exercising jurisdiction, power or control over
any Lender or banks or financial institutions generally (whether or not having
the force of law), compliance with which affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (ii) the amount of such capital is increased by or
based upon the making or maintenance by any Lender of its Loans or other
advances made hereunder or the existence of any Lender's obligation to make
Loans, then, upon written demand by such Lender (with a copy of such demand to
the Agent), the Borrower shall immediately pay to the Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation therefor. Such demand
shall be accompanied by a statement as to the amount of such compensation and
include a brief summary of the basis for such demand. Such statement shall be
conclusive and binding for all purposes, absent manifest error.
13.03. Changes; Legal Restrictions. If after the date hereof
any Lender determines that the adoption or implementation of or any change in or
in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) does or will subject a Lender (or its Applicable Lending
Office or Eurodollar Affiliate) to charges (other than taxes) of any
kind which such Lender reasonably determines to be applicable to the
Commitments of the Lenders to make Eurodollar Rate Loans or change the
basis of taxation of payments to that Lender of principal, fees,
interest, or any other amount payable hereunder with respect to
Eurodollar Rate Loans; or
(b) does or will impose, modify, or hold applicable, in the
determination of a Lender, any reserve (other than reserves taken into
account in calculating the Eurodollar Rate), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, commitments made, or other credit extended by, or
any other acquisition of funds by, a Lender or any Applicable Lending
Office or Eurodollar Affiliate of that Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or to reduce any amount receivable
thereunder; then, in any such case, upon written demand by such Lender (with a
copy of such demand to the Agent), the Borrower shall immediately pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, such amount or amounts as may be necessary to compensate such Lender or
its Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.04. Illegality. (i) If at any time any Lender determines
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Eurodollar Rate
Loan has become unlawful or impermissible by compliance by that Lender with any
law, governmental rule, regulation or order of any Governmental Authority
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful or would result in costs or penalties), then, and in
any such event, such Lender may give notice of that determination, in writing,
to the Borrower and the Agent, and the Agent shall promptly transmit the notice
to each other Lender.
(ii) When notice is given by a Lender under Section 13.04(i), (A)
the Borrower's right to request from such Lender and such Lender's obligation,
if any, to make Eurodollar Rate Loans shall be immediately suspended, and such
Lender shall make a Base Rate Loan as part of any requested Borrowing of
Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan or Loans are
then outstanding, the Borrower shall immediately, or if permitted by applicable
law, no later than the date permitted thereby, upon at least one (1) Business
Day's prior written notice to the Agent and the affected Lender, convert each
such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
13.04(i) such Lender determines that it may lawfully make Eurodollar Rate Loans,
such Lender shall promptly give notice of that determination, in writing, to the
Borrower and the Agent, and the Agent shall promptly transmit the notice to each
other Lender. The Borrower's right to request, and such Lender's obligation, if
any, to make Eurodollar Rate Loans shall thereupon be restored.
13.05. Compensation. In addition to all amounts required to be
paid by the Borrower pursuant to Section 4.01, the Borrower shall compensate
each Lender, upon demand, for all losses, expenses and liabilities (including,
without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurodollar Rate Loans to the Borrower but excluding any
loss of Applicable Eurodollar Rate Margin on the relevant Loans) which that
Lender may sustain (i) if for any reason a Borrowing, conversion into or
continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion/Continuation given
by the Borrower or in a telephonic request by it for borrowing or
conversion/continuation or a successive Eurodollar Interest Period does not
commence after notice therefor is given pursuant to Section 4.01(c), (ii) if for
any reason any Eurodollar Rate Loan is prepaid (including, without limitation,
mandatorily pursuant to Section 3.01) on a date which is not the last day of the
applicable Eurodollar Interest Period, (iii) as a consequence of a required
conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of any of
the events indicated in Section 4.02(d), or (iv) as a consequence of any failure
by the Borrower to repay Eurodollar Rate Loans when required by the terms of
this Agreement. The Lender making demand for such compensation shall deliver to
the Borrower concurrently with such demand a written statement in reasonable
detail as to such losses, expenses and liabilities, and this statement shall be
conclusive as to the amount of compensation due to that Lender, absent manifest
error.
13.06. Limitation on Additional Amounts Payable by the
Borrower. Notwithstanding the provisions of Section 13.01(a), the Borrower shall
not be required to pay any additional amounts thereunder to a Lender if (a) the
obligation to pay such additional amounts would not have arisen but for a
failure by the Lender to comply with the requirements described in Section 13.01
or (b) the Lender shall not have furnished the Borrower with such forms or shall
not have taken such other action as reasonably may be available to it under
applicable tax laws and any applicable tax treaty to obtain an exemption from,
or reduction (to the lowest applicable rate) of withholding of such United
States federal income tax; provided, however, the Borrower's obligation to pay
such additional amounts shall be reinstated upon receipt of such forms or
evidence that action with respect to obtaining such exemption or reduction has
been taken.Limitation on Additional Amounts Payable by the Borrower.
Notwithstanding the provisions of Section 13.01(a), the Borrower shall not be
required to pay any additional amounts thereunder to a Lender if (a) the
obligation to pay such additional amounts would not have arisen but for a
failure by the Lender to comply with the requirements described in Section 13.01
or (b) the Lender shall not have furnished the Borrower with such forms or shall
not have taken such other action as reasonably may be available to it under
applicable tax laws and any applicable tax treaty to obtain an exemption from,
or reduction (to the lowest applicable rate) of withholding of such United
States federal income tax; provided, however, the Borrower's obligation to pay
such additional amounts shall be reinstated upon receipt of such forms or
evidence that action with respect to obtaining such exemption or reduction has
been taken.
13.07. Change in Lending Office. Any Lender claiming any
additional amounts payable pursuant to Section 13.01 shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the Lending Office designated by it for purposes of this
Agreement to a Lending Office in another jurisdiction, if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts which may thereafter accrue and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.01. Assignments and ParticipationsAssignments and
Participations. (a) Assignments. No assignments or participations of any
Lender's rights or obligations under this Agreement shall be made except in
accordance with this Section 14.01. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all of its rights and obligations with respect to the
Loans) in accordance with the provisions of this Section 14.01.
(b) Limitations on Assignments. Each assignment shall be
subject to the following conditions: (i) each such assignment shall be of a
constant, and not a varying, ratable percentage of all of the assigning Lender's
rights and obligations under this Agreement which are subject to such assignment
and, in the case of a partial assignment, shall be in a minimum principal amount
of $5,000,000, (ii) each such assignment shall be to an Eligible Assignee, (iii)
the Borrower shall have the right to approve each such Eligible Assignee and any
assignee which is an Affiliate of a Lender which is not domiciled in the United
States, which approval shall not be unreasonably withheld or delayed and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance. Upon
such execution, delivery, acceptance and recording in the Register, from and
after the effective date specified in each Assignment and Acceptance and agreed
to by the Agent, (A) the assignee thereunder shall, in addition to any rights
and obligations hereunder held by it immediately prior to such effective date,
if any, have the rights and obligations hereunder that have been assigned to it
pursuant to such Assignment and Acceptance and shall, to the fullest extent
permitted by law, have the same rights and benefits hereunder as if it were an
original Lender hereunder, (B) the assigning Lender shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto), and (C) the Borrower shall execute and deliver to the
assignee thereunder one or more Notes, as applicable, evidencing its obligations
to such assignee with respect to the Loans.
(c) The Register. The Agent shall maintain at its address
referred to in Section 14.08 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register (the "Register") for the recordation of the
names and addresses of the Lenders and the Commitment under each Loan of, and
principal amount of the Loans under each facility owing to, each Lender from
time to time and whether such Lender is an original Lender or the assignee of
another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower and each of its Subsidiaries, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Eligible Assignee and a processing and
recordation fee of $2,500 (payable by the assigning Lender or the assignee, as
shall be agreed between them), the Agent shall, if such Assignment and
Acceptance has been completed and is in compliance with this Agreement and in
substantially the form of Exhibit A, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower and the other Lenders.
(e) Participations. Each Lender may sell participations to one
or more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its
Commitments hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Commitments hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (iv) such participant's rights
to agree or to restrict such Lender's ability to agree to the modification,
waiver or release of any of the terms of the Loan Documents or to the release of
any Collateral covered by the Loan Documents, to consent to any action or
failure to act by any party to any of the Loan Documents or any of their
respective Affiliates, or to exercise or refrain from exercising any powers or
rights which any Lender may have under or in respect of the Loan Documents or
any Collateral, shall be limited to the right to consent to (A) increase in the
Commitment of the Lender from whom such participant purchased a participation,
(B) reduction of the principal of, or rate or amount of interest on the Loans(s)
subject to such participation (other than by the payment or prepayment thereof),
(C) postponement of any date fixed for any payment of principal of, or interest
on, the Loan(s) subject to such participation and (D) release of any guarantor
of the Obligations or all or a substantial portion of the Collateral except as
provided in Section 12.09(c).
(f) Information Regarding the Borrower. Any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 14.01, disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Borrower or its Subsidiaries furnished to such Lender by the Agent or by or on
behalf of the Borrower; provided that, prior to any such disclosure, such
assignee or participant, or proposed assignee or participant, shall agree, in
writing, to preserve in accordance with Section 14.20 the confidentiality of any
confidential information described therein.
(g) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(h) Lenders' Creation of Security Interests. Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, Obligations owing to it and any Notes
held by it) in favor of any Federal Reserve bank in accordance with Regulation A
of the Federal Reserve Board.
14.02. ExpensesExpenses.
(a) Generally. The Borrower agrees upon demand to pay, or
reimburse the Agent for, all of the Agent's reasonable internal and external
audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all reasonable other
out-of-pocket costs and expenses of every type and nature (including, without
limitation, the reasonable fees, expenses and disbursements of Sidley & Austin,
local legal counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers, and other consultants and agents) incurred by the Agent
in connection with (i) the Agent's review and investigation of the Borrower and
its Affiliates and the Collateral in connection with the preparation,
negotiation, and execution of the Loan Documents and the Agent's periodic
reviews and audits of the Borrower; (ii) the preparation, negotiation, execution
and interpretation of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V) and the other Loan Documents and the making of the Loans hereunder;
(iii) the creation, perfection or protection of the Liens under the Loan
Documents (including, without limitation, any reasonable fees and expenses for
local counsel in various jurisdictions); (iv) the ongoing administration of this
Agreement, the other Loan Documents and the Loans, including consultation with
attorneys in connection therewith and with respect to the Agent's rights and
responsibilities under this Agreement and the other Loan Documents; (v) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (vi) the commencement of any court
proceeding having as parties thereto Lenders, participants, the Agent and/or the
Borrower or any Subsidiary of the Borrower and relating in any way to the
Obligations, the Collateral, this Agreement or any of the other Loan Documents,
or the defense or intervention in any court proceeding relating in any way to
the Obligations, the Property, the Borrower, any of its Subsidiaries, this
Agreement or any of the other Loan Documents; (vii) the response to, and
preparation for, any subpoena or request for document production with which the
Agent is served or deposition or other proceeding in which the Agent is called
to testify, in each case, relating in any way to the Obligations, the Property,
the Borrower, any of its Subsidiaries, this Agreement or any of the other Loan
Documents; and (viii) any amendments, consents, waivers, assignments,
restatements, or supplements to any of the Loan Documents and the preparation,
negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or
reimburse the Agent and the Lenders upon demand for all reasonable out-of-pocket
costs and expenses, including, without limitation, reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement) incurred
by the Agent or any Lender after the occurrence, and during the continuance, of
an Event of Default (i) in enforcing any Loan Document or Obligation or any
security therefor or exercising or enforcing any other right or remedy available
by reason of such Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or in any insolvency or bankruptcy proceeding; (iii) in
commencing, defending or intervening in any litigation or in filing a petition,
complaint, answer, motion or other pleadings in any legal proceeding relating to
the Obligations, the Property, the Borrower or any of its Subsidiaries and
related to or arising out of the transactions contemplated hereby or by any of
the other Loan Documents; and (iv) in taking any other action in or with respect
to any suit or proceeding (bankruptcy or otherwise) described in clauses (i)
through (iii) above.
14.03. IndemnityIndemnity. The Borrower further agrees to
defend, protect, indemnify, and hold harmless the Agent and each and all of the
Lenders and each of their respective officers, directors, employees, attorneys
and agents (including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V) (collectively, the "Indemnitees") from and against any and all
liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (excluding any taxes and including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, or any act, event or transaction related or attendant thereto, the
making of the Loans, the use or intended use of the proceeds of the Loans, or
any of the other transactions contemplated by any of the Loan Documents, or (ii)
any Liabilities and Costs relating to any violation by the Borrower or any
Material Subsidiary, or their respective predecessors-in-interest of any
Environmental, Health or Safety Requirements of Law, the past, present or future
operations of the Borrower or any Material Subsidiary, or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective past, present or
future Property of the Borrower or any Material Subsidiary, the presence of
asbestos-containing materials at any respective past, present or future Property
of the Borrower or any Material Subsidiary, or the Release or threatened Release
of any Contaminant into the environment by the Borrower or any Material
Subsidiary, or their respective predecessors-in-interest, or the Release or
threatened Release of any Contaminant into the environment from or at any
facility to which the Borrower or any Material Subsidiary, or their respective
predecessors-in-interest sent or directly arranged the transport of any
Contaminant (collectively, the "Indemnified Matters"); provided, however, the
Borrower shall have no obligation to an Indemnitee hereunder with respect to
Indemnified Matters caused by or resulting from the willful misconduct or gross
negligence of such Indemnitee, as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
The Agent and the Lenders agree to notify the Borrower of the institution or
assertion of any Indemnified Matter, but the parties hereto hereby agree that
the failure to so notify the Borrower shall not release the Borrower from its
obligations hereunder.
14.04. Change in Accounting PrinciplesChange in Accounting
Principles. If any change in the accounting principles used in the preparation
of the most recent Financial Statements referred to in Section 7.01 are
hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or successors thereto or agencies with similar
functions) and are adopted by the Borrower with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article
VIII, Article IX, and Article X, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably reflect such
changes with the desired result that the criteria for evaluating compliance with
such covenants, standards and terms by the Borrower shall be the same after such
changes as if such changes had not been made; provided, however, no change in
GAAP that would affect the method of calculation of any of the covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner satisfactory to the Requisite Lenders and
the Borrower, to so reflect such change in accounting principles.
14.05. SetoffSetoff. In addition to any Liens granted under
the Loan Documents and any rights now or hereafter granted under applicable law,
upon the occurrence and during the continuance of any Event of Default under
Section 11.01(a) or acceleration of, or declaration that Obligations are due and
payable under Section 11.02(a), each Lender and any Affiliate of any Lender is
hereby authorized by the Borrower at any time or from time to time, without
notice to any Person (any such notice being hereby expressly waived) to set off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured (but not including trust accounts)) and
any other Indebtedness at any time held or owing by such Lender or any of its
Affiliates to or for the credit or the account of the Borrower against and on
account of the Obligations of the Borrower to such Lender or any of its
Affiliates, including, but not limited to, all Loans and all claims of any
nature or description arising out of or in connection with this Agreement,
irrespective of whether or not (i) such Lender shall have made any demand
hereunder or (ii) the Agent, at the request or with the consent of the Requisite
Lenders, shall have declared the principal of and interest on the Loans and
other amounts due hereunder to be due and payable as permitted by Article XI and
even though such Obligations may be contingent or unmatured. Each Lender agrees
that it shall not, without the express consent of the Requisite Lenders, and
that it shall, to the extent it is lawfully entitled to do so, upon the request
of the Requisite Lenders, exercise its setoff rights hereunder against any
accounts of the Borrower or any Guarantor now or hereafter maintained with such
Lender or any Affiliate of such Lender.
14.06. Ratable SharingRatable Sharing. The Lenders agree among
themselves that (i) with respect to all amounts received by them which are
applicable to the payment of the Obligations (excluding the fees described in
Section 4.03 and Article XIII), equitable adjustment will be made so that, in
effect, all such amounts will be shared among them ratably in accordance with
their Pro Rata Shares, whether received by voluntary payment, by the exercise of
the right of setoff or banker's lien, by counterclaim or cross-action or by the
enforcement of any or all of the Obligations (excluding the fees described in
Sections 4.03 and Article XIII) or the Collateral, (ii) if any of them shall by
voluntary payment or by the exercise of any right of counterclaim, setoff,
banker's lien or otherwise, receive payment of a proportion of the aggregate
amount of the Obligations held by it, which is greater than the amount which
such Lender is entitled to receive hereunder, the Lender receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 14.06 may, to the fullest extent permitted by
law, exercise all its rights of payment (including, subject to Section 14.05,
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
14.07. Amendments and WaiversAmendments and Waivers. (a)
General Provisions. Unless otherwise provided for or required in this Agreement,
no amendment or modification of any provision of this Agreement or any of the
other Loan Documents shall be effective without the written agreement of the
Requisite Lenders (which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion) and the Borrower or Guarantor a party
thereto. No termination or waiver of any provision of this Agreement or any of
the other Loan Documents, or consent to any departure by the Borrower therefrom,
shall be effective without the written concurrence of the Requisite Lenders,
which the Requisite Lenders shall have the right to grant or withhold in their
sole discretion. All amendments, modifications, waivers and consents not
specifically reserved to Lenders and the Agent in Section 14.07(b), Section
14.07(c) and in other provisions of this Agreement shall require only the
approval of the Requisite Lenders. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Amendments, Consents and Waivers by all Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) waiver of any of the conditions specified in Sections 5.01 and 5.02
(except with respect to a condition based upon another provision of
this Agreement, the waiver of which requires only the concurrence of
the Requisite Lenders),
(ii) increase in the amount of any of the Commitments of such Lender
(except with respect to an increase in the amount, or other
modification to the terms or components, of the Borrowing Base
Certificate, each of which shall require only the concurrence of the
Requisite Lenders),
(iii) reduction of the principal of, rate or amount of interest on the
Loans or any fees or other amounts payable to such Lender (other than
by the payment or prepayment thereof),
(iv) postponement of the Revolving Credit Termination Date any date
fixed for any payment of principal of, or interest on, the Loans or any
fees or other amounts payable to such Lender,
(v) change in the definition of Revolving Credit Commitments,
(vi) release of any guarantor of the Obligations or all or a
substantial portion of the Collateral (except as provided in Section
12.09(c)),
(vii) change in the (A) definitions of Requisite Lenders or (B) the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action under this Agreement or the other
Loan Documents,
(viii) amendment of Section 14.01, Section 14.06 or this Section
14.07,
(ix) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower, and
(x) waiver of any Event of Default described in Sections 11.01(a), (f),
(g), (h), and (m).
(c) Agent Authority. The Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.07, no amendment,
modification, waiver or consent shall affect the rights or duties of the Agent
under this Agreement or the other Loan Documents, unless made in writing and
signed by the Agent in addition to the Lenders required above to take such
action; and the order of priority set forth in clauses (A) through (C) of
Section 3.02(b)(ii) may be changed only with the prior written consent of the
Agent. Notwithstanding anything herein to the contrary, in the event that the
Borrower shall have requested, in writing, that any Lender agree to an
amendment, modification, waiver or consent with respect to any particular
provision or provisions of this Agreement or the other Loan Documents, and such
Lender shall have failed to state, in writing, that it either agrees or
disagrees (in full or in part) with all such requests (in the case of its
statement of agreement, subject to satisfactory documentation and such other
conditions it may specify) within thirty (30) days after such request, then such
Lender shall be deemed to not have approved such amendment, modification, waiver
or consent and the Agent shall thereupon determine whether the Lenders required
above to take the requested action have approved the same within the required
time and communicate such determination to the Borrower and the Lenders.
14.08. Notices. Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, sent facsimile
transmission or courier service or United States certified mail and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of a facsimile transmission, or four (4) Business Days after deposit in
the United States mail with postage prepaid and properly addressed. Notices to
the Agent pursuant to Articles II, IV or XIII shall not be effective until
received by the Agent. For the purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 14.08) shall be as set forth below each party's name on the signature
pages hereof or the signature page of any applicable Assignment and Acceptance,
or, as to each party, at such other address as may be designated by such party
in a written notice to all of the other parties to this Agreement.
14.09. Survival of Warranties and Agreements. All
representations and warranties made herein and all obligations of the Borrower
in respect of taxes, indemnification and expense reimbursement shall survive the
execution and delivery of this Agreement and the other Loan Documents, the
making and repayment of the Loans, and the termination of this Agreement and
shall not be limited in any way by the passage of time or occurrence of any
event.
14.10. Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of the Agent or any Lender in the
exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Marshalling; Payments Set Aside. Neither the Agent
nor any Lender shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor
of the Borrower or any other Person or against or in payment of any or all of
the Obligations. To the extent that the Borrower makes a payment or payments
to the Agent, the Lenders or any of such Persons receives payment from the
proceeds of the Collateral or exercises its rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, receiver or any other party,
then to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or
obligation under this Agreement or the other Loan Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
14.13. Headings. Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED,
AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
14.15. Limitation of LiabilityLimitation of Liability. No
claim may be made by the Borrower, any Lender, the Agent, any Indemnitee, or any
other Person against the Borrower, the Agent, any Lender, any Indemnitee, or the
Affiliates, directors, officers, employees, attorneys or agents of any of them
for any indirect, special, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by or provisions of this Agreement, or
any act, omission or event occurring in connection therewith; and the Borrower,
each Lender, and the Agent hereby waives, releases and agrees not to ▇▇▇ upon
any such claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
14.16. Successors and AssignsSuccessors and Assigns. This
Agreement and the other Loan Documents shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
the parties hereto and the successors and permitted assigns of the Lenders. The
rights hereunder of the Borrower, or any interest therein, may not be assigned
without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
(a) Personal Jurisdiction. (i) EACH OF THE AGENT, THE LENDERS,
AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE BORROWER IRREVOCABLY
DESIGNATES AND APPOINTS MARKET INTELLIGENCE CORPORATION, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS AGENT (THE "PROCESS AGENT") FOR
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
EACH OF THE AGENT, THE LENDERS, AND THE BORROWER AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF ANY COURT CONSIDERING THE DISPUTE WHICH IS DESCRIBED IN THE FIRST
SENTENCE OF THIS CLAUSE (a) OR IN CLAUSE (ii) BELOW.
(ii) THE BORROWER AGREES THAT THE AGENT SHALL HAVE THE RIGHT
TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
HAVING JURISDICTION OVER THE BORROWER OR ITS PROPERTY TO ENABLE THE AGENT AND
THE LENDERS TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE AGENT OR ANY LENDER. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE AGENT OR ANY LENDER TO
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE AGENT OR ANY LENDER. THE
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS
SECTION.
(b) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE PROCESS AGENT OR THE
BORROWER'S NOTICE ADDRESS SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE FIVE
(5) BUSINESS DAYS AFTER SUCH MAILING. THE BORROWER IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE AGENT TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(c) Waiver of Jury Trial. EACH OF THE AGENT, LENDERS, AND THE
BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. ANY OF THE BORROWER, THE
AGENT, OR THE LENDERS MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
14.18. Counterparts; Effectiveness; Inconsistencies. This
Agreement and any amendments, waivers, consents, or supplements hereto may
be executed in counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument. This Agreement shall become effective against
the Borrower, each Lender, and the Agent on the Closing Date. This Agreement
and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the
terms and conditions of this Agreement are actually inconsistent with the terms
and conditions of any other Loan Document, this Agreement shall govern.
14.19. Limitation on AgreementsLimitation on Agreements. All
agreements between the Borrower, the Agent and each Lender in the Loan Documents
are hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. ConfidentialityConfidentiality. Subject to Section
14.01(f), the Agent and the Lenders shall hold all nonpublic information
identified as such by the Borrower and obtained pursuant to the requirements of
this Agreement and in accordance with such Lender's customary procedures for
handling confidential information of this nature and in accordance with safe and
sound banking practices and in any event may make disclosure reasonably required
by a bona fide offeree, transferee or participant in connection with the
contemplated transfer or participation or as required or requested by any
Governmental Authority or representative thereof or pursuant to legal process
and shall require any such offeree, transferee or participant to agree (and
require any of its offerees, transferees or participants to agree in writing) to
comply with this Section 14.20. In no event shall any Lender be obligated or
required to return any materials furnished by the Borrower; provided, however,
each offeree shall be required to agree that if it does not become a transferee
or participant it shall return all materials furnished to it by the Borrower in
connection with this Agreement. Any and all confidentiality agreements entered
into between any Lender and the Borrower shall survive the execution of this
Agreement. Except as specifically prohibited by applicable law or any court
order, the Agent and each Lender agrees to notify the Borrower, in writing, of
any request of any Governmental Authority or representative thereof or any legal
process pursuant to which any request is made for such information prior to its
disclosure thereof.
14.21. Entire AgreementEntire Agreement. This Agreement, taken
together with all of the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and supersedes the Commitment Letter
(except for provisions therein specifically referred to herein) and all prior
agreements and understandings, written and oral, relating to the subject matter
hereof.
14.22. Advice of Counsel. The Borrower and each Lender
understand that the Agent's counsel represents only the Agent's and its
Affiliates' interests and that the Borrower and other Lenders are advised to
obtain their own counsel. The Borrower represents and warrants to the Agent and
the other Holders that it has discussed this Agreement with its counsel.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first above written.
BORROWER: DYNCORP
By
Name: T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to Borrower's Senior Vice
President and General Counsel at the same
notice address
AGENT: CITICORP NORTH AMERICA, INC., as Agent
By
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Vice President
Notice Address:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Shapleigh ▇. ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
ISSUING BANK: CITIBANK, N.A.
By
Name:
Title: Vice President
Notice Address
and Domestic Lending Office:
Citibank, N.A.
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Shapleigh ▇. ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
LENDER: CITICORP NORTH AMERICA, INC.
By
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Vice President
Notice Address
and Domestic Lending Office:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Shapleigh ▇. ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office or
Eurodollar Affiliate:
Citicorp North America, Inc.
c/o Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Shapleigh ▇. ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share: 100%
Revolving Credit Commitment: $50,000,000
EXHIBITS
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Note
Exhibit C -- Form of Notice of Borrowing
Exhibit D -- Form of Notice of Conversion/Continuation
Exhibit E -- Projections
Exhibit F -- List of Closing Documents
Exhibit G -- Form of Officer's Certificate to Accompany Reports
Exhibit H -- Form of Letter to Accountants
Exhibit I -- Form of Collection Account Agreement
Exhibit J -- Form of Deposit Account Agreement (Crestar)
SCHEDULES
Schedule 1.01.1 -- Existing Letters of Credit and Expiry Dates
Schedule 1.01.2 -- Fiscal Months; Fiscal Quarters
Schedule 1.01.3 -- Guarantors
Schedule 1.01.4 -- Permitted Equity Securities Options
Schedule 1.01.5 -- Permitted Existing Accommodation
Obligations
Schedule 1.01.6 -- Permitted Existing Capital Leases
Schedule 1.01.7 -- Permitted Existing Indebtedness
Schedule 1.01.8 -- Permitted Existing Investments
Schedule 1.01.9 -- Permitted Existing Liens
Schedule 1.01.10 -- List of Sellers to Dyn Funding
Schedule 6.01-A -- Organizational Documents
Schedule 6.01-C -- Organizational Structure
Schedule 6.01-E -- Governmental Consents
Schedule 6.01-K -- Pending Actions
Schedule 6.01-G -- Compensation and Employee Benefit Plans;
Stock Redemptions, Repurchases and
Issuances
Schedule 6.01-R -- Environmental Matters
Schedule 6.01-S -- ERISA Matters
Schedule 6.01-Z -- Insurance Policies
Schedule 6.01-BB -- Government Contract Matters
Schedule 6.01-FF -- Amendment to & Termination of Receivables Purchase
Documents
Schedule 9.01-N -- Existing Indemnities and Warranties
Schedule 9.10 -- Permitted Sale/Leaseback Transactions
Schedule 9.14 -- Depository Accounts