EXHIBIT 10.1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 27, 2005
among
▇▇▇▇▇▇ INTERNATIONAL INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
JPMORGAN CHASE BANK, N.A.,
as Agent
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Definitions..........................................................1
1.2 Computation of Time Periods.........................................28
1.3 Accounting Terms....................................................28
1.4 Terms Generally.....................................................28
SECTION 2. CREDIT FACILITIES.................................................29
2.1 Revolving Loans.....................................................29
2.2 [Intentionally Omitted].............................................31
2.3 Acquisition Loans...................................................31
2.4 Term Loan...........................................................31
SECTION 3. OTHER PROVISIONS RELATING TO CREDIT FACILITIES....................32
3.1 Default Rate........................................................32
3.2 Extension and Conversion............................................33
3.3 Prepayments.........................................................34
3.4 Termination and Reduction of Commitments............................36
3.5 Fees................................................................37
3.6 Increased Cost and Reduced Return...................................37
3.7 Limitation on Types of Loans........................................39
3.8 Illegality..........................................................39
3.9 Treatment of Affected Loans.........................................39
3.10 Taxes..............................................................40
3.11 Compensation.......................................................42
3.12 Pro Rata Treatment.................................................42
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3.13 Sharing of Payments................................................43
3.14 Payments, Computations, Etc........................................44
3.15 Evidence of Debt...................................................45
3.16 Interest Rate Protection...........................................46
3.17 Security Interest in the Collateral................................46
3.18 Perfection of Security Interest....................................46
3.19 Disposition of Collateral..........................................47
3.20 Preservation of Collateral.........................................47
3.21 Ownership of Collateral............................................47
3.22 Defense of Agent's Interests.......................................47
3.23 Books and Records..................................................48
3.24 Compliance with Laws...............................................48
3.25 Inspection of Premises.............................................48
3.26 Insurance..........................................................49
3.27 Payment of Taxes...................................................49
3.28 Receivables........................................................49
3.29 Exculpation of Liability...........................................52
3.30 Financing Statements...............................................52
3.31 Pledge Agreement; Account Control Agreement........................52
SECTION 4. CONDITIONS........................................................52
4.1 Closing Conditions..................................................52
4.2 Conditions to all Extensions of Credit..............................55
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................56
5.1 Financial Condition.................................................56
5.2 No Material Change..................................................57
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5.3 Organization and Good Standing......................................57
5.4 Power; Authorization; Enforceable Obligations.......................57
5.5 No Conflicts........................................................58
5.6 No Default..........................................................58
5.7 Ownership of Assets.................................................58
5.8 Indebtedness........................................................58
5.9 Litigation..........................................................58
5.10 Taxes..............................................................59
5.11 Compliance with Law................................................59
5.12 ERISA..............................................................59
5.13 Subsidiaries.......................................................60
5.14 Governmental Regulations, Etc......................................61
5.15 Purpose of Loans...................................................62
5.16 Environmental Matters..............................................62
5.17 Intellectual Property..............................................63
5.18 Solvency...........................................................63
5.19 Investments........................................................63
5.20 [Intentionally omitted]............................................63
5.21 Disclosure.........................................................63
5.22 No Burdensome Restrictions; Material Contracts.....................63
5.23 Labor Matters......................................................64
5.24 Nature of Business.................................................64
5.25 Security Documents.................................................64
5.26 Transactions with Affiliates.......................................65
5.27 Insurance..........................................................65
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SECTION 6. AFFIRMATIVE COVENANTS.............................................65
6.1 Information Covenants...............................................66
6.2 Preservation of Existence and Franchises............................68
6.3 Books and Records...................................................68
6.4 Compliance with Law.................................................68
6.5 Payment of Taxes and Other Indebtedness.............................69
6.6 Insurance; Certain Proceeds.........................................69
6.7 Maintenance of Property.............................................70
6.8 Performance of Obligations..........................................71
6.9 Use of Proceeds.....................................................71
6.10 Audits/Inspections.................................................71
6.11 Additional Credit Parties..........................................71
SECTION 7. NEGATIVE COVENANTS................................................72
7.1 Indebtedness........................................................72
7.2 Liens...............................................................73
7.3 Nature of Business..................................................73
7.4 Consolidation, Merger, Dissolution, Etc.............................74
7.5 Asset Dispositions..................................................75
7.6 Investments; Acquisitions...........................................75
7.7 Restricted Payments.................................................76
7.8 Prepayments of Indebtedness, Etc....................................76
7.9 Transactions with Affiliates........................................76
7.10 Fiscal Year; Organizational Documents..............................77
7.11 Limitation on Restricted Actions...................................77
7.12 Ownership of Subsidiaries: Limitations on Borrower.................77
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7.13 Sale Leasebacks....................................................78
7.14 [intentionally omitted]............................................78
7.15 No Further Negative Pledges........................................78
7.16 Impairment of Security Interests...................................78
7.17 Sales of Receivables...............................................78
7.18 Financial Covenants................................................78
SECTION 8. EVENTS OF DEFAULT............................................79
8.1 Events of Default...................................................79
8.2 Acceleration; Remedies..............................................82
SECTION 9. AGENCY PROVISIONS.................................................83
9.1 Appointment, Powers and Immunities..................................83
9.2 Reliance by Agent...................................................84
9.3 Defaults............................................................84
9.4 Rights as Lender....................................................84
9.5 Indemnification.....................................................85
9.6 Non-Reliance on Agent and Other Lenders.............................85
9.7 Resignation of Agent................................................86
SECTION 10. MISCELLANEOUS....................................................86
10.1 Notices............................................................86
10.2 Right of Set-Off...................................................87
10.3 Benefit of Agreement...............................................88
10.4 No Waiver; Remedies Cumulative.....................................90
10.5 Expenses; Indemnification..........................................90
10.6 Amendments. Waivers and Consents...................................91
10.7 Counterparts.......................................................93
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10.8 Headings...........................................................93
10.9 Survival...........................................................93
10.10 Governing Law, Submission to Jurisdiction; Venue..................94
10.11 Severability......................................................94
10.12 Entirety..........................................................94
10.13 Binding Effect; Termination.......................................95
10.14 Confidentiality...................................................95
10.15 Source of Funds...................................................95
10.16 Conflict..........................................................96
10.17 Customer Identification - USA Patriot Act Notice..................96
SCHEDULES
Schedule 1.1A Investments
Schedule 1.1B Liens
Schedule 2.1(a) Commitments
Schedule 5.1 Liabilities
Schedule 5.4 Required Consents, Authorizations, Notices and Filings
Schedule 5.9 Litigation
Schedule 5.10 Tax Investigation
Schedule 5.12 ERISA
Schedule 5.13 Subsidiaries
Schedule 5.16 Environmental Disclosures
Schedule 5.17 Intellectual Property
Schedule 5.22 Material Contracts
Schedule 5.23 Labor Matters
Schedule 5.25 Filing Locations
Schedule 7.1(b) Indebtedness
Exhibit A-1 Third Amended and Restated Note (JPMorgan Chase Bank, N.A.)
Exhibit A-2 Third Amended and Restated Note (KeyBank National Association)
Exhibit B-1 Amended and Restated Term Note (JPMorgan Chase Bank, N.A.)
Exhibit B-2 Amended and Restated Term Note (KeyBank National Association)
Exhibit C Form of Intercompany Note
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Notice of Revolving Borrowing
Exhibit F Form of Acquisition Note
Exhibit G Form of Notice of Extension/Conversion
Exhibit H Form of Officer's Compliance Certificate
Exhibit I Form of Joinder Agreement
Exhibit J Form of Opinion of General Counsel
Exhibit K Reaffirmation Agreement
vii
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 27, 2005 (as
amended, modified, restated or supplemented from time to time, this
"Agreement"), among ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio corporation (the
"Borrower"), the Lenders (as defined herein) and JPMORGAN CHASE BANK, N.A.,
successor by merger to Bank One, NA, as Agent for the Lenders (in such capacity,
the "Agent"). This Agreement amends and restates in its entirety the Amended and
Restated Credit Agreement dated as of June 3, 2002 among Borrower, the several
Lenders identified therein and Agent, as amended pursuant to a First Amendment
to Amended and Restated Loan Agreement dated as of June 3, 2002, a Second
Amendment to Amended and Restated Loan Agreement dated as of March 28, 2003, a
Third Amendment to Amended and Restated Loan Agreement dated as of May 14, 2003
and a Fourth Amendment to Amended and Restated Credit Agreement dated as of
September 30, 2003 (as amended, the "Original Credit Agreement") and is not a
novation or discharge of the obligations of the Borrower thereunder.
Borrower has requested that the Lenders increase the Revolving Committed
Amount (as defined below) from $10,000,000 to $20,000,000 and consolidate the
amendments to the Original Credit Agreement and restate in its entirety the
Original Credit Agreement. Lenders have agreed to make the requested credit
facility available to Borrower on the terms and subject to the limitations set
forth in this Agreement below. Accordingly, the Borrowers, the Lenders and the
Agent agree as follows:
SECTION 1.
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have
the meanings specified below:
"Account Control Agreements" shall mean, collectively, the Account Control
Agreement dated May 14, 2003 by and between Borrower and McDonald Investments,
Inc. and the Account Control Agreement dated May 14, 2003 by and between
Borrower and Bank One Trust Company, N.A.
"Acquisition Borrowing" shall have the meaning assigned to that term in
Section 2.1(b).
"Acquisition Loan(s)" shall have the meaning assigned to that term in
Section 2.3.
"Acquisition Note(s)" shall mean the promissory notes of the Borrower
provided pursuant to Section 2.3, in the form of Exhibit F, in favor of each of
the applicable Lenders, evidencing each Acquisition Loan, individually or
collectively, as appropriate as such promissory notes may be amended, modified,
supplemented, extended, reviewed or replaced from time to time.
"Additional Guarantor" shall mean each Person that becomes a Domestic
Subsidiary of the Borrower after the Effective Date.
1
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" shall mean the Eurodollar Rate plus the
Applicable Percentage.
"Affected Loans" shall have the meaning assigned to that term in Section
3.9.
"Affected Type" shall have the meaning assigned to that term in Section
3.9.
"Affiliate" shall mean (a) with respect to any Person (including the Credit
Parties), any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such Person and (b) with respect
to the Credit Parties, any Person directly or indirectly owning or holding five
percent (5%) or more of the equity interest in such Credit Parties. For purposes
of this definition, "control" when used with respect to any Person shall mean
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agency Services Address" shall mean JPMorgan Chase Bank, N.A., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be
identified by written notice from the Agent to the Borrower.
"Agent" shall have the meaning assigned to that term in the heading hereof,
together with its successors.
"Amendment Date" shall mean the date on which this Agreement is executed
and delivered by the parties hereto.
"Applicable Lending Office" shall mean, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or an Affiliate of such Lender) as such Lender may from
time to time specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Percentage" shall mean, for purposes of calculating (i) the
applicable interest rate for any day for any Eurodollar Revolving Loan or the
applicable rate of the Standby Letter of Credit Fees, (ii) the applicable
interest rate for any day for any Eurodollar Term Loan, (iii) the applicable
interest rate for any Base Rate Loan, and (iv) the applicable rate of the
Facility Fee for any day for purposes of Section 3.5(b), the appropriate
applicable percentage set forth in the table below corresponding to the Leverage
Ratio as of the most recent Calculation Date:
2
Applicable
Applicable Percentage
Percentage for Applicable Applicable
for Eurodollar Percentage Percentage
Eurodollar Term Loans For For
Pricing Total Revolving and Acquisition Base Rate Facility
Level Leverage Ratio Loans Loans Loans Fees
------- ---------------- ----------- --------------- ---------- ---------
I = 1.0 to 1.0 1.00% 1.50% 0.0% 0.30%
II = 1.5 to 1.0 but 1.15% 1.75% 0.0% 0.35%
> 1.0 to 1.0
III =2.0 to 1.0 but 1.35% 2.00% 0.0% 0.40%
> 1.5 to 1.0
IV = 2.5 to 1.0 but 1.60% 2.25% 0.0% 0.45%
>2.0 to 1.0
Each Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five (5) Business Days after the date by which
the Borrower is required to provide an officer's certificate in accordance with
the provisions of Section 6.1 (c) for the most recently ended fiscal quarter of
the Borrower; provided, that if the Borrower fails to provide the officer's
certificate to the Agency Services Address as required by Section 6.1(c) for the
most recently ended fiscal quarter of the Borrower preceding the applicable
Calculation Date, the Applicable Percentage from such Calculation Date shall be
based on Pricing Level IV (as shown above) until the date five Business Days
following such time as an appropriate officer's certificate is provided,
whereupon the Pricing Level shall be determined by the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the Borrower preceding
such Calculation Date. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all Loans then existing or
subsequently made or issued.
"Asset Disposition" shall mean the disposition of any or all of the assets
of any Credit Party (including the Capital Stock of a Subsidiary), whether by
sale, lease (including any Sale and Leaseback Transaction), transfer, Casualty,
Condemnation or otherwise; provided that, the foregoing definition shall not be
deemed to imply that any such Asset Disposition is permitted under this
Agreement. The term "Asset Disposition" shall not include any Equity Issuance.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and its assignee in the form of Exhibit D or such other similar
form as shall be approved by the Agent and the Borrower.
3
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" shall mean, with respect to any Person, the occurrence
of any of the following with respect to such Person: (a) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property
or ordering the winding up or liquidation of its affairs; or (b) there shall be
commenced against such Person an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or liquidation
of its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period of sixty
(60) consecutive days; or (c) such Person shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or make any
general assignment for the benefit of creditors; (d) such Person shall be unable
to, or shall admit in writing its inability to, pay its debts generally as they
become due; (e) being in liquidation or provisional liquidation or under
administration (as defined in the Corporations Law) or an analogous person
appointed to it or any of its property; or (f) being taken under Section 459F(1)
of the Corporations Law to have failed to comply with a statutory demand.
"Corporations Law" shall mean the Corporations ▇▇▇ ▇▇▇▇ (Cth) as amended from
time to time and applied in the various states and territories of the
Commonwealth of Australia.
"Base Rate" shall mean, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a change
in the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Base Rate Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Base Rate.
"Base Rate Term Loan" shall mean any Term Loan or Acquisition Loan or
portion thereof bearing interest at a rate determined by reference to the Base
Rate.
4
"Borrower" shall mean the Person identified as such in the heading hereof,
together with its permitted successors and assigns.
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Cincinnati, Ohio are authorized or required by law
to close; except, that, when used in connection with a Eurodollar Loan, such day
shall also be a day on which dealings between banks are carried on in U.S.
dollar deposits in London, England.
"Calculation Date" shall have the meaning assigned to that term in the
definition of "Applicable Percentage" set forth in this Section 1.1.
"Capital Lease" shall mean, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" shall mean (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and (f) all rights to purchase, warrants, options
and other securities exercisable for, exchangeable for or convertible into any
of the foregoing.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve (12) months from the date of acquisition, (b) U.S. dollar
denominated certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition (provided
however, any such cash equivalents in Borrower's portfolio as of the date of
this Agreement may have a maturity greater than 270 days), (c) commercial paper,
variable or fixed rate notes or bonds issued by, or supported by a letter of
credit issued by, any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated
A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent
thereof) or better by Moody's and maturing within six (6) months of the date of
acquisition, (d) repurchase agreements with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the Borrower or any Subsidiary shall
have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations and (e) Investments, classified
in accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
5
"Casualty" shall mean any casualty or other loss, damage or destruction of
any Property of any Credit Party.
"Change of Control" shall mean any of the following events: (a) any person
or "group" (within the meaning of Rule 13d-5 under the Exchange Act), together
with its Affiliates, other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, shall
beneficially own, directly or indirectly, the lesser of (i) an amount of Capital
Stock of the Borrower entitled to twenty percent (20%) or more of the Total
Voting Power of the Borrower or (ii) an amount of Capital Stock of the Borrower
entitled to a percentage of the Total Voting Power of the Borrower in excess of
the aggregate of such Capital Stock owned, directly or indirectly, by ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or (b) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
the Borrower was approved by a vote of sixty-six and 2/3 percent (66-2/3%) of
the directors of the Borrower then still in office who were either 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
Board of Directors of the Borrower then in office.
"Chief Financial Officer" of any Person shall mean the chief financial
officer, principal accounting officer or similar officer of such Person.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" shall mean and include all Receivables, together with all
proceeds therefrom, in whatever form, including but not limited to: cash,
deposit accounts (whether or not comprised solely of proceeds), certificates of
deposit, negotiable instruments and other instruments for the payment of money,
and chattel paper, security agreements and any and all related documents.
"Collateral Documents" shall mean the Pledge Agreement, the Guarantee
Agreement, the Reaffirmation Agreement, and such other documents executed and
delivered in connection with the attachment and perfection of the Agent's
security interests and liens arising thereunder and all documents and
instruments under and pursuant to Section 6.11.
6
"Commitment" shall mean with respect to each Lender, the Revolving
Commitment, Term Commitment and Acquisition Loan Commitment of such Lender.
"Commitment Percentage" shall mean, for any Lender, the percentage, if any,
identified as its Commitment Percentage on Schedule 2.1(a) (or in the Assignment
and Acceptance pursuant to which such Lender assumed its Revolving Commitment),
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of this Agreement.
"Condemnation" shall mean any taking of Property, or any part thereof or
interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other similar manner.
"Condemnation Award" shall mean all proceeds of any Condemnation or
transfer in lieu thereof.
"Consolidated Capital Expenditures" shall mean, for any period, the sum of
all amounts, in accordance with GAAP, that are included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Borrower and its Consolidated Subsidiaries
during such period (excluding the amounts under any Capital Lease).
Notwithstanding the foregoing, the term "Consolidated Capital Expenditures"
shall not include (a) capital expenditures in respect of the reinvestment of
Insurance Proceeds and Condemnation Awards received by the Borrower and its
Subsidiaries to the extent that such reinvestment is permitted under the Credit
Documents and (b) capital expenditures for Permitted Acquisitions.
"Consolidated Cash Dividends" shall mean, for any period, the aggregate
amount of all dividends or distributions paid in cash in respect of Capital
Stock by the Borrower during such period.
"Consolidated Taxes" shall mean the aggregate amount of all Federal, state,
local and foreign income, value added and similar taxes based upon income of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(i) Consolidated Interest Expense; (ii) Consolidated Cash Taxes; and (iii)
depreciation and amortization expense minus (c) an amount which, in the
determination of Consolidated Net Income for such period, has been added for any
non-cash income or non-cash gains plus (d) an amount which, in the determination
of Consolidated Net Income for such period, has been subtracted for any non-cash
losses, all as determined in accordance with GAAP.
7
"Consolidated Interest Expense" shall mean, for any period, the gross
amount of interest expense of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, during such period,
including (a) the portion of any payments or accruals with respect to Capital
Leases that are allocable to interest expense in accordance with GAAP, (b) net
costs under Interest Rate Protection Agreements during such period and (c) all
fees, charges, discounts and other costs recognized in Borrower's Consolidated
Net Income in respect of Indebtedness during such period, but, in each case;
provided, that (i) all non-cash interest expense shall be excluded and (ii) any
interest on Indebtedness of another Person that is guaranteed by the Borrower or
any of its Consolidated Subsidiaries or secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) a Lien on, or payable out of the proceeds of the sale of or production from,
assets of the Borrower or any of its Consolidated Subsidiaries (whether or not
such guarantee or Lien is called upon) shall be included.
"Consolidated Net Income" shall mean, for any period, net income (or loss)
after taxes of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, for such period; provided, that,
there shall be excluded from such calculation of net income (or loss) (a) the
income of any Person in which any other Person (other than the Borrower or any
of its Subsidiaries) has any interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period and to the extent such dividend
or distribution actually paid is required by GAAP and the regulations
promulgated by the Securities and Exchange Commission to be reported as income,
(b) the income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries or the date such Person's assets are acquired by the
Borrower or any of its Subsidiaries, (c) the income of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary, (d) except for purposes of Section 7.18(c), any after-tax gains
attributable to sales of assets out of the ordinary course of business, (e)
unrealized gains or losses arising from the recording of derivatives at fair
market value pursuant to Financial Accounting Standard No. 133 issued by FASB,
(f) losses arising from impairment of goodwill and other acquisition related
intangibles pursuant to the application of Financial Accounting Standard No. 142
issued by FASB, and (g) except for purposes of Section 7.18(c), to the extent
not included in clauses (a) through (f) above, any non-cash extraordinary gains
or non-cash extraordinary losses.
"Consolidated Scheduled Funded Debt Payments" shall mean, for any period,
with respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis, the sum of all scheduled payments of principal on Funded Indebtedness for
such period (including the principal component of payments due on Capital Leases
during such period but excluding, as long as no Default or Event of Default has
occurred and is continuing, any principal payments due on Revolving Loans during
such period); provided, that, Consolidated Scheduled Funded Debt Payments shall
not include voluntary prepayments of Funded Indebtedness, mandatory prepayments
required pursuant to Section 3.3 or other mandatory prepayments of Funded
Indebtedness.
8
"Consolidated Stock Repurchases" shall mean, for any period, the aggregate
amount of all cash and property paid by Borrower in respect of the redemption,
repurchase or other acquisition of any class of capital stock of the Borrower
during such period.
"Consolidated Subsidiaries" of any Person shall mean all subsidiaries of
such Person consolidated with such Person for financial reporting purposes in
accordance with GAAP.
"Credit Documents" shall mean a collective reference to this Agreement, the
Notes, the LOC Documents, each Joinder Agreement, the Collateral Documents, the
Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement, the
Intercompany Notes, any Lender Hedging Agreement and all other related
agreements and documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and "Credit
Document" shall mean any one of them.
"Credit Obligations" shall mean, without duplication, (a) all of the
obligations of the Credit Parties to the Lenders and the Agent, whenever
arising, whether monetary or otherwise, under this Agreement, the Notes, the
Collateral Documents, the Guarantee Agreement or any of the other Credit
Documents (including, without limitation, principal obligations, interest
obligations (including any interest accruing after the occurrence of a
Bankruptcy Event with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and all fees, expenses,
indemnities and expense reimbursement obligations) and (b) all liabilities and
obligations, whenever arising, owing from the Borrower to any Lender, or any
Affiliate of a Lender, arising under any Lender Hedging Agreement.
"Credit Parties" shall mean the Borrower and its Subsidiaries, and "Credit
Party" shall mean any one of them.
"Debt Issuance" shall mean the issuance of any Indebtedness for borrowed
money by any Credit Party; provided, that, the foregoing definition shall not be
deemed to imply that any such Debt Issuance is permitted under this Agreement.
"Debtor" shall mean the account debtor with respect to any of Borrower's or
its Domestic Subsidiaries' Receivables and/or the prospective purchaser or
account debtor with respect to any contract right, and/or any party who enters
into or proposes to enter into any contract or other arrangement with Borrower
or any of its Domestic Subsidiaries pursuant to which Borrower or any of its
Domestic Subsidiaries is to deliver any personal property or perform any
service.
9
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Disqualified Stock" of any Person shall mean (a) any Capital Stock of such
Person which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening
of any event or otherwise (i) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock, (iii) is redeemable or subject to any
repurchase requirement exercisable at the option of the holder thereof, in whole
or in part, in each case on or prior to the first anniversary of the Maturity
Date (or, if earlier, the first anniversary of the date on which all the Credit
Obligations have been indefeasibly paid in full in cash and the Commitments have
been terminated) and (b) if such Person is a Subsidiary of the Borrower, any
Preferred Stock of such Person.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Effective Date" shall mean June 3, 2002.
"Eligible Assignee" shall mean: (a) any Lender; (b) any Affiliate of a
Lender; and (c) any other commercial bank, financial institution or "accredited
investor" (as defined in Regulation D under the Securities Act of 1933, as
amended) approved by the Agent and, unless an Event of Default has occurred and
is continuing at the time any assignment is effected in accordance with Section
10.3(b), the Borrower, such approval not to be unreasonably withheld or delayed
by the Borrower and such approval to be deemed given by the Borrower if no
objection from the Borrower is received by the assigning Lender and the Agent
within five Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, that, neither the
Borrower, any Affiliate of the Borrower nor any direct competitor of the
Borrower in the Borrower's business shall qualify as an Eligible Assignee.
"Environmental Laws" shall mean any and all applicable Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment, including, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes.
10
"Equity Issuance" shall mean any issuance by any Credit Party of any
Capital Stock to any Person or the receipt by any such Person of a capital
contribution from any other Person, including the issuance of any of its Capital
Stock pursuant to the exercise of options or warrants or upon the conversion of
any debt securities to equity; provided, that, the foregoing definition shall
not be deemed to imply that any such issuance is permitted under this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, including the rules and regulations
thereunder, all as the same may be in effect from time to time. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" shall mean an entity which is under common control with
any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is a
member of a group which includes any Credit Party and which is treated as a
single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" shall mean (a) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (b) the withdrawal by any Credit Party or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was
a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA),
or the termination of a Multiple Employer Plan; (c) the distribution of a notice
of intent to terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to terminate or
the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (e)
any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan; (f) the complete or partial withdrawal of any Credit Party or any ERISA
Affiliate from a Multiemployer Plan; (g) the conditions for imposition of alien
under Section 302(f) of ERISA exist with respect to any Plan; or (h) the
adoption of an amendment to any Plan requiring the provision of security to such
Plan pursuant to Section 307 of ERISA.
"Eurodollar Loans" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period, the rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by the Agent to be equal to the quotient obtained by dividing
(a) the Interbank Offered Rate for such Eurodollar Loan for such Interest Period
by (b) 1 minus the Reserve Requirement for such Eurodollar Loan for such
Interest Period.
"Event of Default" shall have the meaning assigned to that term in Section
8.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
11
"Excluded Asset Dispositions" shall mean (a) any Asset Disposition by any
Credit Party to the Borrower or any Guarantor if, after giving effect to such
Asset Disposition, no Default or Event of Default exists, (b) the liquidation of
Cash Equivalents for the account of the Borrower, (c) the disposition of worn
out, damaged or obsolete tangible assets, so long as the fair market value
(based on the good faith judgment of the Borrower without the requirement of a
third party appraisal) of all property disposed of pursuant to this clause (c)
does not exceed $1,000,000 in the aggregate in any fiscal year, and (d) Asset
Dispositions in the nature of non-material Casualties that do not result in
insurance proceeds or damage to Collateral in excess of $1,000,000 in the
aggregate in any fiscal year.
"Facility" shall mean the Loans provided to the Borrower or participated in
by the Lenders pursuant to this Agreement and the other Credit Documents.
"Facility Fee" shall have the meaning assigned to that term in Section
3.5(b).
"Facility Fee Calculation Period" shall have the meaning assigned to that
term in Section 3.5(b).
"FASB" shall mean the Financial Accounting Standards Board, or any
successor organization.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided, that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average quotation for such day received by
the Agent from three Federal Funds brokers of recognized standing as selected by
Agent.
"Fees" shall mean all fees payable pursuant to Section 3.5.
"Fixed Charge Coverage Ratio" shall mean, as of any reporting day, the
ratio of (a) Consolidated EBITDA for the period of four consecutive quarters of
the Borrower ending on, or most recently preceding, such day, minus unfunded
Consolidated Capital Expenditures for such period, minus Consolidated Cash
Dividends for such period, minus Consolidated Stock Repurchases for such period,
to (b) the sum of (i) Consolidated Interest Expense for such period, plus, (ii)
Consolidated Scheduled Funded Debt Payments for such period.
"Foreign Subsidiary" shall mean, with respect to any Person, any Subsidiary
of such Person which is not a Domestic Subsidiary of such Person.
12
"Funded Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness of the
types referred to in clause (f), (g), (i), (k) and (l) of the definition of
"Indebtedness" set forth in this Section 1.1, (b) all Indebtedness of another
Person of the type referred to in clause (a) above secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (c) all Guaranty Obligations of
such Person with respect to Indebtedness of the type referred to in clause (a)
above of another Person and (d) Indebtedness of the type referred to in clause
(a) above of any partnership or unincorporated joint venture in which such
Person is general partner or for which such Person is otherwise legally
obligated or has a reasonable expectation of being liable with respect thereto.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis, subject to the terms of Section 1.3.
"Governmental Authority" shall mean any Federal, state, local or foreign
governmental court, agency, commission, board, bureau, authority,
instrumentality, judicial or regulatory body, or entity.
"Guarantee Agreement" shall mean the Amended and Restated Guarantee
Agreement dated the Effective Date executed by the Guarantors in favor of the
Agent, as it may be amended, modified, restated or supplemented from time to
time.
"Guarantor" shall mean all Guarantors under the Guarantee Agreement
existing on the Effective Date and each Additional Guarantor which may
thereafter execute a Joinder Agreement, together with their successors and
permitted assigns.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including any obligation, whether or
not contingent, (a) to purchase any such Indebtedness or any Property
constituting security therefor, (b) to advance or provide funds or other support
for the payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including keep well agreements, maintenance agreements, comfort letters or
similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (c) to lease or purchase Property, securities
or services primarily for the purpose of insuring the holder of such
Indebtedness against loss in respect thereof or (d) to otherwise assure or hold
harmless the holder of such Indebtedness against loss in respect thereof. For
purposes hereof, the amount of any Guaranty Obligation shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
13
"Indebtedness" of any Person shall mean (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, letters of credit, notes or similar instruments, or upon which
interest payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six (6)
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (g) all
Guaranty Obligations of such Person, (h) the principal portion of all
obligations of such Person under Capital Leases, (i) all net obligations of such
Person under Interest Rate Protection Agreements or foreign currency exchange
agreements, (j) the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all Disqualified Stock of such Person, and (l) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer.
"Indemnified Party" shall have the meaning assigned to that term in Section
10.5(b).
"Indemnity Subrogation and Contribution Agreement" shall mean the Amended
and Restated Indemnity, Subrogation and Contribution Agreement dated the
Effective Date executed by the Guarantors in favor of the Agent, as amended,
modified, restated or supplemented from time to time.
"Insurance Proceeds" shall mean all insurance proceeds (other than business
interruption insurance proceeds), damages, awards, claims and rights of action
with respect to any Casualty.
"Interbank Offered Rate" shall mean, for any Eurodollar Loan for any
Interest Period, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen FRBD Page (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered Rate" shall
mean, for any Eurodollar Loan for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page).
14
"Intercompany Notes" shall mean the intercompany promissory notes as set
forth in Schedule 3 to the Pledge Agreement or otherwise as contemplated by
clauses (f) or (g) of the definition of Permitted Investments, in the form
attached hereto as Exhibit C.
"Intercreditor Agreement" shall mean the Amended and Restated Intercreditor
and Collateral Agreement dated as of the Effective Date, as amended, modified,
restated or supplemented from time to time.
"Interest Payment Date" shall mean (a) as to Base Rate Loans, the last
Business Day of each March, June, September and December of each year during the
term of this Agreement and (b) as to Eurodollar Loans, the last day of each
applicable Interest Period for any such Loan and the Maturity Date, and in
addition, where the applicable Interest Period for any such Loan is greater than
three (3) months, the date three (3) months from the beginning of the Interest
Period and each three months thereafter and (c) as to all Loans, the Maturity
Date of such Loans.
"Interest Period" shall mean a period of one (1), two (2), three (3), six
(6) or twelve (12) months' duration, as the Borrower may elect (subject to
availability) commencing, in each case, on the date of the borrowing (including
conversions and extensions thereof) provided, that, (i) if any Interest Period
would end on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (ii) no
Interest Period for any Loan shall extend beyond the Maturity Date for such Loan
and (iii) in the case of Eurodollar Loans, where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Interest Rate Protection Agreement" shall mean any interest rate swap,
collar, cap or other arrangement requiring payments contingent upon interest
rates.
"Investment" in any Person shall mean (a) the acquisition (whether for
cash, Property, services, assumption of Indebtedness, securities or otherwise)
of assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint
venture or other ownership interests or other securities of such other Person or
(b) any deposit with, or advance, loan or other extension of credit to, such
Person (other than deposits made in connection with the purchase of equipment or
other assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including any Guaranty Obligations
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit I hereto, executed and delivered by an Additional Guarantor in
accordance with the provisions of Section 6.11.
15
"Lender" shall mean any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their successors
and permitted assigns.
"Lender Hedging Agreements" shall mean any Interest Rate Protection
Agreement or foreign currency exchange agreement between the Borrower or any of
its Subsidiaries and any Lender (or any Affiliate of a Lender).
"Lending Party" shall have the meaning assigned to that term in Section
10.14.
"Leverage Ratio" shall mean, as of any reporting day, the ratio of (i)
Funded Indebtedness of the Borrower and its Consolidated Subsidiaries on a
consolidated basis as of the last day of the period of four (4) consecutive
fiscal quarters of the Borrower ending on, or most recently preceding, such day,
less 50% of Cash Equivalents, to (ii) Consolidated EBITDA for such period.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
easement, assignment, deposit arrangement, restriction, restrictive covenant,
lease, sublease, option, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code as adopted and in effect in the relevant jurisdiction or other
similar recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" shall mean collectively, the Revolving Loans, Term Loan,
and Acquisition Loans which may also be referred to by Type as either Base Rate
Loans or Eurodollar Loans. As the context requires, a "Loan" of a particular
Type refers to a portion of the total outstanding Loans of such Type as to which
a single Interest Period is in effect.
"Material Adverse Change" shall mean a material adverse change in (a) the
condition (financial or otherwise), operations, business, assets, liabilities
(actual or contingent), historical or projected revenues or cash flows, material
relationships or management of the Credit Parties taken as a whole; provided,
that, a change in the economic condition of a foreign or domestic jurisdiction
in and of itself shall not be deemed to be a Material Adverse Change pursuant to
this clause (a), (b) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or (c) the material
rights and remedies of the Lenders under the Credit Documents. In determining
whether any individual event or occurrence of the foregoing types would result
in a Material Adverse Change, notwithstanding that a particular event or
occurrence does not by itself constitute such a change, a Material Adverse
Change shall be deemed to have occurred if the cumulative effect of such event
or occurrence and all other events or occurrences of the foregoing types which
have occurred would result in a Material Adverse Change.
16
"Material Adverse Effect" shall mean a material adverse effect on (a) the
condition (financial or otherwise), operations, business, assets, liabilities
(actual or contingent), historical or projected revenues or cash flows, material
relationships or management of the Credit Parties taken as a whole; provided,
that, a change in the economic condition of a foreign or domestic jurisdiction
in and of itself shall not be deemed to be a Material Adverse Effect pursuant to
this clause(a), (b) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or (c) the material
rights and remedies of the Lenders under the Credit Documents. In determining
whether any individual event or occurrence of the foregoing types would result
in a Material Adverse Effect, notwithstanding that a particular event or
occurrence does not itself have such effect, a Material Adverse Effect shall be
deemed to have occurred if the cumulative effect of such event or occurrence and
all other events or occurrences of the foregoing types which have occurred would
result in a Material Adverse Effect.
"Material Contracts" shall have the meaning assigned to that term in
Section 5.22.
"Materials of Environmental Concern" shall mean any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous, toxic, radioactive or explosive substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including
asbestos, polychlorinated biphenyls and ureaformaldehyde insulation and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law.
"Maturity Date" shall mean the Revolving Maturity Date or Term Maturity
Date, as applicable.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to
such company in the business of rating securities.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" shall mean a Plan which any Credit Party or any
ERISA Affiliate and at least one employer other than any Credit Party or any
ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Disposition,
(i) the gross amount of cash proceeds (including Insurance Proceeds and
Condemnation Awards in the case of any Casualty or Condemnation except to the
extent and for as long as such Insurance Proceeds or Condemnation Awards are
Reinvestment Funds or unless such Insurance Proceeds or Condemnation Awards are
to be used for repair, restoration or replacement pursuant to plans approved by
the Required Lenders) actually paid to or actually received by any Credit Party
in respect of such Asset Disposition (including cash proceeds subsequently
received at any time in respect of
17
such Asset Disposition from non-cash consideration initially received or
otherwise), less (ii) the sum of (A) the amount, if any, of all taxes (other
than income taxes) and the Borrower's good-faith best estimate of all income
taxes relating thereto (to the extent that such amount shall have been set aside
for the purpose of paying such taxes when due), and customary fees, brokerage
fees, commissions, costs and other expenses (other than those payable to any
Credit Party or any Affiliate of any such Person) that are incurred in
connection with such Asset Disposition and are payable by the seller or the
transferor of the assets or Property to which such Asset Disposition relates,
but only to the extent not already deducted in arriving at the amount referred
to in clause (a)(i) above, (B) appropriate amounts set aside as a reserve in
accordance with GAAP against any liabilities associated with such Asset
Disposition and (C) if applicable, the amount of Indebtedness secured by a
Permitted Lien that has been repaid or refinanced as required in accordance with
its terms with the proceeds of such Asset Disposition; and (b) with respect to
any Equity Issuance or Debt Issuance, the gross amount of cash proceeds paid to
or received by any Credit Party in respect of such Equity Issuance or Debt
Issuance, as the case may be (including cash proceeds subsequently received at
any time in respect of such Equity Issuance or Debt Issuance from non-cash
consideration initially received or otherwise), net of underwriting discounts
and commissions or placement fees, investment banking fees, legal fees,
consulting fees, accounting fees and other customary fees and expenses directly
incurred by any Credit Party in connection therewith (other than those payable
to any Credit Party or any Affiliate of any such Person).
"Note" or "Notes" shall mean, collectively, the Revolving Notes, the Term
Notes and the Acquisition Notes.
"Notice of Extension/Conversion" shall mean the written notice of extension
or conversion in substantially the form of Exhibit G, as required by Section
3.2.
"Notice of Revolving Borrowing" shall mean a written notice of borrowing in
substantially the form of Exhibit E, as required by Section 2.1(b)(i).
"Operating Lease" shall mean, as applied to any Person, any lease
(including leases which may be terminated by the lessee at any time) of any
Property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Other Taxes" shall have the meaning assigned to such term in Section
3.10(b).
"Overdraft Agreement" shall mean the Advised Revocable Current Line U.S.
Dollar Multicurrency Overdraft Facility Repayable On Demand dated November 3,
2004 by and between Bank One, NA (London Branch) (or its successors or assigns),
as Lender, and ▇▇▇▇▇▇ International Holdings Limited in the amount of up to U.S.
$5,000,000.
"Participation Interest" shall mean a purchase by a Lender of a
participation in any Loans or other obligations as provided in Section 3.13.
18
"Payment Date" shall mean the last Business Day of each March, June,
September and December of each year.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" shall mean an acquisition by the Borrower or any
Wholly Owned Domestic Subsidiary of the Borrower of the Capital Stock or all or
substantially all of the Property of another Person (including by merger or
consolidation or by incorporation of a new Subsidiary) for up to the fair market
value of the Capital Stock or Property acquired, provided, that, (a) the Capital
Stock or Property acquired in such acquisition relates directly to or is
strategically related to the business of the Borrower or any of its Subsidiaries
as existing on the Effective Date, (b) any Indebtedness issued, incurred or
assumed by the Borrower and its Subsidiaries on a consolidated basis from such
acquisition (as permitted hereunder) shall not in the aggregate exceed
$10,000,000, (c) the Agent shall have received all items in respect of the
Capital Stock or Property acquired in such acquisition (and/or the seller
thereof) required to be delivered by the terms of Section 6.11, (d) in the case
of an acquisition of the Capital Stock of another Person, (i) the board of
directors (or other comparable governing body) of such other Person shall have
duly approved such acquisition and (ii) the Capital Stock acquired shall
constitute 100% of the Total Voting Power and ownership interest of the issuer
thereof, (e) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
acquisition and the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
acquisition on a Pro Forma Basis, the Borrower shall be in compliance with all
of the financial covenants set forth in Section 7.18 as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which
precedes or ends on the date of such acquisition and with respect to which the
Agent has received the Required Financial Information, (f) the representations
and warranties made by the Credit Parties in each Credit Document shall be true
and correct in all material respects as of the date of such acquisition (as if
made on such date after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects at and as of such earlier date), (g) the aggregate
consideration (including cash, assumption of indebtedness and non-cash
consideration) for any single acquisition (or series of related acquisitions)
shall not exceed $30,000,000 and the aggregate consideration (including cash,
assumption of indebtedness and non-cash consideration) for all such acquisitions
occurring during any calendar year of the Borrower during the term hereof shall
not exceed $30,000,000, (h) the aggregate cash consideration for any single
acquisition (or series of related acquisitions) shall not exceed $20,000,000 and
the aggregate cash consideration for all such acquisitions occurring during any
calendar year of the Borrower during the term hereof shall not exceed
$30,000,000; (i) if at any time the Fixed Charge Coverage Ratio as of the most
recent Computation Date was, or upon giving effect to such acquisition on a Pro
Forma Basis is, less than 1.55 to 1.00, the receipt of prior written consent
(which consent Lenders shall have no obligation to give) of the Required
Lenders;
19
and (j) the sum of the principal amount of the Term Loan, all Acquisition Loans
and any Revolving Loans specific to an acquisition shall not exceed an amount
equal to two times the cash and Cash Equivalents of the Borrower and its
Subsidiaries determined on a consolidated basis.
"Permitted Investments" shall mean Investments which consist of (a) cash or
Cash Equivalents; (b) trade accounts receivable (and related notes and
instruments) arising in the ordinary course of business in accordance with
customary trade terms; (c) Investments existing as of the Effective Date and set
forth in Schedule 1.1 A; (d) Guaranty Obligations permitted by Section 7.1; (e)
advances or loans to directors, officers, employees, agents, customers or
suppliers that do not exceed $250,000 in the aggregate at any one time
outstanding for all of the Borrower and its Subsidiaries; (f) Investments by the
Borrower or any Wholly Owned Subsidiary in Subsidiaries of the Borrower or by
any Subsidiary in the Borrower evidenced by Intercompany Notes pledged to the
Agent for the benefit of the Secured Parties; provided, that, (i) the aggregate
principal amount of such Intercompany Notes issued by Foreign Subsidiaries of
the Borrower to the Borrower or to any Domestic Subsidiary of the Borrower and
outstanding at any time shall not exceed $10,000,000 in the aggregate, (ii) no
Investments shall be made in the Capital Stock of any Foreign Subsidiary except
as a Permitted Acquisition; and (iii) Investments in a Wholly Owned Subsidiary
are permitted only so long as such person remains a Wholly Owned Subsidiary; or
(g) Permitted Acquisitions.
"Permitted Liens" shall mean (a) Liens in favor of the Agent on behalf of
the Secured Parties; (b) Liens (other than Liens created or imposed under ERISA)
for taxes or other governmental charges, assessments or levies which are not yet
due or are being contested in good faith by appropriate proceedings diligently
pursued and for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof); (c) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided, that, such Liens secure only amounts which are not yet due and payable
(or, if due and payable, are unfiled and no other action has been taken to
enforce the same) or are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof); (d) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by the Borrower or any of its Subsidiaries in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of Indebtedness); (e) Liens in connection with
attachments or judgments (including judgment or appeal bonds); provided, that,
the judgments secured shall, within thirty (30) days after the entry thereof,
have been discharged or
20
execution thereof stayed pending appeal (and shall have been discharged within
thirty (30) days after the expiration of any such stay); (f) easements,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property for its intended
purposes; (g) Liens on Property securing Purchase Money Indebtedness (including
Capital Leases) to the extent permitted under Section 7.1, provided, that, (i)
any such Indebtedness is incurred and such Lien attaches to such Property
concurrently with or within ninety (90) days after the acquisition thereof and
(ii) such Indebtedness is not secured by a Lien on any other assets; (h) any
interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases (excluding Capital Leases) permitted by this
Agreement; (i) Liens existing as of the Effective Date and set forth on Schedule
1.1B; provided, that (A) no such Lien shall at any time be extended to or cover
any Property other than the Property subject thereto on the Effective Date and
(B) the principal amount of the Indebtedness secured by such Liens shall not be
extended, renewed, refunded or refinanced; and (j) Liens in connection with the
Overdraft Agreement.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority or any other entity.
"Plan" shall mean any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which any Credit Party or
any ERISA Affiliate is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" within the meaning of
Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement dated the Effective Date
among the Borrower, the Subsidiaries and the Agent, for the benefit of the
Secured Parties, as it may be amended, modified, restated or supplemented from
time to time.
"Pricing Level" shall mean, as of any day, the applicable pricing level as
set forth in the definition of Applicable Percentage.
"Prime Rate" shall mean the per annum rate of interest established from
time to time by JPMorgan Chase Bank, N.A. as its prime rate, which rate may not
be the lowest rate of interest charged by JPMorgan Chase Bank, N.A. to its
customers.
"Preferred Stock", as applied to the Capital Stock of any person, shall
mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over the Capital Stock of any other class of
such person.
21
"Pro Forma Basis" shall mean that, for purposes of calculating compliance
in respect of any transaction with each of the financial covenants set forth in
Section 7.18, such transaction (and any other transaction which occurred during
the relevant four-fiscal quarter period) shall be deemed to have occurred as of
the first day of the most recent period of four consecutive fiscal quarters of
the Borrower preceding the date of such transaction with respect to which the
Agent has received the Required Financial Information. As used in this
definition, "transaction" shall mean (a) any incurrence or assumption of
Indebtedness (and the concurrent retirement of any other Indebtedness) as
referred to in Section 7.1(d)(i), (b) any merger or consolidation as referred to
in Section 7.4(c), (c) any Asset Disposition of a business or business unit as
referred to in Section 7.5(a) or (d) any Permitted Acquisition referred to in
Section 7.6. With respect to any transaction of the type described in clause (a)
above regarding Indebtedness which has a floating or formula rate, the implied
rate of interest for such Indebtedness for the applicable period for purposes of
this definition shall be determined by utilizing the rate which is or would be
in effect with respect to such Indebtedness as at the relevant date of
determination. With respect to any transaction of the type described in clause
(b) or (d) above, any Indebtedness incurred by the Borrower or any of its
Subsidiaries in order to consummate such transaction (and any other transaction
which occurred during the relevant four-fiscal quarter period) (A) shall be
deemed to have been incurred on the first day of the relevant four
fiscal-quarter period and (B) if such Indebtedness has a floating or formula
rate, then the implied rate of interest for such Indebtedness for the applicable
period for purposes of this definition shall be determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination. In connection with any calculation of the
financial covenants set forth in Section 7.18 upon giving effect to a
transaction on a Pro Forma Basis for purposes of Section 7.1(d)(i), Section
7.4(c), Section 7.5 or Section 7.6, as applicable:
i. for purposes of any such calculation in respect of any incurrence or
assumption of Indebtedness (and to the concurrent retirement of any
other Indebtedness) as referred to in Section 7.1(d)(i), any such
Indebtedness which is retired shall be excluded and deemed to have
been retired as of the first day of the relevant four fiscal quarter
period;
ii. for purposes of any such calculation in respect of any Asset
Disposition of a business or business unit as referred to in Section
7.5, (A) income statement items (whether positive or negative)
attributable to the Property disposed of in such Asset Disposition
shall be excluded to the extent relating to any period prior to the
date of such transaction and (B) any Indebtedness which is retired in
connection with such Asset Disposition shall be excluded and deemed to
have been retired as of the first day of the relevant four
fiscal-quarter period; and
iii. for purposes of any such calculation in respect of any merger or
consolidation as referred to in Section 7.4(c) or any Permitted
Acquisition as referred to in Section 7.6, (A) any Indebtedness
incurred by the Borrower or any of its Subsidiaries in connection with
such transaction
22
shall be deemed to have been incurred as of the first day of the
relevant four fiscal-quarter period and (B) income statement items
(whether positive or negative) attributable to the Property acquired
in such transaction or to the Investment comprising such transaction,
as applicable, shall be included to the extent relating to the
relevant four fiscal-quarter period.
"Pro Forma Compliance Certificate" shall mean a certificate of the chief
financial officer of the Borrower (as to which there shall be no individual, as
opposed to corporate, liability) delivered to the Agent in connection with (a)
any incurrence or assumption of Indebtedness (and the concurrent retirement of
any other Indebtedness) as referred to in Section 7.1 (d)(i), (b) any merger or
consolidation as referred to in Section 7.4(c), (c) any Asset Disposition as
referred to in Section 7.5(a) or (d) any Permitted Acquisition as referred to in
Section 7.6, as applicable, and containing reasonably detailed calculations,
upon giving effect to the applicable transaction on a Pro Forma Basis, of the
Fixed Charge Coverage Ratio and the Leverage Ratio as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which
precede or end on the date of the applicable transaction and with respect to
which the Agent shall have received the Required Financial Information.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Purchase Money Indebtedness" shall mean Indebtedness (including Capital
Leases) incurred by the Borrower and any of its Subsidiaries to finance the
purchase of fixed assets; provided, that (i) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed and (ii) such
Indebtedness is issued and any liens securing such Indebtedness are created at
the time of, or within 90 days after, the acquisition of such assets and such
Indebtedness is not secured by a lien on any other assets.
"Reaffirmation Agreement" shall mean the Reaffirmation Agreement dated the
Amendment Date executed by Guarantors in favor of the Agent, in form of Exhibit
K, as amended, modified, restated or supplemented from time to time.
"Receivables" shall mean all accounts (as that term is defined in the UCC),
accounts receivable, chattel paper, contract rights, documents and instruments
of the Borrower or any of its Domestic Subsidiaries; all other obligations or
indebtedness owed to Borrower or any of its Domestic Subsidiaries from whatever
source arising; all guarantees of any of the foregoing and all security
therefor; all of the right, title and interest of Borrower or any of its
Domestic Subsidiaries in and with respect to the goods, services or other
property which gave rise to or which secure any of the foregoing and all
insurance policies and proceeds relating thereto; all of the foregoing whether
now owned by Borrower or any of its Domestic Subsidiaries or hereafter acquired
or in existence.
23
"Register" shall have the meaning assigned to such term in Section 10.3(c).
"Regulation T, U or X" shall mean Regulation T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Reinvestment Funds" shall mean, with respect to any Insurance Proceeds
from a Casualty or any Condemnation Award from a Condemnation, that portion of
such funds as shall, according to a certificate of a Responsible Officer of the
Borrower delivered to the Agent within thirty (30) days after the occurrence of
such Casualty or Condemnation (and in any case prior to the receipt thereof by
any Credit Party), be reinvested in the repair, restoration or replacement of
the properties and assets that were the subject of such Casualty or
Condemnation; provided, that (a) the aggregate amount of such proceeds with
respect to any such event or series of related events shall not exceed
$10,000,000, (b) such certificate shall be accompanied by evidence reasonably
satisfactory to the Agent that any Property subject to such Casualty or
Condemnation has been or will be repaired, restored or replaced to its condition
immediately prior to such Casualty or Condemnation, (c) pending such
reinvestment, the entire amount of such proceeds shall be deposited in an
account with the Agent for the benefit of the Secured Parties, over which the
Agent shall have sole control and exclusive right of withdrawal, (d) from and
after the date of delivery of such certificate, the Borrower shall diligently
proceed, in a commercially reasonable manner, to complete the repair,
restoration or replacement of the Properties and assets that were the subject of
such Casualty or Condemnation as described in such certificate and (e) no
Default or Event of Default shall have occurred and be continuing; and provided
further that, if any of the foregoing conditions shall cease to be satisfied at
any time, such funds shall no longer be deemed Reinvestment Funds and such funds
shall immediately be applied to prepayment of the Credit Obligations in
accordance with Section 3.3(b).
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Materials of Environmental Concern).
"Renewal Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"Required Financial Information" shall mean, with respect to any period,
the financial statements of the Borrower with respect to such period as required
pursuant to Section 6.1(a) and 6.1(b) .
24
"Required Lenders" shall mean, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Agent) and
holding in the aggregate more than eighty percent (80%) of the total of the
Revolving Commitments held by all such Lenders. For purposes of the foregoing,
(A) the interest of any Lender holding a Loan in which any other Lender has a
Participation Interest pursuant to Section 3.13 shall be calculated net of all
such Participation Interests of other Lenders and (B) the Participation Interest
of any Lender pursuant to Section 3.13 in a Loan held by any other Lender shall
be counted as if such Lender holding such Participation Interest held a
proportionate part of the related Loan directly.
"Requirement of Law" shall mean, as to any Person, the certificate or
articles of incorporation and by-laws or regulations or other organizational or
governing documents of such Person, and any law, treaty, rule, regulation order,
writ, judgment, injunction, decree, permit or determination of an arbitrator or
a court or other Governmental Authority or other restriction imposed by any
Governmental Authority, in each case applicable to or binding upon such Person
or to which any of its Property is subject.
"Reserve Requirement" shall mean, at any time, the maximum rate at which
reserves (including any marginal, special, supplemental, or emergency reserves)
are required to be maintained under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurocurrency Liabilities" (as such
term is used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (a) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate is to be determined
or (b) any category of extensions of credit or other assets which include
Eurodollar Loans. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Reserve Requirement.
"Responsible Officer" shall mean, as to any Person, the president, chief
executive officer, chief operating officer, any financial officer, any vice
president, the treasurer, or the general counsel of such Person (or, in the case
of a partnership, the managing general partner of such Person). It is understood
that any certificate delivered to the Agent or the Lenders hereunder by a
Responsible Officer shall be given by the Person in his or her capacity as an
officer, and not in any individual capacity that imparts personal liability to
such Person.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any class of Capital Stock of any Credit
Party, now or hereafter outstanding, (b) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any class of Capital Stock of any Credit Party, now or hereafter
outstanding and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire any class of
Capital Stock of any Credit Party, now or hereafter outstanding.
25
"Revolving Commitment" shall mean, with respect to any Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Commitment Percentage of the Revolving
Committed Amount, to make Revolving Loans in accordance with the provisions of
Section 2.1 (a).
"Revolving Committed Amount" shall have the meaning assigned to that term
in Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to that term in Section
2.1(a).
"Revolving Maturity Date" shall mean May 30, 2008, unless extended for an
additional one-year period upon written notice from Borrower to Agent not more
than 180 days nor less than 90 days preceding the initial Revolving Maturity
Date, and receipt of written consent thereto by all the Lenders which consent
Lenders shall have no obligation to give.
"Revolving Notes" shall mean the promissory notes of the Borrower provided
pursuant to Section 2.1(e), in the form of Exhibits A-1 and A-2, in favor of
each of the applicable Lenders evidencing the Revolving Loans, individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" shall mean any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Credit Party of any Property, whether owned by any Credit
Party as of the Effective Date or later acquired, which has been or is to be
sold or transferred by any Credit Party to such Person or to any other Person
from whom funds have been, or are to be, advanced by such Person on the security
of such Property.
"Secured Parties" shall mean (a) the Lenders, (b) the Agent, in its
capacity as such under each Credit Document, (c) each Lender or Affiliate
thereof with which the Borrower or any of its Subsidiaries enters into a Lender
Hedging Agreement as permitted hereunder, in its capacity as a party to such
Lender Hedging Agreement, (d) the beneficiaries of each indemnification
obligation undertaken by any Credit Party under any Credit Document and (e) the
successors and permitted assigns of the foregoing.
"Securities Pledge Agreement(s)" shall mean, the Amended and Restated
Pledge Agreement dated as of the Amendment date in the form attached hereto as
Exhibit L.
"Single Employer Plan" shall mean any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
26
"Solvent" or "Solvency" shall mean, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities as they mature in their ordinary
course, taking into account the timing of and amounts of cash to be received by
such Person and the timing of and amounts of cash to be payable on or in respect
of debts and liabilities of such Person, (c) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's Property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the fair value of
the Property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person and (e) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts and
liabilities as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that either probably will become or
that is reasonably possible to become an actual or matured liability.
"Subsidiary" shall mean, as to any Person, (a) any corporation more than
50% of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture,
limited liability company or other business entity in which such Person directly
or indirectly through Subsidiaries has more than 50% of the interest at any
time.
"Taxes" shall have the meaning assigned to such term in Section 3.10(a).
"Term Loan" shall have the meaning assigned to that term in Section 2.4(a).
"Term Maturity Date" shall mean March 31, 2007.
"Term Notes" shall mean the promissory notes of the Borrower provided
pursuant to Section 2.4(b), in the form of Exhibits B-1 and B-2, in favor of
each of the applicable Lenders evidencing the Term Loan, individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"Total Voting Power" with respect to any Person on any date shall mean the
total number of votes which may be cast in the election of directors of such
Person at any meeting of stockholders of such Person if all securities entitled
to vote in the election of Directors of such Person (on a fully diluted basis,
assuming the exercise, conversion or
27
exchange of all rights, warrants, options and securities outstanding on such
date which are or may thereafter become exercisable for, exchangeable for or
convertible into, such voting securities) were present and voted at such meeting
(other than votes that may be cast only upon the happening of a contingency).
"Type", with respect to a Loan, refers to whether such Loan is a Eurodollar
Loan or a Base Rate Loan.
"UCC" shall mean the Uniform Commerce Code as in effect in the State of
Ohio.
"Wholly Owned Subsidiary" of any Person shall mean any Subsidiary 100% of
whose Capital Stock (on a fully diluted basis) is at the time owned by such
Person directly or indirectly through other Wholly Owned Subsidiaries; provided,
that, if any Foreign Subsidiary is required by law to issue a qualifying share
to a director and such qualifying share (a) is non-voting Capital Stock of such
Foreign Subsidiary and (b) represents less than one percent (1%) of the total
outstanding Capital Stock of such Foreign Subsidiary, such Foreign Subsidiary
shall be deemed a Wholly Owned Subsidiary.
1.2 Computation of Time Periods. For purposes of computation of periods of
time hereunder, the word "from" shall mean "from and including" and the words
"to" and "until" each mean "to but excluding."
1.3 Accounting Terms. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise expressly provided
herein) be made by application of GAAP applied on a basis consistent with the
most recent annual or quarterly financial statements delivered pursuant to
Section 6.1; provided, that, if (i) the Borrower shall object to determining
such compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with respect
thereto after the Effective Date or (ii) the Agent or the Required Lenders shall
so object in writing within ninety (90) days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Borrower to the Lenders as to
which no such objection shall have been made.
1.4 Terms Generally. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Sections, Exhibits and Schedules shall be deemed references to Sections of, and
Exhibits and Schedules to, this Agreement
28
unless the context shall otherwise require. Unless otherwise expressly provided
herein, the word "day" means a calendar day.
SECTION 2.
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, each
Lender severally agrees to make available to the Borrower such Lender's
Commitment Percentage of revolving credit loans requested by the Borrower in
Dollars ("Revolving Loans") from time to time from the Effective Date until the
Maturity Date, or such earlier date as the Revolving Commitments shall have been
terminated as provided herein; provided, that, the sum of the aggregate
principal amount of outstanding Revolving Loans shall not at any time exceed
TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00) (as such aggregate maximum
amount may be reduced from time to time as provided in Section 2.3 and Section
3.4, the "Revolving Committed Amount"); provided, further, with regard to each
Lender individually, that such Lender's outstanding Revolving Loans shall not at
any time exceed such Lender's Commitment Percentage of the Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, that, no more
than six (6) Eurodollar Loans shall be outstanding under this Agreement at any
time. For purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings of Eurodollar Loans may, in accordance with the
provisions hereof, be combined through extensions or conversions at the end of
existing Interest Periods to constitute a single new Eurodollar Loan with the
same Interest Period. Revolving Loans hereunder may be repaid and reborrowed in
accordance with the provisions of this Agreement.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by written notice (or telephonic notice promptly confirmed in
writing), in the form of a Notice of Revolving Borrowing attached hereto as
Exhibit E, to the Agent not later than 12:00 Noon (Cincinnati, Ohio time) on the
Business Day on the date of the requested borrowing in the case of Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such request for borrowing shall
be irrevocable and shall specify (A) that a Revolving Loan is requested, (B) the
date of the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a combination thereof, and if
Eurodollar Loans are requested, the Interest Period(s) therefor; provided
however, any Revolving Loan the proceeds of which will be applied to the payment
of all or any
29
portion of a Permitted Acquisition (an "Acquisition Borrowing") shall be and
remain a Base Rate Loan or a Eurodollar Loan from the date thereof through
conversion to an Acquisition Loan in accordance with Section 2.3 hereof. If the
Borrower shall fail to specify in any such Notice of Revolving Borrowing (y) an
applicable Interest Period in the case of a Eurodollar Loan, then such notice
shall be deemed to be a request for an Interest Period of one (1) month, or (z)
the Type of Revolving Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan hereunder. The Agent shall give notice to each
Lender promptly upon receipt of each Notice of Revolving Borrowing pursuant to
this Section 2.1(b)(i), the contents thereof and each such Lender's share of any
borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan that comprises part of
the Revolving Loans shall be in a minimum aggregate principal amount (for the
applicable Lenders, collectively) of $500,000 and integral multiples of $100,000
in excess thereof (or the then remaining amount of the Revolving Committed
Amount, if less). Each Base Rate Loan that comprises part of the Revolving Loans
shall be in a minimum aggregate principal amount (for the applicable Lenders,
collectively) of $100,000 and integral multiples of $100,000 in excess thereof
(or the then remaining amount of the Revolving Committed Amount if less).
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in Schedule 2.1(a),
or in such other manner as the Agent may designate in writing, by 3:00 P.M.
(Cincinnati, Ohio time) on the date specified in the applicable Notice of
Revolving Borrowing in Dollars and in funds immediately available to the Agent.
Such borrowing will then be made available to the Borrower by the Agent by
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Revolving Maturity Date, unless accelerated pursuant
to Section 8.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Base Rate Loans, such Base Rate Loans shall
bear interest at a per annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans
shall bear interest at a per annum rate equal to the Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (and at such other times as may be specified herein).
30
(e) Revolving Notes. The Revolving Loans made by each Lender shall be
evidenced by a duly executed promissory note of the Borrower to such Lender in
substantially the form of Exhibits A-1 and A-2 and in a principal amount equal
to such Lender's Revolving Commitment Percentage of the Revolving Committed
Amount. The Revolving Notes are in substitution of, and amend and restate in
their entirety, the Second Amended and Restated Revolving Notes dated as of May
14, 2003 in the aggregate principal amount of $10,000,000.
2.2 [Intentionally Omitted].
2.3 Acquisition Loans.
(a) Acquisition Loans. Effective on the first day of each January,
April, July and October, the principal amount of any Revolving Loan representing
an Acquisition Borrowing shall automatically convert into an Acquisition Term
Loan ("Acquisition Loan") in a principal amount equal to such Revolving Loan and
each Lender shall be deemed to convert their Commitment Percentage of such
Revolving Loan into an equal Commitment Percentage of such Acquisition Loan.
Acquisition Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request. Upon conversion of a Revolving
Loan to an Acquisition Loan, the Revolving Committed Amount shall be
automatically and permanently reduced on a dollar for dollar basis by the
initial principal amount of such Acquisition Loan. For purposes hereof,
Eurodollar Loans with different Interest Periods shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although borrowings of
Eurodollar Loans may, in accordance with the provisions hereof, be combined
through extensions or conversions at the end of the existing Interest Period to
constitute a single new Eurodollar Loan with the same Interest Period.
Acquisition Loans hereunder may not be repaid and reborrowed.
(b) Acquisition Notes. Each Acquisition Loan shall be evidenced by a duly
executed promissory note of the Borrower to each Lender in substantially the
form of Exhibit F ("Acquisition Note"). Each Acquisition Note shall provide for
consecutive equal quarterly installments of principal in an amount equal to the
original principal amount of the Acquisition Note, divided by twenty (20) and
shall have a maturity date as of the date of the twentieth quarterly payment
date. Each Acquisition Note shall bear interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate as in effect from time to time for Term Notes, such
rates to be determined in accordance with the procedures set forth in Sections
2.4(c) and (d) hereof.
2.4 Term Loan.
(a) Pursuant to the Original Credit Agreement, each Lender has severally
agreed to make Term Loans to Borrower in the initial principal amount equal to
Lender's Commitment Percentage of FIFTEEN MILLION AND NO/100 DOLLARS
($15,000,000) (the "Term Loan"). As of the date of this Agreement the
outstanding principal amount of the Term Loan is Six Million Dollars
($6,000,000).
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(b) The parties agree to evidence the Term Loan outstanding as of the
Amendment Date by secured promissory notes of the Borrower executed by duly
authorized officers thereof and in the form of Exhibits B-1 and B-2 attached
hereto (the "Term Notes"). The Term Notes shall be dated the Amendment Date and
shall be due and payable in full on or before the Term Maturity Date. The Term
Notes are in substitution of, and amend and restate in their entirety, the Term
Notes dated as of June 3, 2002 in the original aggregate principal amount of
$15,000,000.
(c) Unless the Borrowers have elected in accordance with the provisions
of paragraph (d) of this Section 2.4 to cause all or a portion of the Term Loans
to bear interest at an Adjusted Eurodollar Rate, the Term Loans shall bear
interest on the unpaid principal balance thereof at a fluctuating rate equal to
the Adjusted Base Rate.
(d) The Borrower may elect to have all or a portion of the Term Loans
which bears interest at the Adjusted Base Rate to bear interest at a rate equal
to the Adjusted Eurodollar Rate by providing a written notice (or telephonic
notice promptly confirmed in writing) in the form of Notice of Conversion
attached hereto as Exhibit G, to the Agent not later than 12:00 noon
(Cincinnati, Ohio time) on the third Business Day prior to the requested
effective date of the Adjusted Eurodollar Rate, which shall be a Business Day
(the "Effective Date") which request shall specify (i) the Effective Date, (ii)
the aggregate principal amount of the Term Loans to bear interest at the
Adjusted Eurodollar Rate, which shall be in a minimum aggregate principal amount
(for the Lenders collectively) of $500,000 and integral multiples of $100,000 in
excess thereof (or the then remaining amount of the Term Loan, if less) and
(iii) the applicable Interest Period. The Agent shall give notice to each Lender
promptly upon receipt of each Conversion of Notice pursuant to this Section
2.4(d). Notwithstanding the foregoing, there shall not be more than six
Eurodollar Rates in effect with respect to the Term Loans at any time.
(e) Interest Payments. Interest on the Term Loans shall be payable on
each Payment Date, commencing June 30, 2005.
(f) Principal Payments. Principal payments on the Term Loans shall be
due and payable in consecutive quarterly installments in the amount of $750,000
on each such Payment Date, commencing June 30, 2005, and continuing on each
Payment Date thereafter through and including March 31, 2007, with a final
payment of the entire unpaid principal balance and all accrued and unpaid
interest on the Term Maturity Date.
SECTION 3.
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the continuance, of an
Event of Default, the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other Credit
Documents
32
shall bear interest, payable on demand, at a per annum rate equal to (a) in the
case of any Loan, the rate otherwise applicable to such Loan, plus 2.00% and (b)
in the case of any other amounts owing pursuant to this Agreement, the Base Rate
plus 2.00%.
3.2 Extension and Conversion. Subject to the terms of Section 4.2, the
Borrower shall have the option, on any Business Day, to extend existing
Revolving Loans into a subsequent permissible Interest Period or to convert
Revolving Loans into Revolving Loans of another Type; provided, that (a) except
pursuant to Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
only on the last day of the Interest Period applicable thereto, (b) Eurodollar
Loans may be extended, and Base Rate Loans may be converted into Eurodollar
Loans, only if no Default or Event of Default is in existence on the date of
extension or conversion, (c) Revolving Loans extended as, or converted into,
Eurodollar Loans shall be subject to the terms of the definition of "Interest
Period" set forth in Section 1.1 and shall be in such minimum amounts as
provided in Section 2.1(b)(ii), (d) the total number of Eurodollar Loans
outstanding at any time shall be no greater than the maximum number provided in
Section 2.1(a) (it being understood that, for purposes hereof, Eurodollar Loans
with different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings may, in
accordance with the provisions hereof, be combined through extensions or
conversions at the end of existing Interest Periods to constitute a single new
Eurodollar Loan with the same Interest Period) and (e) any request for extension
or conversion of a Eurodollar Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one (1) month.
Each such extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion in the form of Exhibit G hereto (or telephonic
notice promptly confirmed in writing) to the office of the Agent specified in
specified in Schedule 2.1(a), or at such other office as the Agent may designate
in writing, prior to 12:00 Noon (Cincinnati, Ohio time) on the Business Day of,
in the case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on
the third Business Day prior to, in the case of the extension of a Eurodollar
Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of
the proposed extension or conversion, specifying the date of the proposed
extension or conversion, the Revolving Loans to be so extended or converted, the
Types of Revolving Loans into which such Revolving Loans are to be converted
and, if appropriate, the applicable Interest Periods with respect thereto. Each
request for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in Section
4.2. In the event the Borrower fails to request an extension or conversion of
any Eurodollar Loan in accordance with this Section 3.2, or any such requested
conversion or extension is not permitted by this Agreement, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion of any
Revolving Loan. Each extension or conversion shall be effected by each Lender
and the Agent by recording for the account of such Lender the new Revolving Loan
of such Lender resulting from such extension or conversion and reducing the
Revolving Loan (or portion thereof) of such Lender being extended or converted
by an equivalent principal amount.
33
Accrued interest on a Revolving Loan (or portion thereof) being extended or
converted shall be paid by the Borrower (A) with respect to any Base Rate Loan
being converted to a Eurodollar Loan, on the last day of the first fiscal
quarter of the Borrower ending on or after the date of conversion and (B)
otherwise, on the date of extension or conversion.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time, subject to Section 3.11 but
otherwise without premium or penalty; provided, that (i) each partial prepayment
of Eurodollar Loans shall be in a minimum principal amount of $500,000 and
integral multiples of $100,000 and each prepayment of Base Rate Loans shall be
in a minimum principal amount of $100,000 and integral multiples of $100,000,
and (ii) the Borrower shall have given prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the Agent,
in the case of a Base Rate Loan by 12:00 Noon (Cincinnati, Ohio time), on the
date of prepayment and, in the case of a Eurodollar Loan, by 11:00 A.M.
(Cincinnati, Ohio time), at least three (3) Business Days prior to the date of
prepayment. Each notice of prepayment shall specify the prepayment date, the
principal amount to be prepaid, whether the Loan to be prepaid is a Eurodollar
Loan or Base Rate Loan and, in the case of a Eurodollar Loan, the Interest
Period of such Loan. Each notice of prepayment shall be irrevocable and shall
commit the Borrower to prepay such Loan by the amount stated therein on the date
stated therein. Subject to the foregoing terms, amounts prepaid under this
Section 3.3(a) shall be applied as the Borrower may elect; provided, that, if
the Borrower fails to specify the application of a voluntary prepayment then
such prepayment shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities. All prepayments under this
Section 3.3(a) shall be subject to Section 3.11.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time, the sum of the
aggregate principal amount of outstanding Revolving Loans shall exceed the
Revolving Committed Amount, the Borrower immediately shall prepay, within one
(1) day of such occurrence, the Loans in an aggregate amount sufficient to
eliminate such excess. Any payments pursuant to this Section 3.3(b)(i) shall be
applied as set forth in clause (iv) below.
(ii) Asset Dispositions. Immediately upon the occurrence of any Asset
Disposition (other than Excluded Asset Dispositions), the Borrower shall prepay
the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of the
related Asset Disposition. Any payments pursuant to this Section 3.3(b)(ii)
shall be applied as set forth in clause (iv) below.
(iii) Debt Issuances. Immediately upon the occurrence of any Debt
Issuance (other than Indebtedness permitted by Section 7.1(a) through (e)
inclusive, 7.1(g) and 7.1(h)), the Borrower shall prepay the Loans in an
aggregate
34
amount equal to 100% of the Net Cash Proceeds of such Debt Issuance. Any
payments pursuant to this Section 3.3(b)(iii) shall be applied as set forth in
clause (iv) below.
(iv) Application of Mandatory Prepayments. Prepayments shall be
applied first ratably to the Term Loans and Acquisition Loans in inverse order
of maturity, second to the Base Rate Revolving Loans and then, subject to
subsection (v) below, to Eurodollar Revolving Loans in direct order of Interest
Period maturities. All prepayments under this Section 3.3(b) shall be subject to
Section 3.11. All prepayments under this Section 3.3(b) shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.
(v) Prepayment Accounts. Amounts to be applied as provided in
subsection (iv) above to the prepayment of Loans (i) shall be applied first to
reduce ratably outstanding Term Loans and Acquisition Loans in inverse order of
maturity; (ii) second, any amount remaining after such deposit, shall be applied
to reduce the Base Rate Revolving Loans; and (iii) third, any amounts remaining
after such application shall, at the option of the Borrower, be applied to
prepay Eurodollar Revolving Loans immediately and/or shall be deposited in a
separate prepayment account for the Eurodollar Revolving Loans. The Agent shall
apply any cash deposited in the Prepayment Account for any Loans to prepay
Eurodollar Loans on the last day of their respective Interest Periods (or, at
the direction of the Borrower, on any earlier date) until all outstanding Loans
have been prepaid or until all the allocable cash on deposit in the Prepayment
Account has been exhausted. For purposes of this Agreement, the term "Prepayment
Account" for any Loans shall mean an account established by the Borrower with
the Agent and over which the Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal for application in accordance with
this subsection. The Agent will, at the request of the Borrower, invest amounts
on deposit in the Prepayment Account for any Loans in Cash Equivalents that
mature prior to the last day of the applicable Interest Periods of the
Eurodollar Loans to be prepaid; provided, that (i) the Agent shall not be
required to make any investment that, in its sole judgment, would require or
cause the Agent to be in, or would result in any, violation of any law, statute,
rule or regulation, (ii) such Cash Equivalents shall be subjected to a first
priority perfected security interest in favor of the Agent and (iii) if an Event
of Default shall have occurred and be continuing, the selection of such
investments shall be in the sole discretion of the Agent. The Borrower shall
indemnify the Agent for any losses, other than losses due solely to the Agent's
gross negligence, relating to the investments so that the amount available to
prepay Eurodollar Loans on the last day of the applicable Interest Periods is
not less than the amount that would have been available had no investments been
made pursuant thereto. Other than any interest or profits earned on such
investments, the Prepayment Accounts shall not bear interest. Interest or
profits, if any, on the investments in any Prepayment Account shall accumulate
in such Prepayment Account. If the maturity of the Loans has been accelerated
pursuant to Section 8.2, the Agent may, in its sole discretion, apply all
amounts on deposit in the Prepayment Account for any Loans to satisfy any of the
Credit Obligations related to such Loans. The Borrower hereby pledges and
assigns to the Agent, for its benefit and
35
the benefit of the Lenders, each Prepayment Account established hereunder to
secure the Credit Obligations related to such Loans.
(vi) Notice. The Borrower shall give to the Agent and the Lenders at
least five (5) Business Days' prior written or telecopy notice of each and every
event or occurrence requiring a prepayment under Section 3.3(b)(ii) and (iii),
including the amount of Net Cash Proceeds expected to be received therefrom and
the expected schedule for receiving such proceeds; provided, that in the case of
any prepayment event consisting of a Casualty or Condemnation, the Borrower
shall give such notice within five (5) Business Days after the occurrence of
such event.
3.4 Termination and Reduction of Commitments.
(a) Voluntary Reductions. The Borrower may from time to time permanently
reduce or terminate the Revolving Committed Amount in whole or in part (in
minimum aggregate amounts of $500,000 or in integral multiples of $100,000 in
excess thereof (or, if less, the full remaining amount of the then applicable
Revolving Committed Amount)) upon five (5) Business Days' prior written or
telecopy notice to the Agent; provided, that, no such termination or reduction
shall be made which would cause the sum at any time of the aggregate principal
amount of outstanding Revolving Loans to exceed the Revolving Committed Amount
as so terminated or reduced, unless, concurrently with such termination or
reduction, the Loans are repaid to eliminate such excess. The Agent shall
promptly notify each affected Lender of the receipt by the Agent of any notice
from the Borrower pursuant to this Section 3.4(a).
(b) Mandatory Reductions.
(i) Acquisition Loans. On any date that an Acquisition Loan is made
to Borrower pursuant to Section 2.3, the Revolving Committed Amount shall be
automatically and permanently reduced by the aggregate principal amount of such
Acquisition Loan.
(ii) Loan Prepayment Reductions. Unless otherwise consented by the
Required Lenders, on any date that the Loans are required to be prepaid (or
would be so required if any Loans were outstanding) pursuant to Section
3.3(b)(iii), the Revolving Committed Amount shall be automatically and
permanently reduced by the total amount of such required prepayments (and, in
the event that the amount of any payment referred to in Section 3.3(b)(iii)
which is allocable to the Credit Obligations exceeds the amount of all
outstanding Credit Obligations, the Revolving Committed Amount shall be further
reduced by 100% of such excess).
(c) Maturity Date. The Revolving Commitments of the Lenders shall
automatically terminate on the Revolving Maturity Date.
(d) General. The Borrower shall pay to the Agent for the account of the
Lenders in accordance with the terms of Section 3.5(a), on the date of each
termination or reduction of the Revolving Committed Amount, the Facility Fee
accrued through the
36
date of such termination or reduction on the amount of the Revolving Committed
Amount so terminated or reduced.
3.5 Fees.
(a) Renewal Fee. In consideration of the Loans of the Lenders hereunder,
the Borrower agrees to pay to the Agent for the account of each Lender a one
time renewal fee (the "Renewal Fee") equal to 0.15% of the Revolving Committed
Amount. The Renewal Fee shall be payable in full on the Amendment Date and shall
be fully earned when paid and nonrefundable for any reason.
(b) Facility Fee. In consideration of the Revolving Commitments of the
Lenders hereunder, the Borrower agrees to pay to the Agent for the account of
each Lender a fee (the "Facility Fee") on such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount computed for each day during the
applicable Facility Fee Calculation Period at a per annum rate equal to the
Applicable Percentage in effect from time to time. The Facility Fee shall
commence to accrue on the Effective Date and shall be due and payable in arrears
on the last business day of each March, June, September and December (and any
date that the Revolving Committed Amount is reduced as provided in Section
3.4(a) or (b) and the Maturity Date) for the immediately preceding quarter or
portion thereof (each such quarter or portion thereof being herein referred to
as an "Facility Fee Calculation Period"), beginning with the first of such dates
to occur after the Effective Date.
(c) Agent Fees. The Borrower agrees to pay to the Agent, for its own
account, an agency fee in the amount of $15,000 annually, payable on May 31 of
each year. Such fees shall be in addition to reimbursement of the Agent's
reasonable out-of-pocket expenses pursuant to Section 10.5 hereof.
3.6 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law, rule,
or regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to
any tax, duty, or other charge with respect to any Eurodollar Loans, any of its
Notes, or its obligation to make Eurodollar Loans, or change the basis of
taxation of any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or any of its Notes in respect of any Eurodollar
Loans (other than franchise taxes and taxes imposed on the overall net income,
gross receipts or revenues of such
37
Lender by the jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, compulsory loan, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted Eurodollar
Rate) relating to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or its Applicable
Lending Office), including any of the Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or on the London interbank market any other condition affecting this Agreement
or any of its Notes or any of such extensions of credit or liabilities or
commitments; and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making, converting into,
extending, or maintaining any Eurodollar Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or any of its Notes with respect to any Eurodollar Loans, then the
Borrower shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any Lender
requests compensation by the Borrower under this Section 3.6, the Borrower may,
by notice to such Lender (with a copy to the Agent), suspend the obligation of
such Lender to make or extend Loans of the Type with respect to which such
compensation is requested, or to convert Loans of any other Type into Loans of
such Type, until the event or condition giving rise to such request ceases to be
in effect (in which case the provisions of Section 3.9 shall be applicable);
provided, that, such suspension shall not affect the right of such Lender to
receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have reasonably
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 3.6 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be
38
otherwise disadvantageous to it. Any Lender claiming compensation under this
Section 3.6 shall furnish to the Borrower and the Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
3.7 Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Loan:
(a) the Agent determines (which determination shall be conclusive) that
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans for such Interest Period; then the Agent shall give the Borrower prompt
notice thereof specifying the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, extend Eurodollar Loans or to convert Base Rate
Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of the
then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Loans or convert such Loans into Base Rate Loans in accordance with
the terms of this Agreement.
3.8 Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender
shall promptly notify the Borrower thereof and such Lender's obligation to make
or extend Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.9 shall be
applicable).
3.9 Treatment of Affected Loans. If the obligation of any Lender to make
Eurodollar Loans or to extend, or to convert Base Rate Loans into, Eurodollar
Loans shall be suspended pursuant to Section 3.6 or 3.8 hereof (Revolving Loans
of such Type being herein called "Affected Loans" and such Type being herein
called the "Affected Type"), such Lender's Affected Loans shall be automatically
converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for Affected Loans (or, in the case of a conversion required by
Section 3.8 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 3.6 or 3.8
hereof that gave rise to such conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its Base
Rate Loans; and
39
(b) all Loans that would otherwise be made or extended by such Lender as
Loans of the Affected Type shall be made or extended instead as Base Rate Loans,
and all Loans of such Lender that would otherwise be converted into Loans of the
Affected Type shall be converted instead into (or shall remain as) Base Rate
Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.6 or 3.8 hereof that gave rise to the
conversion of such Lender's Affected Loans pursuant to this Section 3.9 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
3.10 Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any other Credit Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its income, gross receipts and revenues and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender (or
its Applicable Lending Office) or the Agent (as the case may be) is organized or
any political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable under this Agreement or any other
Credit Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.10) such
Lender or the Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Agent, at the office of the Agent specified in
Schedule 2.1(a), the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies (including mortgage recording taxes and similar taxes)
which arise from any payment made under this Agreement or any other Credit
Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any other Credit Document (hereinafter referred to as "Other
Taxes").
40
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this Section 3.10) paid
by such Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 3.10(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 3.10(a) or
3.10(b) with respect to Taxes imposed by the United States; provided, that,
should a Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.10, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the reasonable judgment of such Lender, is
not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
41
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.10 shall survive the termination of the Commitments and the
payment in full of the Notes.
3.11 Compensation. Upon the request of any Lender, the Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or extension of a Eurodollar Loan for any
reason (including the acceleration of the Loans pursuant to Section 8.2) on a
date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including the failure of
any condition precedent specified in Section 4 to be satisfied) to borrow,
convert, extend, or prepay, as applicable, a Eurodollar Loan on the date for
such borrowing, conversion, extension, or prepayment specified in the relevant
notice of borrowing, prepayment, extension, or conversion, all as provided under
this Agreement; or
(c) without duplication of any amounts paid under Section 3.11 (a) and
(b), any breakage costs, charges or fees incurred by any Lender during the
period from the Closing Date through and including the date that is 180 days
from the Closing Date in respect of any Eurodollar Loan on account to any sale
or assignment of any portion of the Loans on the Commitments to a financial
institution such that the financial institution is or will become a Lender
hereunder.
3.12 Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) Revolving Loans. Each Loan, each payment or prepayment of principal of
any Loan, each payment of interest on the Loans, each payment of Facility Fees,
each reduction of the Revolving Committed Amount and each conversion or
extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding Loans and
Participation Interests.
(b) Advances. No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, that, the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations hereunder.
Unless the Agent shall have been notified by any Lender prior to the date of any
requested borrowing that such Lender does not intend to make available to the
Agent its ratable share of such borrowing to be made on such date, the Agent may
assume that such Lender has made such amount available to the Agent on the date
of such borrowing, and the Agent in reliance upon such assumption, may (in its
sole discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not
42
in fact made available to the Agent, the Agent shall be able to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Agent (and such payment by the Borrower shall be
without prejudice to Borrower's rights and remedies in respect to the defaulting
Lenders). The Agent shall also be entitled to recover from the Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered by the
Agent at a per annum rate equal to (i) from the Borrower, the applicable rate
for the applicable borrowing pursuant to the Notice of Borrowing and (ii) from a
Lender, if paid within two (2) Business Days of the date such corresponding
amount was made available by the Agent to the Borrower, the Federal Funds Rate
and, if paid thereafter, the Base Rate.
3.13 Sharing of Payments. The Lenders agree among themselves that, in the
event that any Lender shall obtain payment in respect of any Loan or any other
obligation owing to such Lender under this Agreement through the exercise of a
right of setoff, banker's lien or counterclaim, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means (whether voluntarily or involuntarily by
set-off or otherwise), in excess of its pro rata share of such payment as
provided for in this Agreement, such Lender shall promptly purchase from the
other Lenders a Participation Interest in such Loan or other obligation in such
amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Agreement. The Lenders
further agree among themselves that if payment to a Lender obtained by such
Lender through the exercise of a right of setoff, banker's lien, counterclaim or
other event as aforesaid shall be rescinded or must otherwise be restored, each
Lender which shall have shared the benefit of such payment shall, by repurchase
of a Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
pursuant to this Section 3.13 may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such Participation Interest as fully as if such Lender were a
holder of such Loan or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Agreement, if any
Lender or the Agent shall fail to remit to the Agent or any other Lender an
amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured
43
claim in lieu of a setoff to which this Section 3.13 applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders under this Section 3.13 to
share in the benefits of any recovery on such secured claim.
3.14 Payments, Computations, Etc.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in Dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any kind, at the
Agent's office specified in Schedule 2.1(a) not later than 2:00 P.M.
(Cincinnati, Ohio time) on the date when due. Payments received after such time
shall be deemed to have been received on the next succeeding Business Day. The
Agent may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice to the Borrower). The Borrower shall, at
the time it makes any payment under this Agreement, specify to the Agent the
Loans, Fees, interest or other amounts payable by the Borrower hereunder to
which such payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms hereof, the
Agent shall distribute such payment to the Lenders in such manner as the Agent
may determine to be appropriate in respect of obligations owing by the Borrower
hereunder, subject to the terms of Section 3.12(a)). The Agent will distribute
such payments to such Lenders, if any such payment is received prior to 12:00
Noon (Cincinnati, Ohio time) on a Business Day in like funds as received prior
to the end of such Business Day and otherwise the Agent will distribute such
payment to such Lenders on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day. Except as expressly provided
otherwise herein, all computations of interest and Fees shall be made on the
basis of actual number of days elapsed over a year of 360 days (or 365 or 366
days, as the case may be, in the case of Facility Fees and Base Rate Loans based
on the Prime Rate). Interest shall accrue from and include the date of
borrowing, but shall exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Agreement to the contrary, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received
by the Agent or any other Lender on account of the Credit Obligations or any
other amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including reasonable attorneys' fees but excluding the allocated cost of
internal
44
counsel) of the Agent in connection with enforcing the rights of the
Secured Parties under the Credit Documents and any protective advances made
by the Agent with respect to the Collateral under or pursuant to the terms
of the Collateral Documents;
SECOND, to payment of any Fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including reasonable attorneys' fees but excluding the cost of internal
counsel) of each of the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the Credit
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Obligations consisting of
accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the Credit
Obligations;
SIXTH, to all other Credit Obligations and other obligations which shall
have become due and payable under the Credit Documents or otherwise and not
repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whomever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
held by such Lender bears to the aggregate amount of the then outstanding
Revolving Loans of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above.
3.15 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement. Each Lender will make reasonable efforts to maintain
the accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 10.3(c),
and a subaccount for each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount, Type and Interest Period of each
such Loan hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable to each Lender hereunder and (iii) the
amount of any sum received by the
45
Agent hereunder from or for the account of the Borrower and each Lender's share
thereof. The Agent will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to promptly update such
subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if consistent
with the entries of the Agent, subsection (a)) shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, that, the failure of any Lender or the Agent to maintain any such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower to repay the Loans
made by such Lender in accordance with the terms hereof.
3.16 Interest Rate Protection. At the option of the Lenders (in the
exercise of its reasonable credit discretion) at any time, upon written notice
from Agent, Borrower shall obtain one or more Interest Rate Protection
Agreements with respect to up to fifty percent (50%) of the outstanding Term
Loan and/or Acquisition Loans. Borrower, at its sole option, may obtain one or
more Interest Rate Protection Agreements with respect to the remainder of the
outstanding Term Loan and/or Acquisition Loans.
3.17 Security Interest in the Collateral. To secure the prompt payment and
performance to Lenders of the Obligations, Borrower hereby assigns, pledges and
grants to Agent, for the ratable benefit of the Lenders a continuing security
interest in and to all of its Collateral, whether now owned or existing or
hereafter acquired or arising and wheresoever located. Borrower shall ▇▇▇▇ its
books and records as may be necessary or appropriate to evidence, protect and
perfect Agent's security interest and shall cause its financial statements to
reflect such security interest. Borrower shall promptly provide Agent with
written notice of all commercial tort claims in which the Borrower's potential
recovery exceeds $100,000, such notice to contain the case title together with
the applicable court and a brief description of the claim(s). Upon delivery of
each such notice, Borrower shall be deemed to hereby grant to Agent a security
interest and lien in and to such commercial tort claims and all proceeds
thereof.
3.18 Perfection of Security Interest. Borrower shall take all action that
may be necessary or desirable, or that Agent may reasonably request, so as at
all times to maintain the validity, perfection, enforceability and priority of
Agent's security interest in the Collateral or to enable Agent to protect,
exercise or enforce its rights hereunder and in the Collateral, including, but
not limited to: (a) immediately discharging all Liens other than Permitted
Liens, (b) delivering to Agent, endorsed or accompanied by such instruments of
assignment as Agent may specify, and stamping or marking, in such manner as
Agent may specify, any and all chattel paper, instruments, letters of credits
and advices thereof and documents evidencing or forming a part of the
Collateral, and (c) executing and delivering financing statements, control
agreements, instruments of pledge, mortgages, notices and assignments, in each
case in form and substance satisfactory to Agent, relating to the creation,
validity, perfection, maintenance or
46
continuation of Agent's security interest under the UCC or other applicable law.
By its signature hereto, Borrower hereby authorizes Agent to file against
Borrower, one or more financing, continuation, or amendment statements pursuant
to the UCC in form and substance satisfactory to Agent (which statements may
have a description of collateral which is broader than that set forth herein).
All actual charges, expenses and fees Agent may incur in doing any of the
foregoing, and any local taxes relating thereto, shall be charged to Borrower's
account as a Revolving Loan and added to the Credit Obligations, or, at Agent's
option, shall be paid to Agent immediately upon demand.
3.19 Disposition of Collateral. Borrower will safeguard and protect all
Collateral for Agent's general account and make no disposition thereof whether
by sale, lease or otherwise except as permitted pursuant to Section 7.5 hereof.
3.20 Preservation of Collateral. Following the occurrence of a Default or
Event of Default, in addition to the rights and remedies set forth in Section
8.2 hereof, Agent: (a) may at any time take such steps as Agent deems necessary
to protect Agent's interest in and to preserve the Collateral, including the
hiring of such security guards or the placing of other security protection
measures as Agent may deem appropriate; (b) may employ and maintain at any of
Borrower's premises a custodian who shall have full authority to do all acts
necessary to protect Agent's interests in the Collateral; and (c) shall have,
and is hereby granted (to the same extent as the Borrower), a right of ingress
and egress to the places where the Collateral is located, and may proceed over
and through any of Borrower's owned or leased property. Borrower shall cooperate
fully with all of Agent's efforts to preserve the Collateral and will take such
actions to preserve the Collateral as Agent may direct. All of Agent's actual
expenses of preserving the Collateral, including any expenses relating to the
bonding of a custodian, shall be charged to Borrower's account as a Revolving
Loan and added to the Credit Obligations.
3.21 Ownership of Collateral. With respect to the Collateral, at the time
the Collateral becomes subject to Agent's security interest: (a) subject to
Permitted Liens, Borrower shall be the sole owner of and fully authorized and
able to sell, transfer, pledge and/or grant a first priority security interest
in each and every item of its respective Collateral to Agent; and, except for
Permitted Liens the Collateral shall be free and clear of all Liens and
encumbrances whatsoever; (b) each document and agreement executed by Borrower or
delivered to Agent in connection with this Agreement shall be true and correct
in all respects; and (c) all signatures and endorsements of Borrower that appear
on such documents and agreements shall be genuine and Borrower shall have full
capacity to execute same.
3.22 Defense of Agent's Interests. Until (a) payment and performance in
full of all of the Credit Obligations and (b) termination of this Agreement,
Agent's interests in the Collateral shall continue in full force and effect.
During such period Borrower shall not, without Agent's prior written consent,
pledge, sell, assign, transfer, create or suffer to exist a Lien upon or
encumber or allow or suffer to be encumbered in any way except for Permitted
Liens, any part of the Collateral. Borrower shall defend Agent's interests
47
in the Collateral against any and all Persons whatsoever. At any time after the
occurrence and during the continuance of an Event of Default, Agent shall have
the right to take possession of the indicia of the Collateral and the Collateral
in whatever physical form contained, including without limitation: labels,
stationery, documents, instruments and advertising materials. If Agent exercises
this right to take possession of the Collateral, Borrower shall, upon demand,
assemble it in the best manner possible and make it available to Agent at a
place reasonably convenient to Agent. In addition, with respect to all
Collateral, Agent shall be entitled to all of the rights and remedies set forth
herein and further provided by the Uniform Commercial Code or other applicable
law. Borrower shall, and Agent may, at its option, instruct all suppliers,
carriers, forwarders, warehousers or others receiving or holding cash, checks,
Inventory, documents or instruments in which Agent holds a security interest to
deliver same to Agent and/or subject to Agent's order and if they shall come
into Borrower's possession, they, and each of them, shall be held by Borrower in
trust as Agent's trustee, and Borrower will immediately deliver them to Agent in
their original form together with any necessary endorsement.
3.23 Books and Records. Borrower shall (a) keep proper books of record and
account in which full, true and correct entries will be made of all dealings or
transactions of or in relation to its business and affairs; (b) set up on its
books accruals with respect to all taxes, assessments, charges, levies and
claims; and (c) on a reasonably current basis set up on its books, from its
earnings, allowances against doubtful Receivables, advances and investments and
all other proper accruals (including without limitation by reason of
enumeration, accruals for premiums, if any, due on required payments and
accruals for depreciation, obsolescence, or amortization of properties), which
should be set aside from such earnings in connection with its business. All
determinations pursuant to this subsection shall be made in accordance with, or
as required by, GAAP consistently applied in the opinion of such independent
public accountant as shall then be regularly engaged by Borrower.
3.24 Compliance with Laws. Borrower shall comply in all material respects
with all acts, rules, regulations and orders of any legislative, administrative
or judicial body or official applicable to its respective Collateral or any part
thereof or to the operation of Borrower's business the non-compliance with which
could reasonably be expected to have a Material Adverse Effect on Borrower.
Borrower may, however, contest or dispute any acts, rules, regulations, orders
and directions of those bodies or officials in any reasonable manner, provided
that any related Lien is inchoate or stayed and sufficient reserves are
established to the reasonable satisfaction of Agent to protect Agent's Lien on
or security interest in the Collateral. The assets of Borrower at all times
shall be maintained in accordance with the requirements of all insurance
carriers which provide insurance with respect to the assets of Borrower so that
such insurance shall remain in full force and effect.
3.25 Inspection of Premises. At all times Agent upon reasonable notice
shall have full access during normal business hours to and the right to audit,
check, inspect and make abstracts and copies from Borrower's books, records,
audits, correspondence
48
and all other papers relating to the Collateral and the operation of Borrower's
business, subject to confidentiality requirements imposed on Borrower by third
parties. Agent and its agents may enter upon any of Borrower's premises at any
time upon reasonable prior notice during business hours and at any other
reasonable time, and from time to time, for the purpose of inspecting the
Collateral and any and all records pertaining thereto and the operation of
Borrower's business.
3.26 Insurance. Borrower shall bear the full risk of any loss of any nature
whatsoever with respect to the Collateral. At Borrower's own cost and expense in
amounts and with carriers acceptable to Agent, Borrower shall keep all its
insurable properties and properties in which Borrower has an interest insured as
provided in Section 6.6 hereof.
3.27 Payment of Taxes. Borrower will pay, when due, all taxes, assessments
and other Charges lawfully levied or assessed upon Borrower or any of the
Collateral including, without limitation, real and personal property taxes,
assessments and charges and all franchise, income, employment, social security
benefits, withholding, and sales taxes. If any tax by any governmental authority
is or may be imposed on or as a result of any transaction between Borrower and
Agent which Agent may be required to withhold or pay or if any taxes,
assessments, or other Charges remain unpaid after the date fixed for their
payment, or if any claim shall be made which, in Agent's opinion, may possibly
create a valid Lien on the Collateral, Agent may without notice to Borrower pay
the taxes, assessments or other Charges and Borrower hereby indemnifies and
holds Agent harmless in respect thereof. Agent will not pay any taxes,
assessments or Charges to the extent that Borrower has contested or disputed
those taxes, assessments or Charges in good faith, by expeditious protest,
administrative or judicial appeal or similar proceeding provided that any
related tax lien is stayed and sufficient reserves are established to the
reasonable satisfaction of Agent to protect Agent's security interest in or Lien
on the Collateral. The amount of any payment by Agent under this Section 3.27
shall be charged to Borrower's account as a Revolving Loan and added to the
Credit Obligations and, until Borrower shall furnish Agent with an indemnity
therefor (or supply Agent with evidence satisfactory to Agent that due provision
for the payment thereof has been made), Agent may hold without interest any
balance standing to Borrower's credit and Agent shall retain its security
interest in any and all Collateral held by Agent.
3.28 Receivables.
(a) Nature of Receivables. Each Receivable shall be a bona fide and
valid account representing a bona fide indebtedness incurred by the Debtor
therein named, for a fixed sum as set forth in the invoice relating thereto
(provided immaterial or unintentional invoice errors shall not be deemed to be a
breach hereof) with respect to work, labor, expenses or services theretofore
rendered or contracted to be rendered in the future by Borrower as of the date
such Receivable is created. Same shall be due and owing in accordance with the
Borrower's standard terms of sale without dispute, setoff or counterclaim except
as may be stated on the accounts
49
receivable schedules delivered by Borrower to Agent and except to the extent of
a specific reserve or to the extent of the general reserve of Borrower.
(b) Solvency of Debtor. Each Debtor, to the best of Borrower's
knowledge, as of the date each Receivable is created, is and will be solvent and
able to pay all Receivables on which the Debtor is obligated in full when due or
with respect to such Debtor of Borrower who are not solvent Borrower has set up
on its books and in its financial records bad debt reserves adequate to cover
such Receivables.
(c) Locations of Borrower. Borrower's chief executive office is located
at the addresses set forth on the Disclosure Schedules. Until written notice is
given to Agent of any other office at which Borrower keeps its records
pertaining to Receivables, all such records shall be kept at such executive
office or its Domestic Subsidiaries' offices. The state of formation and
organizational number of Borrower and its Domestic Subsidiaries are set forth on
the Disclosure Schedules.
(d) Notification of Assignment of Receivables. At any time following
the occurrence and during the continuance of an Event of Default, Agent shall
have the right to send notice of the assignment of, and Agent's security
interest in, the Receivables to any and all Debtors or any third party holding
or otherwise concerned with any of the Collateral. Thereafter, Agent shall have
the sole right to collect the Receivables, take possession of the Collateral, or
both. Agent's actual collection expenses, including, but not limited to,
stationery and postage, telephone and telegraph, secretarial and clerical
expenses and the salaries of any collection personnel used for collection, may
be charged to Borrower's account and added to the Credit Obligations.
(e) Power of Agent to Act on Borrower's Behalf. Agent shall have the
right at any time following the occurrence and during the continuance of an
Event of Default or Default, to receive, endorse, assign and/or deliver in the
name of Agent or Borrower any and all checks, drafts and other instruments for
the payment of money relating to the Receivables, and Borrower hereby waives
notice of presentment, protest and non-payment of any instrument so endorsed. At
any time following the occurrence and during the continuance of an Event of
Default or Default, Borrower hereby constitutes Agent or Agent's designee as
Borrower's attorney with power: (a) to endorse Borrower's name upon any notes,
acceptances, checks, drafts, money orders or other evidences of payment or
Collateral; (b) to sign Borrower's name on any invoice or ▇▇▇▇ of lading
relating to any of the Receivables, drafts against Debtors, assignments and
verifications of Receivables; (c) to send verifications of Receivables to any
Debtor; (d) to sign Borrower's name on all financing statements or any other
documents or instruments deemed necessary or appropriate by Agent to preserve,
protect, or perfect Agent's interest in the Collateral and to file same; (e) to
demand payment of the Receivables; (f) to enforce payment of the Receivables by
legal proceedings or otherwise; (g) to exercise all of Borrower's rights and
remedies with respect to the collection of the Receivables and any other
Collateral; (h) to settle, adjust, compromise, extend or renew the Receivables;
(i) to settle, adjust or compromise any legal proceedings brought to collect
Receivables; (j) to prepare, file and sign Borrower's name on a proof of claim
in Bankruptcy or similar document against any Debtor; (k) to prepare, file and
sign Borrower's
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name on any notice of Lien, assignment or satisfaction of Lien or similar
document in connection with the Receivables; and (l) to do all other acts and
things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall
not be liable for any acts of omission or commission nor for any error of
judgment or mistake of fact or of law, unless done willfully maliciously or with
gross (not mere) negligence; this power being coupled with an interest is
irrevocable following the occurrence and during the continuance of an Event of
Default or Default. Agent shall have the right at any time following the
occurrence and during the continuance of an Event of Default or Default, to
change the address for delivery of mail addressed to Borrower to such address as
Agent may designate and to receive, open and dispose of all mail addressed to
Borrower.
(f) No Liability. Except in the event of gross negligence or willful
misconduct by Agent, Agent shall not under any circumstances or in any event
whatsoever, have any liability for any error or omission or delay of any kind
occurring in the settlement, collection or payment of any of the Receivables or
any instrument received in payment thereof, or for any damage resulting
therefrom. Following the occurrence and during the continuance of an Event of
Default, Agent may, without notice or consent from Borrower, ▇▇▇ upon or
otherwise collect, extend the time of payment of, compromise or settle for cash,
credit or upon any terms any of the Receivables or any other securities,
instruments or insurance applicable thereto and/or release any obligor thereof.
(g) Establishment of a Lockbox Account; Blocked Accounts. All deposit and
operating accounts of Borrower shall be maintained with Agent, provided however,
Borrower may maintain deposit accounts in local financial institutions. At any
time following the occurrence and during the continuance of an Event of Default,
upon request of Agent, (i) all proceeds of Collateral shall be deposited by
Borrower into a lockbox account with Agent ("Lockbox") and Borrower shall
execute and deliver Agent's customary lockbox agreement and (ii) Borrower shall
maintain such other "blocked accounts" ("Blocked Accounts") as Agent may require
pursuant to an arrangement with such other Agent(s) as may be selected by
Borrower and be acceptable to Agent. Borrower shall issue to any such Agent, an
irrevocable letter of instruction directing said Agent to transfer such funds so
deposited to Agent, either to any account maintained by Agent at said Agent or
by wire transfer to appropriate account(s) of Agent. All funds deposited in such
Blocked Accounts shall immediately become the property of Agent and Borrower
shall obtain the agreement by such Agent to waive any offset rights against the
funds so deposited. Agent shall not assume any responsibility for such blocked
account arrangement, including without limitation, any claim of accord and
satisfaction or release with respect to deposits accepted by any Agent
thereunder. Alternatively, Agent may establish depository accounts ("Depository
Accounts") in the name of Agent at a Agent or Agents for the deposit of such
funds and Borrower shall deposit all proceeds of Collateral or cause same to be
deposited, in kind, in such Depository Accounts of Agent in lieu of depositing
same to the Blocked Accounts.
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(h) Adjustments. Following the occurrence and during the continuation of an
Event of Default, Borrower will not, without Agent's consent, compromise or
adjust any material amount of the Eligible Receivables (or extend the time for
payment thereof) or grant any additional discounts, allowances or credits
thereon except for those compromises, adjustments, returns, extensions,
discounts, credits and allowances as have been heretofore customary in the
business of Borrower. As used herein, "material amount" means an amount,
individually or in the aggregate, which exceeds 10% of the outstanding
Receivables.
3.29 Exculpation of Liability. Nothing herein contained shall be construed
to constitute Agent as Borrower's agent for any purpose whatsoever, nor shall
Agent be responsible or liable for any shortage, discrepancy, damage, loss or
destruction of any part of the Collateral wherever the same may be located and
regardless of the cause thereof unless a result of Agent's gross negligence or
willful misconduct. Agent shall not, whether by anything herein or in any
assignment or otherwise, assume any of Borrower's obligations under any contract
or agreement assigned to Agent, and Agent shall not be responsible in any way
for the performance by Borrower of any of the terms and conditions thereof.
3.30 Financing Statements. Except with respect to the financing statements
filed by Agent and the financing statements directly related to Permitted Liens,
Borrower is not aware of any financing statement covering any of the Collateral
or any proceeds thereof is on file in any public office and, in the event any
such financing statement exists, such financing statement shall be promptly
terminated by Borrower.
3.31 Pledge Agreement; Account Control Agreement. Borrower shall grant to,
and at all times maintain for the benefit of, Agent, a first security interest
in cash and Cash Equivalents held pursuant to the Securities Pledge Agreements
and related Account Control Agreements.
SECTION 4.
CONDITIONS
4.1 Closing Conditions. The obligations of the Lenders to make the initial
Loans under this Agreement shall be subject to satisfaction of the following
conditions (in form and substance acceptable to the Agent and the Lenders):
(a) Executed Credit Documents. The Agent shall have received duly
executed copies of (i) this Agreement; (ii) the Notes, and (iii) the Collateral
Documents, each in form and substance reasonably acceptable to the Lenders.
(b) Corporate Documents. The Agent shall have received the following:
(i) Charter Documents. To the extent available, copies of the
articles or certificates of incorporation or other charter documents of
Borrower, each Guarantor and each Foreign Subsidiary whose Capital Stock is
pledged pursuant to the Pledge Agreement certified to be true and complete as of
a recent date by the
52
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of such Credit
Party to be true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws or regulations of Borrower, each
Guarantor and each Foreign Subsidiary whose Capital Stock is pledged pursuant to
the Pledge Agreement certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Effective Date.
(iii) Resolutions. Copies of resolutions of the Board of Directors of
Borrower and each Guarantor approving and adopting the Credit Documents to which
it is a party, the transactions contemplated therein and authorizing the
execution, delivery and performance thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct and in full
force and effect as of the Effective Date.
(iv) Good Standing. Copies of (A) to the extent available,
certificates of good standing, existence or the equivalent with respect to
Borrower and each Guarantor certified as of a recent date by the appropriate
Governmental Authority of its state or other jurisdiction of incorporation and
each other jurisdiction in which the failure to be qualified to do business and
in good standing could have a Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing authority
of its state or other jurisdiction of incorporation and each other jurisdiction
referred to in clause (A) above.
(v) Incumbency. A certificate of each Credit Party as to the
incumbency and specimen signature of each officer executing any Credit Document
or any other document delivered in connection herewith on behalf of such Credit
Party, certified by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Effective Date.
(c) Opinion of Counsel. The Agent shall have received a legal opinion,
dated the Effective Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., general counsel for the
Credit Parties, substantially in the form of Exhibit J.
(d) Fees and Expenses. The Credit Parties shall have paid all Fees and
other fees and expenses owed by them to the Agent or any Lender under this
Agreement or otherwise.
(e) Collateral. The Agent shall have received (i) all stock certificates
evidencing the Capital Stock pledged to the Agent pursuant to the Pledge
Agreement, together with duly executed in blank undated stock powers attached
thereto (unless, with respect to the pledged Capital Stock of any Foreign
Subsidiary, such stock powers are deemed unnecessary by the Agent in its sole
discretion under the law of the jurisdiction of incorporation of such Person)
and Intercompany Notes, (ii) searches of Uniform Commercial Code filings in the
jurisdiction of incorporation or organization, the
53
chief executive office of each Credit Party and each jurisdiction where any
Collateral is located or where a filing would need to be made in order to
perfect the Agent's security interest in the Collateral, copies of the financing
statements on file in such jurisdictions and evidence that no Liens exist other
than Permitted Liens, and (iii) duly executed financing statements (Form UCC-1)
for each appropriate jurisdiction as is necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the Collateral.
(f) Priority of Liens. The Agent, on behalf of the Secured Parties,
shall hold a perfected, first priority Lien, subject to no other Liens other
than Permitted Liens, on all Collateral.
(g) Evidence of Insurance. The Agent shall have received satisfactory
evidence that insurance satisfying the requirements set forth in the Credit
Documents is in effect.
(h) Corporate Structure. The ownership, capital, corporate, tax,
organizational and legal structure (including articles of incorporation and
bylaws, shareholder agreements and management) of the Credit Parties shall be
reasonably satisfactory to the Lenders.
(i) Consents and Approvals. The Borrower and the other Credit Parties
shall have obtained all governmental, shareholder and third party consents and
approvals necessary or, in the reasonable opinion of the Agent, desirable in
connection with the execution, delivery and performance of this Agreement and
the other Credit Documents (including the exercise of remedies under the
Collateral Documents), the other related financings and transactions
contemplated hereby and the continuing operations of the Borrower and its
Subsidiaries following the Effective Date.
(j) Material Adverse Effect. From the Closing Date to the Effective
Date, nothing shall have occurred (and neither the Lenders nor the Agent shall
have become aware of any facts or circumstances not previously known) which has,
or could reasonably be expected to have, a Material Adverse Effect.
(k) Litigation. Except as set forth in Schedule 5.9, there shall not
exist any order, decree, judgment, ruling or injunction or any pending or
threatened action, suit, investigation or proceeding that purports to affect the
Facility or that could reasonably be expected to have a Material Adverse Effect.
(l) Other Indebtedness. The Credit Parties shall have no material
liabilities (actual or contingent) or Preferred Stock other than (i) the
Indebtedness under the Credit Documents, (ii) Indebtedness that is set forth on
Schedule 7.1(b) and satisfactory to the Lenders, (iii) as disclosed in the most
recent interim balance sheet referred to in Section 5.1(a) and on Schedule 5.1,
and (iv) for accounts payable incurred in the ordinary course of business
consistent with past practice since the date of the most recent interim balance
sheet referred to in Section 5.1(a).
54
(m) Officer's Certificates. The Agent shall have received a certificate
or certificates executed by a Responsible Officer of the Borrower as of the
Effective Date stating that (A) each Credit Party is in compliance with all
existing financial obligations, and (B) conditions set forth in subsections
4.1(e), (i), (j), (k) and (l) shall have been satisfied, certified by a
Responsible Officer of the Borrower to be true and correct as of the Effective
Date.
(n) Other. The Lenders shall have received such other documents,
instruments, agreements or information as reasonably requested by any Lender,
including information regarding litigation, investigations and other
proceedings, compliance with applicable laws, regulations and consent orders,
tax matters, accounting matters, labor agreements and other employee-related
matters, insurance coverage, pension liabilities (actual or contingent) and
other employee benefits, real estate leases, material contracts and
relationships, debt agreements, transactions with Affiliates and former
Affiliates, property ownership, Capital Leases, trademarks, other proprietary
rights and related licenses, capital stock, options and warrants, and contingent
liabilities of the Credit Parties.
4.2 Conditions to all Extensions of Credit. The obligations of each Lender
to make any Loan (including the initial Loans), convert any existing Loan into a
Loan of another Type or extend any existing Loan into a subsequent Interest
Period are subject, in addition to satisfaction on the Effective Date of the
conditions set forth in Section 4.1, to satisfaction on the date such Loan is
made, converted or extended, as applicable, to satisfaction of the following
conditions:
(a) The Borrower shall have delivered in the case of any Revolving Loan,
an appropriate Notice of Revolving Borrowing or Notice of Extension/Conversion;
(b) The Borrower shall, in the case of any Acquisition Loan, satisfied the
conditions set forth in Section 2.3;
(c) The representations and warranties set forth in Section 5 shall be
true and correct in all material respects as of such date (except for those
which expressly relate to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects on and as of
such earlier date);
(d) There shall not have been commenced against any Credit Party an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or for the winding up or liquidation of its affairs, which
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
55
(e) No Default or Event of Default shall exist and be continuing either
prior to the making, conversion or extension of such Loan or after giving effect
thereto; and
(f) Immediately after giving effect to the making, conversion or
extension of such Loan (and the application of the proceeds thereof), as
applicable, the aggregate principal amount of outstanding Revolving Loans shall
not exceed the limitations applicable thereto set forth in Section 2.
The delivery of each Notice of Revolving Borrowing and each Notice of
Extension/Conversion shall constitute a representation and warranty by the
Borrower of the correctness of the matters specified in subsections (b), (c),
(d) and (e) above.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Lender that:
5.1 Financial Condition.
(a) The audited consolidated and unaudited consolidating balance sheets
of the Borrower and its Subsidiaries as of December 31, 2001, and the audited
consolidated and unaudited consolidating statements of earnings and statements
of cash flows of the Borrower and its Subsidiaries for the years ended December
31, 2002, December 31, 2003 and December 31, 2004 have heretofore been furnished
to each Lender. Such financial statements (including the notes thereto) (i) with
respect to the consolidated statements only, have been audited by a nationally
recognized accounting firm reasonably acceptable to the Agent, (ii) have been
prepared in accordance with GAAP consistently applied throughout the periods
covered thereby and (iii) present fairly in all material respects (on the basis
disclosed in the footnotes to such financial statements) the consolidated and
consolidating financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of such dates and for such periods. During the
period from January 1, 2005 to and including the Effective Date, there has been
no sale, transfer or other disposition by any Credit Party of any material part
of the business or property of the Credit Parties, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of the Credit Parties, taken as a whole, in
each case, which, is not reflected in the foregoing financial statements or in
the notes thereto. Except as disclosed in Schedule 5.1, the balance sheets and
the notes thereto included in the foregoing financial statements disclose all
material liabilities, actual or contingent, of the Borrower and its Subsidiaries
as of the dates thereof.
(b) As of the Effective Date, the Credit Parties do not have any
material liabilities, actual or contingent, or Preferred Stock except (i) as
disclosed in the most recent interim balance sheet referred to in subsection (a)
above, (ii) for items disclosed
56
in Schedule 5.1, (iii) for accounts payable incurred in the ordinary course of
business consistent with past practice since the date of the most recent interim
balance sheet referred to in subsection (a) above (iv) Indebtedness under the
Credit Documents and (v) Indebtedness set forth on Schedule 7.1(b).
(c) [intentionally omitted]
(d) The financial statements delivered to the Lenders pursuant to
Section 6.1(a) and (b), (i) have been prepared in accordance with GAAP (except
as may otherwise be permitted under Section 6.1(a) and (b)) and (ii) present
fairly in all material respects (on the basis disclosed in the footnotes to such
financial statements, if any) the consolidated and consolidating financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries as of the respective dates thereof and for the respective periods
covered thereby.
5.2 No Material Change. Since January 1, 2005, (a) there has been no
development or event relating to or affecting a Credit Party which has had or
could reasonably be expected to have a Material Adverse Effect and (b) no
dividends or other distributions have been declared, paid or made upon the
Capital Stock of any Credit Party nor has any of the Capital Stock of any Credit
Party been redeemed, retired, purchased or otherwise acquired for value.
5.3 Organization and Good Standing. Each of the Credit Parties (a) is duly
organized, validly existing and is in good standing (or the local law
equivalent, in the case of Foreign Subsidiaries) under the laws of the
jurisdiction of its incorporation or organization, (b) has the corporate or
other necessary power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a foreign
entity and in good standing (or the local law equivalent, in the case of Foreign
Subsidiaries) under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not reasonably be expected to have a
Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. Each of the Credit
Parties has the corporate or other necessary power and authority, and the legal
right, to execute, deliver and perform the Credit Documents to which it is a
party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and each Credit Party has taken all necessary corporate action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Credit Party in connection with the borrowings or
other extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which such
Credit Party is a party, except for (i) consents,
57
authorizations, notices and filings disclosed in Schedule 5.4, all of which have
been (or will as of the Effective Date) obtained or made, and (ii) filings to
perfect the Liens created by the Collateral Documents. This Agreement has been,
and each other Credit Document to which any Credit Party is a party will be,
duly executed and delivered on behalf of such Credit Party. This Agreement
constitutes, and each other Credit Document to which any Credit Party is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of such Credit Party and, to the knowledge of the Credit Parties,
enforceable against such Person in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Conflicts. Neither the execution and delivery by each Credit Party
of the Credit Documents to which it is a party, nor the consummation of the
transactions contemplated therein, nor performance of and compliance with the
terms and provisions thereof by such Credit Party, nor the exercise of remedies
by the Secured Parties under the Credit Documents, will (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or
other organizational or governing documents of such Person, (b) violate,
contravene or conflict with any Requirement of Law (including Regulation U or
Regulation X), applicable to it or its Properties, (c) violate, contravene or
conflict with contractual provisions of, cause an event of default under, or
give rise to material increased, additional, accelerated or guaranteed rights of
any Person under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, or (d) result in or require the creation of any Lien (other than
the Lien of the Collateral Documents) upon or with respect to its Properties.
5.6 No Default. No Credit Party is in default in any respect under any loan
agreement, indenture, mortgage, security agreement or other agreement relating
to Indebtedness or any other contract, lease, agreement or obligation to which
it is a party or by which any of its Properties is bound which default could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred or exists.
5.7 Ownership of Assets. Each Credit Party is the owner of, and has good
and marketable title to, all of its respective assets, and none of such assets
is subject to any Lien other than Permitted Liens.
5.8 Indebtedness. Except as permitted under Section 7.1, the Credit Parties
have no Indebtedness.
5.9 Litigation. Except as disclosed in Schedule 5.9, there are no actions,
suits, investigations or legal, equitable, arbitration or administrative
proceedings pending for which service of process or other written notice has
been received or, to the knowledge of any Credit Party, threatened against or
affecting any Credit Party which could reasonably be expected to have a Material
Adverse Effect.
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5.10 Taxes. Each Credit Party has filed, or caused to be filed, all
material tax returns (including Federal, state, local and foreign tax returns)
required to be filed and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings diligently pursued, and against which adequate
reserves are being maintained in accordance with GAAP. Except as disclosed in
Schedule 5.10, no Credit Party knows as of the Effective Date of any pending
investigation of such party by any taxing authority or proposed tax assessments
against it or any other Credit Party.
5.11 Compliance with Law. Each Credit Party is in compliance with all
Requirements of Law (including Environmental Laws) applicable to it or to its
Properties, except for any such failure to comply which could not reasonably be
expected to have a Material Adverse Effect. No Requirement of Law could
reasonably be expected to cause a Material Adverse Effect. To the knowledge of
the Credit Parties, as of the Effective Date, none of the Credit Parties or any
of their respective material Properties or assets is subject to or in default
with respect to any judgment, writ, injunction, decree or order of any court or
other Governmental Authority. None of the Credit Parties has received any
written communication prior to the Effective Date from any Governmental
Authority that alleges that any of the Credit Parties is not in compliance in
any material respect with any Requirement of Law, except for allegations that
have been satisfactorily resolved and are no longer outstanding.
5.12 ERISA. Except as disclosed in Schedule 5.12:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Plan
has been maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any other
applicable Federal or state laws, and (iv) no Lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case,
utilizing the actuarial assumptions used in such Plan's most recent actuarial
valuation report), did not exceed as of such valuation date the fair market
value of the assets of such Plan.
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(c) Neither any Credit Party nor any ERISA Affiliate has incurred, or,
to the knowledge of the Credit Parties, could be reasonably expected to incur,
any withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. Neither any Credit Party nor any ERISA Affiliate would become
subject to any withdrawal liability under ERISA if any Credit Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and Multiple
Employer Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither any Credit Party nor any
ERISA Affiliate has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the
knowledge of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any Credit
Party or any ERISA Affiliate to any liability under Section 406, 409, 502(i) or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which any Credit Party or any ERISA Affiliate has agreed
or is required to indemnify any Person against any such liability.
(e) Neither any Credit Party nor any ERISA Affiliate has any material
liability with respect to "expected post-retirement benefit obligations" within
the meaning of the Financial Accounting Standards Board Statement 106.
5.13 Subsidiaries. Schedule 5.13 sets forth a complete and accurate list of
all Subsidiaries of the Borrower, discloses the jurisdiction of incorporation of
each such Subsidiary, the number of authorized shares of each class of Capital
Stock of each such Subsidiary, the number of outstanding shares of each class of
Capital Stock, the number and percentage of outstanding shares of each class of
Capital Stock of each such Subsidiary owned (directly or indirectly) by any
Person, and the number and effect, if exercised, of all outstanding options,
warrants, rights of conversion or purchase and all other similar rights with
respect to Capital Stock of each such Subsidiary. Except for director qualifying
shares in certain Foreign Subsidiaries, all the outstanding Capital Stock of
each such Subsidiary is validly issued, fully paid and non-assessable and is
owned by the Borrower, directly or indirectly, free and clear of all Liens
(other than those arising under the Collateral Documents). Other than as
disclosed in Schedule 5.13, no Credit Party has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its Capital Stock.
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5.14 Governmental Regulations, Etc.
(a) No portion of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the Agent, the Borrower
will furnish to the Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U. No
indebtedness being reduced or retired out of the proceeds of the Loans was or
will be incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any "margin security" within the meaning
of Regulation T. "margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Credit
Parties. None of the transactions contemplated by this Agreement (including the
direct or indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Exchange Act or
regulations issued pursuant thereto, or Regulation T, U or X.
(b) No Credit Party is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act or the Investment Company Act
of 1940, each as amended. In addition, no Credit Party is (i) an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, (ii) controlled by such a company, or (iii) a "holding
company", a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal holder of Capital Stock
of any Credit Party is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director", "executive officer"
and "principal shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O issued by the Board of
Governors of the Federal Reserve System.
(d) Each Credit Party has obtained and holds in full force and effect
all material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights or way and other rights,
consents and approvals which are necessary for the ownership of its respective
Property and to the conduct of its respective businesses as presently conducted.
(e) Each Credit Party is current with all material reports and
documents, if any, required to be filed with any state or Federal securities
commission or similar agency and is in compliance in all material respects with
all applicable rules and regulations of such commissions, except where the
failure to be in compliance would not have a Material Adverse Effect.
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5.15 Purpose of Loans. The proceeds of the Loans made on or after the
Effective Date will be used to provide for: (a) working capital requirements of
the Borrower and its Subsidiaries; (b) permitted Consolidated Capital
Expenditures; (c) Permitted Acquisitions; (d) for the general corporate purposes
of the Borrower and its Subsidiaries; (e) repurchases of Capital Stock of
Borrower to the extent permitted hereunder; and (f) amend and restate existing
indebtedness of Borrower to the Lenders.
5.16 Environmental Matters. Except as disclosed in Schedule 5.16:
(a) Each of the facilities and properties owned, leased or operated by
the Credit Parties (the "Company Properties") and all operations at the Company
Properties are in compliance in all material respects with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Company Properties or the businesses operated by the Credit
Parties (the "Businesses"), and there are no conditions or circumstances
relating to the Businesses or Company Properties or any former facilities,
properties or businesses of the Credit Parties that could give rise to liability
of any Credit Party under any applicable Environmental Laws or under any
agreement or other instrument pursuant to which any Credit Party has agreed or
is required to indemnify any Person against any such liability.
(b) None of the Company Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the Company
Properties in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability of any Credit Party under,
Environmental Laws or under any agreement or other instrument pursuant to which
any Credit Party has agreed or is required to indemnify any Person against any
such liability.
(c) No Credit Party has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, noncompliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Company Properties or the Businesses, nor does any Credit Party have
knowledge or reason to believe that any such notice will be received or is being
threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Company Properties, or generated, treated, stored or
disposed of at, on or under any of the Company Properties or any other location,
in each case by or on behalf of any Credit Party in violation of, or in a manner
that could give rise to liability of any Credit Party under, any applicable
Environmental Law or under any agreement or other instrument pursuant to which
any Credit Party has agreed or is required to indemnify any Person against any
such liability.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any Credit Party is or will be named as a party, nor
are there any consent decrees, consent orders, administrative orders, other
decrees or
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orders or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Credit Parties, the Company Properties or
the Businesses.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Company Properties, or arising from or
related to the operations (including disposal) of any Credit Party in connection
with the Company Properties or otherwise in connection with the Businesses, in
violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws or under any agreement or other instrument pursuant to
which any Credit Party has agreed or is required to indemnify any Person against
any such liability.
5.17 Intellectual Property. Except as disclosed in Schedule 5.17, each
Credit Party owns, or has the legal right to use, all trademarks, trade names,
copyrights, service marks, proprietary techniques, patents, patent applications,
trade secrets, technology, know how and processes necessary for each of them to
conduct its business as currently conducted except for those the failure to own
or have such legal right to use could not reasonably be expected to have a
Material Adverse Effect.
5.18 Solvency. Each Credit Party is and, after the Effective Date, will be
Solvent.
5.19 Investments. All Investments of each Credit Party are Permitted
Investments.
5.20 [Intentionally omitted].
5.21 Disclosure. Neither this Agreement nor any financial statements
delivered to the Lenders pursuant hereto nor any other document, certificate or
statement furnished to the Lenders by or on behalf of any Credit Party in
connection with the transactions contemplated hereby (other than final
projections) contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained therein or
herein not misleading. All financial projections that have been made available
to the Agent or the Lenders by any Credit Party or any representatives thereof
in connection with the transactions contemplated hereby have been prepared in
good faith based upon assumptions believed by the Credit Parties to be
reasonable.
5.22 No Burdensome Restrictions; Material Contracts.
(a) No Credit Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
Schedule 5.22 sets forth a complete and accurate list of each agreement,
contract, lease, license, commitment, commercial arrangement or other instrument
to which any Credit Party is a party or by which it or any of its properties or
assets are or may be bound as of the Effective Date
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the loss of which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect (collectively, the "Material
Contracts").
(b) Each Material Contract will be in all material respects valid,
binding and in full force and effect and will be enforceable by the Borrower or
the Subsidiary of the Borrower which is a party thereto in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights generally
and general equitable principles (whether in equity or at law). Each of the
Borrower and the Subsidiaries will have performed in all material respects all
obligations required to be performed by it to date under the Material Contracts
and it will not be (with or without the lapse of time or the giving of notice,
or both) in breach or default in any material respect thereunder and, to the
knowledge of the Credit Parties, no other party to any of the Material Contracts
will be (with or without the lapse of time or the giving of notice, or both) in
breach or default in any material respect thereunder. Neither the Borrower nor
any of the Subsidiaries, nor, to the knowledge of the Borrower, any other party
to any Material Contract, will have given notice of termination of, or taken any
action inconsistent with the continuation of, any Material Contract. Except as
disclosed in Schedule 5.22, none of such other parties will have any presently
exercisable right to terminate any Material Contract nor will any such other
party have any right to terminate any Material Contract on account of the
execution, delivery or performance of the Credit Documents.
5.23 Labor Matters. Except as disclosed in Schedule 5.23, there are no
collective bargaining agreements or Multiemployer Plans covering the employees
of a Credit Party as of the Effective Date and none of the Credit Parties has
suffered any strike, walkout, work stoppage, unfair labor practice complaint or
other material labor difficulty within the five years prior to the Effective
Date. To the knowledge of the Credit Parties, as of the Effective Date, no union
representation question exists with respect to the employees of the Credit
Parties and no union organizing activities are taking place. The hours worked by
and payments made to employees of the Credit Parties have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due
from any Credit Party, or for which any claim may be made against any Credit
Party, on account of wages, employee health and welfare insurance or other
benefits, have been paid or accrued as a liability on the books of the Credit
Parties.
5.24 Nature of Business. As of the Effective Date, the Credit Parties are
engaged in the business of providing outsourced and clinical research and
products development services to pharmaceutical and biotechnology companies.
5.25 Security Documents.
(a) The Pledge Agreement is effective to create in favor of the Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
first priority security interest in 100% of the issued and outstanding Capital
Stock of all Subsidiaries (provided that no shares of Capital Stock of any
issuer incorporated in a jurisdiction
64
outside of the United States of America shall be pledged to the extent that the
aggregate amount of shares of Capital Stock of such issuer pledged under the
Pledge Agreement would exceed 65% of the Capital Stock of such issuer to the
extent, and for so long as, the pledge of any greater percentage would have
adverse tax consequences for the pledging party) and, when the Pledged
Securities (as defined in the Pledge Agreement) are delivered to the Agent, the
Pledge Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such of
the Collateral in which a security interest can be perfected under Article 8 or
9 of the Uniform Commercial Code, prior and superior in right to any other
Person.
(b) The Agent, for the ratable benefit of the Secured Parties, will at all
times have the Liens provided for in the Collateral Documents and the Collateral
Documents will at all times constitute a valid and continuing lien of record and
first priority perfected security interest in all the Collateral referred to
therein. No filings or recordings are required in order to perfect the security
interests created under the Collateral Documents, except for filings or
recordings listed on Schedule 5.25. All such listed filings and recordings will
have been made on or prior to the Effective Date.
5.26 Transactions with Affiliates. Except for agreements and arrangements
among the Borrower and its Wholly Owned Subsidiaries or among Wholly Owned
Subsidiaries of the Borrower, neither the Borrower nor any of its Subsidiaries
is a party to or engaged in any transaction with, and none of the properties and
assets of the Borrower or any of its Subsidiaries is subject to or bound by, any
Affiliate of any Credit Party.
5.27 Insurance. The Credit Parties maintain policies of fire and casualty,
liability, business interruption and other forms of insurance in such amounts,
with such deductibles and against such risks and losses as are in accordance
with normal industry practice for the business and assets of the Credit Parties.
All such policies are in full force and effect, all premiums due and payable
thereon have been paid (other than retroactive or retrospective premium
adjustments that are not yet, but may be, required to be paid with respect to
any prior period under comprehensive general liability and workmen's
compensation insurance policies), and no notice of cancellation or termination
has been received with respect to any such policy which has not been replaced on
substantially similar terms prior to the date of such cancellation. The
activities and operations of the Credit Parties have been conducted in a manner
so as to conform in all material respects to all applicable provisions of such
insurance policies.
SECTION 6.
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Agreement is
in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding and until all of the Commitments hereunder shall have
terminated:
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6.1 Information Covenants. The Borrower will furnish, or cause to be
furnished, to the Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event
within ninety (90) days after the end of each fiscal year of the Borrower, an
audited consolidated and unaudited consolidating balance sheet and income
statement of the Borrower and its Consolidated Subsidiaries, as of the end of
such fiscal year, together with related consolidated and consolidating
statements of operations and retained earnings and of cash flows for such fiscal
year, setting forth in comparative form consolidated and consolidating figures
for the preceding fiscal year, all such financial statements to be in reasonable
form and detail and, with respect to the consolidated statements only, audited
by independent certified public accountants of recognized national standing
reasonably acceptable to the Agent and accompanied by with respect to the
consolidated statements, an opinion of such accountants (which shall not be
qualified or limited in any material respect), and, with respect to the
consolidating statement, a certificate of the Chief Financial Officer of the
Borrower (as to which certificate there shall be no individual, as opposed to
corporate, liability), to the effect that such financial statements have been
prepared in accordance with GAAP and fairly present in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP
consistently applied (except for changes with which such accountants concur).
(b) Quarterly Financial Statements. As soon as available, and in any
event within forty-five (45) days after the end of each of the first three
fiscal quarters in each fiscal year of the Borrower, an unaudited consolidated
and consolidating balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with related
consolidated and consolidating statements of operations and retained earnings
and of cash flows for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in comparative form consolidated and consolidating
figures for the corresponding period of the preceding fiscal year, all such
financial statements to be in reasonable form and detail and reasonably
acceptable to the Agent, and accompanied by a certificate of the Chief Financial
Officer of the Borrower (as to which certificate there shall be no individual,
as opposed to corporate, liability) to the effect that such quarterly financial
statements have been prepared in accordance with GAAP and fairly present in all
material respects the consolidated financial position and consolidated results
of operations and cash flows of the Borrower and its Consolidated Subsidiaries
in accordance with GAAP consistently applied, subject to changes resulting from
normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 6.1(a) and 6.1(b) above, a certificate of
the Chief Financial Officer of the Borrower (as to which certificate there shall
be no individual, as opposed to corporate, liability) substantially in the form
of Exhibit H: (i) demonstrating compliance with the financial covenants
contained in Section 7.18 by calculation thereof as of the end of each such
fiscal period; (ii) stating that no Default or Event of Default
66
exists, or if any Default or Event of Default does exist, specifying the nature
and extent thereof and what action the Borrower proposes to take with respect
thereto; and (iii) stating whether, since the date of the most recent financial
statements delivered hereunder, there has been any material change in the GAAP
applied in the preparation of the financial statements of the Borrower and its
Consolidated Subsidiaries, and, if so, describing such change.
(d) Annual Budgets and Projections. Within one hundred and twenty (120)
days following the end of each fiscal year of the Borrower, (i) an annual budget
of the Borrower and its Consolidated Subsidiaries for the current year and (ii)
balance sheets, income statements and statements of cash flows.
(e) Compliance With Certain Provisions of this Agreement. Within
ninety (90) days after the end of each fiscal year of the Borrower, a
certificate containing information regarding the amount of Net Cash Proceeds
from Asset Dispositions (other than Excluded Asset Dispositions), Debt Issuances
and Equity Issuances that were made during the prior fiscal year.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to any
Credit Party in connection with any annual, interim or special audit of the
books of such Credit Party.
(g) Reports. Promptly upon transmission or receipt thereof, (i) copies
of all filings and registrations with, and reports to or from, the Securities
and Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as any Credit Party shall send
to its shareholders or to a holder of any Indebtedness owed by any Credit Party
in its capacity as such a holder and (ii) upon the request of the Agent or the
Required Lenders, all reports and written information to and from the United
States Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and safety
matters, or any successor agencies or authorities concerning environmental,
health or safety matters.
(h) Notices. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Agent (i) immediately of the occurrence of any event or
condition consisting of a Default or Event of Default, specifying the nature and
existence thereof and what action the Borrower proposes to take with respect
thereto, and (ii) promptly following the occurrence of any of the following with
respect to any Credit Party: (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Person which if adversely
determined could reasonably be expected to have a Material Adverse Effect and
(B) the institution of any proceedings against such Person with respect to, or
the receipt of notice by such Person of potential liability or responsibility
(direct or indirect) for violation, or alleged violation of any Federal, state
or
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local law, rule or regulation, including Environmental Laws, the violation of
which could have a Material Adverse Effect.
(i) ERISA. The Borrower will give written notice to the Agent promptly
(and in any event within five (5) Business Days after any officer of any Credit
Party obtains knowledge thereof) of: (i) any event or condition, including any
Reportable Event, that constitutes, or might reasonably lead to, an ERISA Event;
(ii) with respect to any Multiemployer Plan, the receipt of notice as prescribed
in ERISA or otherwise of any withdrawal liability assessed against the Borrower
or any of its ERISA Affiliates, or of a determination that any Multiemployer
Plan is in reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which any Credit Party or any
ERISA Affiliate is required to contribute to each Plan pursuant to its terms and
as required to meet the minimum funding standard set forth in ERISA and the Code
with respect thereto; or (iv) any change in the funding status of any Plan that
could have a Material Adverse Effect, together with a description of any such
event or condition or a copy of any such notice and a statement by the chief
financial officer of the Borrower briefly setting forth the details regarding
such event, condition or notice and the action, if any, which has been or is
being taken or is proposed to be taken by the Borrower with respect thereto.
Promptly upon request, the Credit Parties shall furnish the Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including copies of each annual report/return (Form 5500
series), as well as all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
(j) Other Information. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of any Credit Party as the Agent or the Required Lenders may
reasonably request.
6.2 Preservation of Existence and Franchises. Except as a result of or in
connection with a dissolution, merger or disposition of a Subsidiary permitted
under Section 7.4 or Section 7.5, each of the Credit Parties will do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority.
6.3 Books and Records. Each of the Credit Parties will keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
6.4 Compliance with Law. Each of the Credit Parties will comply with all
Requirements of Law applicable to it and its Property to the extent that
noncompliance with any such Requirement of Law could reasonably be expected to
have a Material Adverse Effect.
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6.5 Payment of Taxes and Other Indebtedness. Each of the Credit Parties
will pay and discharge (a) all material taxes, assessments and other
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its Properties, before they shall become delinquent, (b) all
material lawful claims (including claims for labor, materials and supplies)
which, if unpaid, might give rise to a Lien upon any of its Properties, and (c)
except as prohibited hereunder, all of its other Indebtedness as it shall become
due; provided, that, no Credit Party shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings diligently pursued and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.
6.6 Insurance; Certain Proceeds.
(a) Each of the Credit Parties will at all times maintain in full force
and effect insurance (including domestic worker's compensation insurance,
liability insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry practice (or
as are otherwise required by the Collateral Documents). The Agent shall be named
as loss payee or mortgagee, as its interest may appear, with respect to all such
property policies and an additional insured with respect to the commercial
general liability policy, and each provider of any such insurance shall agree,
by endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Agent, that if the insurance carrier shall have
received written notice from the Agent of the occurrence of an Event of Default,
the insurance carrier shall pay all proceeds otherwise payable to the Credit
Parties under such policies directly to the Agent (which agreement shall be
evidenced by a "standard" or "New York" lender's loss payable endorsement in the
name of the Agent on Accord Form 27) and that it will give the Agent thirty (30)
days' prior written notice before any such policy or policies shall be altered
or canceled, and that no act or default of any Credit Party or any other Person
shall affect the rights of the Agent or the Lenders under such policy or
policies.
(b) In case of any Casualty or Condemnation with respect to any
Property of any Credit Party or any part thereof, the Borrower shall promptly
give written notice thereof to the Agent generally describing the nature and
extent of such damage, destruction or taking. In such case the Borrower shall,
or shall cause such Credit Party to, promptly repair, restore or replace the
Property of such Credit Party which was subject to such Casualty or Condemnation
at such Credit Party's cost and expense, whether or not Insurance Proceeds or a
Condemnation Award, if any, received on account of such event shall be
sufficient for that purpose; provided, that, such Property need not be repaired,
restored or replaced to the extent the failure to make such repair, restoration
or replacement (i)(A) is desirable to the proper conduct of the business of such
Credit Party in the ordinary course and otherwise in the best interest of such
Credit
69
Party and (B) would not materially impair the rights and benefits of the Agent
or the Secured Parties under the Collateral Documents or any other Credit
Document or (ii) the failure to repair, restore or replace the Property is
attributable to the application of the Insurance Proceeds from such Casualty or
the Condemnation Award from such Condemnation to payment of the Credit
Obligations in accordance with the provisions of Section 3.3(b). In the event a
Credit Party shall receive any Insurance Proceeds or Condemnation Awards, such
Credit Party will immediately pay over such proceeds to the Agent, for payment
on the Credit Obligations in accordance with Section 3.3(b) or, if such funds
constitute Reinvestment Funds, to be held by the Agent. The Agent agrees to
release such Insurance Proceeds or Condemnation Awards to the Borrower as needed
from time to time to pay for the replacement or restoration of the portion of
the Property subject to the Casualty or Condemnation, if, but only if, the
conditions set forth in the definition of "Reinvestment Funds" are satisfied at
the time of such request.
(c) In connection with the covenants set forth in this Section 6.6, it
is understood and agreed that:
(i) none of the Agent, the Lenders or their respective agents or
employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 6.6, it being understood
that (A) the Credit Parties shall look solely to their insurance companies or
any other parties other than the aforesaid parties for the recovery of such loss
or damage and (B) such insurance companies shall have no rights of subrogation
against the Agent, the Lenders or their agents or employees. If, however, the
insurance policies do not provide waiver of subrogation rights against such
parties, as required above, then each Credit Party hereby agrees, to the extent
permitted by law, to waive its right of recovery, if any, against the Agent, the
Lenders and their agents and employees;
(ii) Upon the occurrence of an Event of Default, the Credit Parties
will permit an insurance consultant retained by the Agent, at the expense of the
Borrower, to review from time to time the insurance policies maintained by the
Credit Parties; and
(iii) Upon the occurrence of an Event of Default, the Required
Lenders shall have the right to require the Credit Parties to keep other
insurance in such form and amount as the Agent or the Required Lenders may
reasonably request; provided, that, such insurance shall be obtainable on
commercially reasonable terms; and provided further, that, the designation of
any form, type or amount of insurance coverage by the Agent or the Required
Lenders under this Section 6.6 shall in no event be deemed a representation,
warranty or advice by the Agent or the Lenders that such insurance is adequate
for the purposes of the business of the Credit Parties or the protection of
their properties.
6.7 Maintenance of Property. Each of the Credit Parties will maintain and
preserve its properties and equipment material to the conduct of its business in
good repair, working order and condition, normal wear and tear and Casualty and
70
Condemnation excepted, and will make, or cause to be made, as to such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
6.8 Performance of Obligations. Each of the Credit Parties will perform in
all material respects all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound.
6.9 Use of Proceeds. The Borrower will use the proceeds of the Loans solely
for the purposes set forth in Section 5.15.
6.10 Audits/Inspections. Upon reasonable notice and during normal business
hours, the Borrower will, and will cause each of its Subsidiaries to, permit
representatives appointed by the Agent or the Required Lenders, including
independent accountants, agents, employees, attorneys and appraisers, to visit
and inspect its Property, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such representatives obtain and shall permit the Agent or such
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees,
independent accountants, attorneys and representatives of the Credit Parties.
The Borrower agrees that the Agent, and its representatives, may conduct an
annual audit of the Collateral, at the expense of the Borrower upon the
occurrence of an Event of Default. The Borrower will direct all accountants and
auditors employed by it at any time during the term of this Agreement to exhibit
and deliver to the Agent and the Lenders, upon request, copies of any of the
financial statements, trial balances or other accounting records of any sort of
the Credit Parties in the accountant's or auditor's possession, and to disclose
to the Agent and the Lenders any information they may have concerning the
financial status and business operation of the Credit Parties. Upon request of
the Agent or the Required Lenders, the Borrower will authorize all Federal,
state and municipal authorities to furnish to the Lenders copies of reports or
examinations relating to the Credit Parties, whether made by any Credit Party or
otherwise.
6.11 Additional Credit Parties. Contemporaneously with any Person becoming
a direct or indirect Domestic Subsidiary of any Credit Party, the Borrower shall
provide the Agent with written notice thereof and shall (i) cause such Person to
execute a Joinder Agreement in substantially the same form as Exhibit I, (ii)
cause 100% of the Capital Stock of such Person to be delivered to the Agent
(together with undated stock powers signed in blank) and to be subject at all
times to a first priority, perfected Lien in favor of the Agent pursuant to the
Collateral Documents, subject only to Permitted Liens, and (iii) deliver such
other documentation as the Agent may reasonably request in connection with the
foregoing, including appropriate UCC-1 financing statements, certified
resolutions and other organizational and authorizing documents of such
71
Person, favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Agent's liens
thereunder), all in form, content and scope reasonably satisfactory to the
Agent. Contemporaneously with any Person becoming a direct Foreign Subsidiary of
the Borrower or any Domestic Subsidiary of the Borrower (Borrower covenants and
agrees that any Permitted Acquisition of Foreign Subsidiary shall be
accomplished as a direct Foreign Subsidiary of either Borrower or any Domestic
Subsidiary of Borrower), the Borrower or such Domestic Subsidiary shall provide
the Agent with written notice thereof and shall cause sixty-five percent (65%)
of such Person's Capital Stock (for so long as the pledge of any greater
percentage would have adverse tax consequences to the Credit Parties), to be
delivered to the Agent (together with undated stock powers signed in blank
unless such stock powers are deemed unnecessary by the Agent in its reasonable
discretion under the law of the jurisdiction of incorporation of such Person)
and to be subject at all times to a first priority, perfected Lien in favor of
the Agent pursuant to the Collateral Documents, subject only to Permitted Liens
and shall further deliver such other documentation as the Agent may reasonably
request in connection with the foregoing including appropriate UCC-1 financing
statements, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person which
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
Agent's liens thereunder.
SECTION 7.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that, so long as this Agreement is
in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding and until all of the Commitments hereunder shall have
terminated:
7.1 Indebtedness. None of the Credit Parties will contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Agreement and the other Credit
Documents;
(b) Indebtedness of the Borrower and its Subsidiaries in existence on
the Effective Date to the extent disclosed in Schedule 7.1(b) (but not including
any renewal, refinancing or extension thereof);
(c) Purchase Money Indebtedness (including Capital Leases) incurred by
the Borrower or any of its Subsidiaries after the Closing Date to finance the
purchase of fixed assets acquired after the Closing Date; provided, that (i) the
total of all such Indebtedness and Indebtedness under clause (f) of this Section
7.1 for the Borrower and its Subsidiaries taken together shall not exceed an
aggregate principal amount of $10,000,000 at any time outstanding; (ii) such
Indebtedness when incurred shall not
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exceed the purchase price of the asset(s) financed; and (iii) such Indebtedness
is issued and any Liens securing such Indebtedness are created at the time of,
or within ninety (90) days after, the acquisition of such assets and such
Indebtedness is not secured by a Lien on any other assets;
(d) obligations of the Borrower or any of its Subsidiaries in respect of
Lender Hedging Agreements entered into in order to limit exposure to floating
rate indebtedness or foreign currency fluctuation and exchange rate risk of the
Borrower or any of its Subsidiaries, and not for speculative purposes;
(e) intercompany Indebtedness arising out of loans and advances
constituting Permitted Investments;
(f) in addition to the Indebtedness otherwise permitted by this Section
7.1,
(i) Indebtedness (including Purchase Money Indebtedness) incurred
after the Effective Date by the Borrower or any of its Subsidiaries; provided,
that, (A) the loan documentation with respect to such Indebtedness shall not
contain covenants or default provisions relating to any Credit Party that are
more restrictive than the covenants and default provisions contained in the
Credit Documents, (B) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
incurrence and the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro Forma
Basis to the incurrence of such Indebtedness and to the concurrent retirement of
any other Indebtedness of any Credit Party, the Credit Parties shall be in
compliance with all of the financial covenants set forth in Section 7.18 and (C)
the aggregate principal amount of such Indebtedness shall not exceed $10,000,000
at any time outstanding; and
(ii) Guaranty Obligations of any Credit Party (other than the
Borrower) with respect to any Indebtedness of the Borrower permitted under this
Section 7.1 (other than this subparagraph (f)); and
(g) Indebtedness of Foreign Subsidiaries arising under overdraft agreements
(including the Overdraft Agreement); provided, that, the total of all such
Indebtedness shall not exceed an aggregate principal amount of $5,000,000.
7.2 Liens. None of the Credit Parties will contract, create, incur, assume
or permit to exist any Lien with respect to any of its Property, whether now
owned or hereafter acquired, except for Permitted Liens.
7.3 Nature of Business. None of the Credit Parties will substantively alter
the character or conduct of the business conducted by such Person as of the
Effective Date (except that any Credit Party may enter into lines of business
strategically related to such Credit Party's existing business) or, in the case
of any Person acquired in a Permitted Acquisition, as of the date of such
Permitted Acquisition.
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7.4 Consolidation, Merger, Dissolution, Etc. Except in connection with an
Asset Disposition permitted by the terms of Section 7.5, none of the Credit
Parties will enter into any transaction of merger or consolidation or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution); provided,
that, notwithstanding the foregoing provisions of this Section 7.4:
(a) the Borrower may merge or consolidate with any of its Wholly Owned
Subsidiaries; provided, that (i) the Borrower shall be the continuing or
surviving corporation in such merger or consolidation, (ii) the Credit Parties
shall cause to be executed and delivered such documents, instruments and
certificates as the Agent may request so as to cause the Credit Parties to be in
compliance with the terms of Section 6.11 after giving effect to such
transaction and (iii) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
transaction;
(b) any Wholly Owned Subsidiary of the Borrower may merge or
consolidate with any other Wholly Owned Subsidiary of the Borrower; provided,
that (i) the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Agent may request so as to cause
the Credit Parties to be in compliance with the terms of Section 6.11 after
giving effect to such transaction, (ii) no Default or Event of Default shall
have occurred and be continuing immediately before or immediately after giving
effect to such transaction and (iii) no merger or consolidation shall be
permitted by this clause (b) if a Foreign Subsidiary is the survivor of a merger
or consolidation between a Domestic Subsidiary and a Foreign Subsidiary;
(c) any Subsidiary of the Borrower may merge with any Person other than
a Credit Party in connection with a Permitted Acquisition if (i) such Subsidiary
shall be the continuing or surviving corporation in such merger or
consolidation, (ii) the Credit Parties shall cause to be executed and delivered
such documents, instruments and certificates as the Agent may request so as to
cause the Credit Parties to be in compliance with the terms of Section 6.11
after giving effect to such transaction, (iii) no Default or Event of Default
shall have occurred and be continuing immediately before or immediately after
giving effect to such transaction and (iv) the Borrower shall have delivered to
the Agent a Pro Forma Compliance Certificate demonstrating that, upon giving
effect on a Pro Forma Basis to such transaction, the Credit Parties shall be in
compliance with all of the financial covenants set forth in Section 7.18 as of
the last day of the most recent period of four consecutive fiscal quarters of
the Borrower which precedes or ends on the date of such acquisition and with
respect to which the Agent has received the Required Financial Information; and
(d) any Wholly Owned Subsidiary of the Borrower may dissolve, liquidate
or wind up its affairs at any time; provided, that (i) the Credit Parties shall
cause to be executed and delivered such documents, instruments and certificates
as the Agent may request to cause the Credit Parties to be in compliance with
the terms of Section 6.11 after giving effect to such transaction and (ii) no
Default or Event of Default
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shall have occurred and be continuing immediately before or after giving effect
to such transaction.
7.5 Asset Dispositions.
(a) None of the Credit Parties will make any Asset Disposition;
provided, that, the foregoing provisions of this Section 7.5 shall not prohibit
the following:
(i) any Asset Disposition by any Credit Party to the Borrower or
any Guarantor if (A) the Credit Parties shall cause to be executed and delivered
such documents, instruments and certificates as the Agent may request so as to
cause the Credit Parties to be in compliance with the terms of Section 6.11
after giving effect to such Asset Disposition and (B) after giving effect such
Asset Disposition, no Default or Event of Default exists;
(ii) the sale of inventory in the ordinary course of business;
(iii) the liquidation or sale of Cash Equivalents for the account
of the Borrower; and
(iv) any other Asset Disposition; provided, that (A) the
consideration therewith is cash or Cash Equivalents; (B) if such transaction is
a Sale and Leaseback Transaction, such transaction is permitted by the terms of
Section 7.13; (C) if such Asset Disposition is a Casualty or Condemnation, the
Net Cash Proceeds resulting therefrom are applied as required by this Agreement;
(D) such transaction does not involve the sale or other disposition of an equity
interest in any Credit Party; (E) the aggregate net book value of all of the
assets sold or otherwise disposed of by the Credit Parties in all such
transactions in reliance on this paragraph 7.5(a)(iv) (inclusive of the amount
of any Excluded Asset Dispositions pursuant to clauses (c) and/or (d) of the
definitions thereof) shall not exceed $5,000,000 in any fiscal year of the
Borrower during the term of this Agreement; and (F) no Default or Event of
Default shall have occurred and be continuing immediately before or immediately
after giving effect to such transaction.
(b) Upon consummation of an Asset Disposition permitted by this Section
7.5, the Agent shall (to the extent applicable) deliver to the Borrower, upon
the Borrower's request and at the Borrower's expense, such documentation as is
reasonably necessary to evidence the release of the Agent's security interest,
if any, in the assets being disposed of, including amendments or terminations of
UCC financing statements, if any, the return of stock certificates, if any, and
the release of such Subsidiary from all of its obligations, if any, under the
Credit Documents.
7.6 Investments; Acquisitions. None of the Credit Parties will make any
Investment in, to or for the benefit of any Person or to purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the
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assets of any other Person; provided, that, any Credit Party may purchase
inventory in the ordinary course of business and may make Permitted Investments.
7.7 Restricted Payments. None of the Credit Parties will, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except (a) dividends payable solely in common stock of such Person, (b)
dividends or other distributions payable to (i) the Borrower or any Wholly-Owned
Domestic Subsidiary of the Borrower, and (ii) the shareholders of the common
stock of the Borrower, and (c) repurchases of common stock of the Borrower from
any employee or director of, or consultant to, the Credit Parties upon the
termination of employment of such employee, such directorship or of the
consulting relationship with such consultant; provided that, the aggregate
amount paid in all such repurchases shall not exceed $1,000,000 in any fiscal
year of the Borrower during the term of this Agreement; provided, that, in each
case as set forth in clauses (a) through (c) above, no Default or Event of
Default has occurred and is continuing at such time or would exist after giving
effect to such payment on a pro forma basis as if it had been made on the first
day of the most recently completed period of four consecutive fiscal quarters of
the Borrower.
7.8 Prepayments of Indebtedness, Etc. None of the Credit Parties will (a)
after the issuance thereof, amend, waive or modify (or permit the amendment,
waiver or modification of) any of the terms, agreements, covenants or conditions
of or applicable to any Indebtedness issued by such Credit Party if such
amendment, waiver or modification would add or change any terms, agreements,
covenants or conditions in a manner adverse to any Credit Party, or shorten the
final maturity or average life to maturity or require any payment to be made
sooner than originally scheduled or increase the interest rate applicable
thereto or change any subordination provision thereof, (b) if any Default or
Event of Default has occurred and is continuing or would exist after giving
effect to such payment on a pro forma basis as if it had been made on the first
day of the most recently completed period of four consecutive fiscal quarters of
the Borrower, directly or indirectly redeem, purchase, pay or prepay, retire,
defease or otherwise acquire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness (other than Credit
Obligations), or set aside any funds for such purpose, whether such redemption,
purchase, prepayment, retirement or acquisition is made at the option of any
Credit Party or at the option of the holder thereof, and whether or not any such
redemption, purchase, prepayment, retirement or acquisition is required under
the terms and conditions applicable thereto or (c) release, cancel, compromise
or forgive in whole or in part the Indebtedness evidenced by the Intercompany
Notes.
7.9 Transactions with Affiliates. None of the Credit Parties will enter
into or permit to exist any transaction or series of transactions with (a) any
officer, director, shareholder, Subsidiary or Affiliate of any Credit Party or
(b) any Affiliate of any such officer, director, shareholder, Subsidiary or
Affiliate, other than (i) transfers of assets to any Credit Party permitted by
Section 7.5, (ii) transactions expressly permitted by Section 7.1, Section 7.4,
Section 7.5, Section 7.6 or Section 7.7, (iii) normal compensation and
reimbursement of reasonable expenses of officers and directors, and
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(iv) other transactions which are entered into in the ordinary course of such
Person's business on terms and conditions as favorable to such Person as would
be obtainable by it in a comparable arms'-length transaction with an
independent, unrelated third party.
7.10 Fiscal Year; Organizational Documents. None of the Credit Parties will
(a) change its fiscal year or (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) in
any respect or amend, modify or change its bylaws (or other similar document) in
any manner adverse in any respect to the rights or interests of the Lenders or
(c) enter into any amendment, modification or waiver that is adverse in any
respect to the Lenders to (i) any Material Contract as in effect on the Closing
Date or (ii) the Credit Documents as in effect on the Effective Date. The
Borrower will cause the Credit Parties to promptly provide the Lenders with
copies of all proposed amendments to the foregoing documents and instruments as
in effect as of the Effective Date.
7.11 Limitation on Restricted Actions. None of the Credit Parties will,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions to any Credit Party on its
Capital Stock or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party or (e) act
as a Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Agreement
and the other Credit Documents, (ii) applicable law, (iii) any document or
instrument governing Indebtedness incurred pursuant to Section 7.1(c); provided,
that, any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith (and any renewals, refinancings,
exchanges, refundings or extensions thereof, so long as the terms of such
encumbrances or restrictions are no more onerous than those with respect to such
Indebtedness upon the original incurrence thereof) or (iv) customary
non-assignment provisions in any lease governing a leasehold interest.
7.12 Ownership of Subsidiaries: Limitations on Borrower. Notwithstanding
any other provisions of this Agreement to the contrary, the Borrower will not
(i) permit any Person (other than the Borrower or any Wholly Owned Domestic
Subsidiary of the Borrower) to own any Capital Stock of any Subsidiary of the
Borrower, (ii) permit any Subsidiary of the Borrower to issue Capital Stock to
any Person, except (A) the Borrower or any Wholly Owned Domestic Subsidiary of
the Borrower or (B) to qualify directors where required by applicable law or to
satisfy other requirements of applicable law with respect to the ownership of
Capital Stock of Foreign Subsidiaries or (iii) issue or permit any Subsidiary of
the Borrower to issue any shares of Disqualified Stock or Preferred Stock.
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7.13 Sale Leasebacks. None of the Credit Parties will, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (a) which such Credit Party has sold or transferred or is to sell or
transfer to a Person which is not a Credit Party or (b) which such Credit Party
intends to use for substantially the same purpose as any other Property which
has been sold or is to be sold or transferred by such Credit Party to another
Person which is not a Credit Party in connection with such lease.
7.14 [intentionally omitted]
7.15 No Further Negative Pledges. None of the Credit Parties will enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation,
except (a) pursuant to this Agreement and the other Credit Documents and (b)
pursuant to any document or instrument governing Purchase Money Indebtedness,
provided that any such restriction contained therein relates only to the asset
or assets constructed or acquired in connection therewith.
7.16 Impairment of Security Interests. None of the Credit Parties will take
or omit to take any action, which action or omission might or would have the
result of materially impairing the security interests in favor of the Agent on
behalf of the Secured Parties with respect to the Collateral, and none of the
Credit Parties will grant to any Person (other than the Secured Parties pursuant
to the Collateral Documents) any interest whatsoever in the Collateral, except
for Permitted Liens.
7.17 Sales of Receivables. None of the Credit Parties will sell with
recourse, discount or otherwise sell or dispose of its notes or accounts
receivable.
7.18 Financial Covenants.
(a) Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed
Charge Coverage Ratio, as of the last day of any fiscal quarter of the Borrower,
to be less than 1.55 to 1.00.
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio, as
of the last day of any fiscal quarter of the Borrower, to be greater than 2.50
to 1.00.
(c) Liquidity. The Borrower shall at all times maintain a ratio of (i)
cash and Cash Equivalents of Borrower and its Domestic Subsidiaries on a
consolidated basis to (ii) (A) the outstanding principal amount of the Term
Loan, of not less than 1.10 to 1.00 and (B) the aggregate of the outstanding
principal balances of any Acquisition Loans, Term Loan and Revolving Loans, of
not less than .50 to 1.0.
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SECTION 8.
EVENTS OF DEFAULT
8.1 Events of Default. An Event of Default shall exist upon the occurrence
of any of the following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall:
(i) default in the payment when due of any scheduled principal of
any of the Term Loans or any Acquisition Loan (excluding the scheduled maturity
thereof) when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise and such default shall continue unremediated for a period
of at least three (3) Business Days after notice thereof by the Agent or the
Required Lenders; or
(ii) default, and such default shall continue unremedied for three
(3) or more Business Days after notice thereof by the Agent or the Required
Lenders, in the payment when due of any interest on the Loans, or of any Fees or
other Credit Obligations or other amounts owing hereunder, under any of the
other Credit Documents or in connection herewith or therewith;
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect on the date as of which it was made, deemed
to have been made or delivered; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 6.2, 6.9, 6.10 and 6.11 and Sections
7.1 through 7.18, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 6.1 and such default shall continue
unremedied for a period of at least five (5) Business Days after notice thereof
by the Agent or the Required Lenders; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsections (a),
(b), (c)(i) or (c)(ii) of this Section 8.1) contained in this Agreement, any of
the other Credit Documents or any Lender Hedging Agreements and such default
shall continue unremedied for a period of fifteen (15) Business Days after
notice thereof by the Agent or the Required Lenders;
(d) Other Credit Documents. Except as applicable to a Subsidiary of the
Borrower as a result of or in connection with a dissolution, merger or
disposition of
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such Subsidiary permitted under this Agreement, any Credit Document shall fail
to be in full force and effect or to give the Agent or any other Secured Party
the Liens, rights, powers and privileges purported to be created thereby
(excluding such as are solely the result of the negligence or omission of the
Secured Parties, or any of them), or any Credit Party or any Person acting by or
on behalf of any Credit Party shall so state in writing;
(e) Guarantees. The Guarantee Agreement or any provision thereof shall
cease to be in full force and effect as to any Guarantor, as applicable, and the
Borrower or such Guarantor shall fail, within thirty (30) days of notice by the
Agent or the Required Lenders, to replace such Guarantee Agreement or provision
thereof with another credit support agreement or acceptable substitute
collateral reasonably satisfactory to the Agent and the Required Lenders, or any
Guarantor or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under any such Guarantee Agreement,
except as the result of a dissolution, merger or disposition of such Guarantor
permitted under this Agreement, or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such guarantee agreement and such default
shall not be cured within the applicable cure or grace period;
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
any Credit Party;
(g) Defaults under Other Agreements.
(i) Any Credit Party shall default in the performance or observance
(beyond the applicable grace period with respect thereto, if any) of any
material obligation or condition of any contract, lease or other agreement
material to the Credit Parties, taken as a whole;
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under the Credit Documents) in excess of $3,000,000 in the aggregate
for the Credit Parties taken as a whole, (A) any Credit Party shall default in
any payment (beyond the applicable grace period with respect thereto, if any)
with respect to any such Indebtedness, (B) any Credit Party shall default in the
observance or performance of any other term, covenant, condition or agreement
relating to such Indebtedness or contained in any instrument or agreement
evidencing or securing such Indebtedness or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which default or
other event or condition is to cause, or permit the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required),
any such Indebtedness (or any portion thereof) to become due prior to its stated
maturity, (C) any such Indebtedness (or any portion thereof) shall be declared
due and payable, or shall be required to be prepaid (other than by a regularly
scheduled required payment) prior to the stated maturity thereof or (D) any
Credit Party shall be required by the terms of
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such Indebtedness to offer to prepay or repurchase such Indebtedness (or any
portion thereof) prior to the stated maturity thereof;
(h) Judgments. One or more judgments or decrees shall be entered
against one or more of the Credit Parties involving a liability of $3,000,000 or
more in the aggregate (to the extent not paid or fully covered by insurance
provided by a carrier which has acknowledged coverage and has the ability to
perform) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within sixty (60) days from the
entry thereof, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of any Credit Party to enforce any such judgment;
(i) ERISA. Any of the following events or conditions, if such event or
condition, together with all other such events or conditions, could have a
Material Adverse Effect: (i) any "accumulated funding deficiency," as such term
is defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, shall exist with respect to any Plan, or any lien shall arise on the
assets of any Credit Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single Employer Plan,
which is, in the reasonable opinion of the Agent or the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of ERISA;
(iii) an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the opinion of the Agent or the Required
Lenders, likely to result in (A) the termination of such Plan for purposes of
Title IV of ERISA or (B) any Credit Party or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; or (iv) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject any Credit Party or any
ERISA Affiliate to any liability under Section 406, 409, 502(i) or 502(l) of
ERISA or Section 4975 of the Code or under any agreement or other instrument
pursuant to which any Credit Party or any ERISA Affiliate has agreed or is
required to indemnify any Person against any such liability;
(j) [Intentionally omitted];
(k) Change of Control. There shall occur any Change of Control;
(l) Material Contracts. Any Material Contract shall be declared by any
Governmental Authority to be invalid or unenforceable in whole or in material
part or shall for any other reason not be, or shall be reasonably asserted by
any Credit Party or any Person acting by or on behalf of any Credit Party not to
be, in full force and effect and enforceable in accordance with its terms and
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect; or
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(m) Environmental Matters. Either (i) any Credit Party shall be liable,
whether directly, indirectly through required indemnification of any Person or
otherwise, for the costs of investigation and/or remediation of any Materials of
Environmental Concern originating from or affecting any property or properties,
whether or not owned, leased or operated by any Credit Party, which liability,
together with all other such liabilities, could reasonably be expected to exceed
$2,000,000 in the aggregate or require payments exceeding $2,000,000 in any
fiscal year of the Borrower or (ii) any Federal, state, regional, local or other
environmental regulatory agency or authority shall commence an investigation or
take any other action that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
8.2 Acceleration; Remedies. Upon the occurrence of an Event of Default, and
at any time thereafter unless and until such Event of Default has been waived by
the requisite Lenders (pursuant to the voting requirements of Section 10.6) or
cured to the reasonable satisfaction of the requisite Lenders (pursuant to the
voting requirements of Section 10.6), the Agent may, and upon the request and
direction of the Required Lenders shall (subject to Section 9.1), by written
notice to the Borrower, take any or all of the following actions (without
prejudice to the rights of the Agent or any Lender to enforce its claims against
the Credit Parties, except as otherwise expressly provided for in this
Agreement):
(a) Termination of Commitments. Declare the Commitments terminated,
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of all Loans, all
accrued interest in respect thereof, all accrued and unpaid Fees and other
Credit Obligations and any and all other indebtedness or obligations of any and
every kind owing by any Credit Party to the Agent and/or any of the Secured
Parties under the Credit Documents to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived.
(c) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents including all rights and
remedies existing under the Collateral Documents, all rights and remedies
against the Guarantors and all rights of set-off.
Notwithstanding the foregoing, if (x) an Event of Default specified in
Section 8.1(f) or Section 8.1(k) shall occur, then the Commitments shall
automatically terminate and all Loans, all accrued interest in respect thereof,
all accrued and unpaid Fees and other Credit Obligations and any and all other
indebtedness or obligations owing to the Agent and/or any of the Secured Parties
under the Credit Documents automatically shall immediately become due and
payable without the giving of any notice or other action by the Agent or the
Lenders, and (y) upon the request and at the direction of Required Lenders, the
Agent shall take the actions specified in Section 8.2(a).
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In case any one or more of the covenants and/or agreements set forth in
this Agreement or any other Credit Document shall have been breached by any
Credit Party, then the Agent may proceed to protect and enforce the Lenders'
rights either by suit in equity and/or by action at law, including an action for
damages as a result of any such breach and/or an action for specific performance
of any such covenant or agreement contained in this Agreement or such other
Credit Document. Without limitation of the foregoing, the Borrower agrees that
failure to comply with any of the covenants contained herein will cause
irreparable harm and that specific performance shall be available in the event
of any breach thereof. The Agent acting pursuant to this paragraph shall be
indemnified by the Borrower against all liability, loss or damage, together with
all reasonable costs and expenses related thereto (including reasonable legal
and accounting fees and expenses but excluding the fees and expenses of internal
legal counsel) in accordance with and subject to the limitations in Section
10.5.
SECTION 9.
AGENCY PROVISIONS
9.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its administrative agent under this
Agreement and the other Credit Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 9.5 and
the first two sentences of Section 9.6 hereof shall include its Affiliates and
its own and its Affiliates' officers, directors, employees, and agents): (a)
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and the other Credit Documents and shall not be a trustee or
fiduciary for any Lender or other Secured Party; (b) shall not be responsible to
the Secured Parties for any recital, statement, representation or warranty
(whether written or oral) made in or in connection with any Credit Document or
any certificate or other document referred to or provided for in, or received by
any of them under, any Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Credit
Document, or any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into or verify the performance or observance of any covenants
or agreements by any Credit Party or the satisfaction of any condition or the
use of the proceeds of the Loans or the existence or possible existence of any
Default or Event of Default or to inspect the property (including the books and
records) of any Credit Party or any of its Subsidiaries or Affiliates; (d)
unless pursuant to the specific written request of the Required Lenders, shall
not be required to initiate or conduct any litigation or collection proceedings
under any Credit Document; and (e) shall not be responsible for any action taken
or omitted to be taken by it under or in connection with any Credit Document,
except for its own gross negligence or willful misconduct. The Agent may employ
agents and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Without limiting the generality of the foregoing, the
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Agent is hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Lenders with
respect thereto, as contemplated by and in accordance with the provisions of
this Agreement and the Collateral Documents. The provisions of this Section 9
are solely for the benefit of the Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Agreement and the
other Credit Documents, the Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Party or any of their
respective Affiliates.
9.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing or other communication (including any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 10.3 hereof. As to
any matters not expressly provided for by this Agreement and the other Credit
Documents, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders (or to the extent specifically provided in Section 10.6,
all the Lenders), and such instructions shall be binding on all of the Lenders;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to any Credit
Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
9.3 Defaults. The Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 9.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.4 Rights as Lender. With respect to its Commitments and the Loans made by
it, the Agent (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender"
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or "Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. The Agent (and any successor acting as Agent) and its
Affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust or other business with any Credit
Party or any of its Subsidiaries or Affiliates as if it were not acting as
Agent, and the Agent (and any successor acting as Agent) and its Affiliates may
accept fees and other consideration from any Credit Party or any of its
Subsidiaries or Affiliates for services in connection with this Agreement or
otherwise without having to account for the same to the Secured Parties.
9.5 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 10.5 hereof, but without limiting the
obligations of the Borrower under Section 10.5) ratably in accordance with their
respective Commitments (or, if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind and nature
whatsoever that may at any time (including at any time following the final
payment of all of the obligations of the Borrower hereunder and under the other
Credit Documents) be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Credit
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Credit Document; provided, that, no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses payable by the
Borrower under Section 10.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements contained
in this Section 9.5 shall survive payment in full of the Loans and all other
amounts payable under the Credit Documents and the termination of the
Commitments hereunder.
9.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that the Agent has not made any representations or warranties to it
and that no act by the Agent hereinafter taken, including any review of the
affairs of any Credit Party or any of their respective Affiliates, shall be
deemed to constitute any representation or warranty by the Agent to any Secured
Party. Each Lender agrees that it has, independently and without reliance on the
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Credit Parties and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under the Credit
Documents. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of any Credit Party or
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any of their Affiliates that may come into the possession of the Agent or any of
its Affiliates.
9.7 Resignation of Agent. The Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a commercial bank organized under the
laws of the United States of America having combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor, such successor shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 9 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent.
SECTION 10.
MISCELLANEOUS
10.1 Notices. Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be effective (a)
when delivered, (b) when transmitted via telecopy (or other facsimile device) to
the number set forth below, (c) on the Business Day following the day on which
the same has been delivered prepaid to a reputable national overnight air
courier service or (d) on the fifth Business Day following the day on which the
same is sent by certified or registered mail, postage prepaid, in each case to
the respective parties at the address, in the case of the Borrower and the
Agent, set forth below, and, in the case of the Lenders, set forth on Schedule
2.1(a), or at such other address as such party may specify by written notice to
the other parties hereto:
if to the Borrower:
▇▇▇▇▇▇ International Inc.
1200 ▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇, Muething & ▇▇▇▇▇▇▇ P. L. L.
1400 Provident Tower
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent:
JPMorgan Chase Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Katz, Teller, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
10.2 Right of Set-Off. Upon the occurrence and during the continuance of an
Event of Default, each Lender (and each of its Affiliates) is authorized at any
time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of such
Person to such Lender (and its Affiliates) hereunder, under the Notes, under the
other Credit Documents or otherwise, irrespective of whether such Lender (or
Affiliate) shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured. Any such
set-off shall be deemed to have been made immediately upon the occurrence of an
Event of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. Each Lender agrees promptly to notify the Borrower
after any such set-off and application made by such Lender (or any of its
Affiliates); provided, however,
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that the failure to give such notice shall not affect the validity of such
set-off and application. Any Person purchasing a Participation Interest in the
Loans and Commitments hereunder pursuant to Section 2.2(c), 3.13 or 10.3(d) may
exercise all rights of setoff with respect to its Participation Interest as
fully as if such Person were a Lender hereunder. The rights of each Lender (and
its Affiliates) under this Section 10.2 are in addition to (and not in
limitation of) any other rights end remedies (including other rights of set-off)
that such Lender may have under applicable law or otherwise.
10.3 Benefit of Agreement.
(a) Generally. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided, that, the Borrower may not assign or transfer any of
its interests and obligations without prior written consent of all the Lenders
(and any such purported assignment or transfer without such consent shall be
void); provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall be limited
as set forth in this Section 10.3.
(b) Assignments. Each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Loans, its Notes and its Commitments);
provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) each such assignment shall be in an amount at least equal to
$5,000,000, except in the case of an assignment to another Lender or any
Affiliate of a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and the other Credit Documents; and
(iv) the parties to such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance, together with any
Notes subject to such assignment and a processing fee of $3,000 to be paid by
the parties to such assignment.
Upon the later of (A) the execution, delivery and acceptance of such Assignment
and Acceptance and (B) the effective date specified in such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of such assignment, have the obligations, rights and benefits of a Lender under
this Agreement and the other Credit Documents and the assigning Lender shall, to
the extent of such assignment, relinquish its rights and be released from its
obligations under this Agreement and the other Credit Documents. Upon the
consummation of any assignment pursuant to this Section 10.3(b), the assignor,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, new promissory notes reflecting such assignment are
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issued to the assignor and the assignee in the amount of their respective
interests and in substantially the form of the original Notes (but with notation
thereon that such new Notes are given in substitution for and replacement of the
original Notes or any replacements thereof). If the assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 3.10.
(c) Register. The Agent shall maintain at its address referred to in
Schedule 2.1(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitments of, and principal amounts and Interest Periods
of the Loans of each Type owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, 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. Upon its receipt of an Assignment and
Acceptance executed by the parties thereto, together with any Notes subject to
such assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in accordance with the
applicable requirements hereof, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the parties thereto.
(d) Participations. Each Lender may sell participations to one or more
Persons in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and its Loans); provided,
however, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the provisions contained in Sections 3.6, 3.9, 3.10
and 3.11 and the right of set-off contained in Section 10.2 on the same basis as
if it were a Lender, (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans, its Notes and its
Commitments (except for the obligations to such participant referred to in the
foregoing clause (iii)) and to approve any amendment, modification or waiver of
any provision of this Agreement (other than amendments, modifications or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes in which such participant is participating, extending any
scheduled principal payment date or scheduled interest payment date in respect
of such Loans or Notes in which such participant is participating, extending
such Commitments in which such participant is participating or, except as
expressly provided in the Credit Documents, releasing all or substantially all
the Collateral from the lien of the Collateral Documents or all or substantially
all the Guarantors from the Guarantee Agreement) (v) subparticipations by any
participant
89
shall be prohibited, and (vi) each such participation shall be in an amount at
least equal to $5,000,000 except in the case of a participation to another
Lender or any Affiliate of a Lender or a participation of all of a Lender's
rights and obligations under this Agreement.
(e) Regulatory Matters. Notwithstanding any other provision set forth
in this Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Lender from
its obligations hereunder.
(f) Confidentiality. Any Lender may furnish any information concerning
any Credit Party or any of its Subsidiaries or other Affiliates in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants), subject, however, to the
provisions of Section 10.14 hereof.
10.4 No Waiver; Remedies Cumulative. No failure or delay on the part of the
Agent or any other Secured Party in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Agent or any other Secured Party and any of the Credit Parties shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies of the Agent and the
other Secured Parties hereunder and under the other Credit Documents are
cumulative and not exclusive of any rights or remedies which the Agent or any
other Secured Party would otherwise have at law or otherwise. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the other
Secured Parties to any other or further action in any circumstances without
notice or demand except where notice or demand is required under the Credit
Documents.
10.5 Expenses; Indemnification.
(a) The Borrower agrees to pay within five (5) Business Days all
reasonable costs and expenses of the Agent actually incurred in connection with
the syndication, preparation, execution, delivery, administration, modification
and amendment of this Agreement, the other Credit Documents and the other
documents to be delivered hereunder, including the reasonable fees and expenses
of counsel for the Agent (but specifically excluding the cost of internal
counsel) with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under the Credit Documents up to a maximum of
$4,000. The Borrower further agrees to pay within five (5) Business Days after
demand all costs and expenses of the Agent and the Lenders, if any (including
reasonable attorneys' fees and expenses but specifically excluding the cost of
internal counsel) actually incurred in connection with (i) the enforcement
(whether through negotiations, legal proceedings or otherwise) of the Credit
Documents
90
and the other documents to be delivered hereunder and (ii) any claim in respect
of any of the Credit Obligations in any bankruptcy or insolvency proceeding
relating to any Credit Party.
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities, reasonable costs
and expenses (including reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including in connection with any
investigation, litigation or proceeding or preparation of defense in connection
therewith but specifically excluding the cost of internal counsel) (i) the
Credit Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans but specifically excluding, except as
otherwise expressly provided herein, any fees or expenses by Lender in the
participation of any of the Loans or (ii) the presence or Release of any
Materials of Environmental Concern at, under or from any Property owned,
operated or leased by any Credit Party, or the failure by any Credit Party to
comply with any Environmental Law, except to the extent such claim, damage,
loss, liability, cost or expense results from or is attributable to such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 10.5(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Credit Party, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees not to
assert any claim against the Agent, any Lender, any other Secured Party, any of
their Affiliates or any of their respective directors, officers, employees,
attorneys, agents and advisers, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Credit Documents, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 10.5 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
10.6 Amendments. Waivers and Consents. Neither this Agreement nor any other
Credit Document nor any of the terms hereof or thereof may be amended, modified
or waived, unless such amendment, modification or waiver is in writing entered
into by, or approved in writing by, the Required Lenders and the Borrower,
provided, that, no such amendment, modification or waiver shall:
(a) extend the final maturity of any Loan without the prior written
consent of each Lender holding such Loan;
91
(b) reduce the rate of interest applicable to any Credit Obligation
(other than as a result of waiving the applicability of any post-default
increase in interest rates), extend the time of payment of any interest thereon
(other than as a result of waiving any mandatory prepayment), reduce any Fees
payable hereunder or extend the time of payment of any Fees hereunder, without
the prior written consent of each Lender to whom such interest, Credit
Obligation or Fee is owed;
(c) reduce or waive the principal amount of any Loan without the prior
written consent of each Lender holding such Loan;
(d) increase the Commitment of a Lender over the amount thereof in
effect or extend the date fixed for the termination of the Commitment of a
Lender (it being understood and agreed that a waiver of any Default or Event of
Default of any mandatory reduction in the Commitments shall not constitute an
increase in the terms of any Commitment of any Lender), without the prior
written consent of such Lender,
(e) release all or substantially all of the Collateral from the Lien of
the Collateral Documents (except as expressly provided in the Credit Documents),
without the prior written consent of each Lender;
(f) release the Borrower or, except as expressly provided in the Credit
Documents, all or substantially all of the Guarantors from its or their
obligations under the Credit Documents, without the prior written consent of
each Lender;
(g) amend, modify or waive any provision of this Section 10.6 or
Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 8.1(a), 10.2,
10.3, 10.5 or 10.9, without the prior written consent of each Lender;
(h) amend, modify or waive any provision of Section 7.18 without the
prior written consent of each Lender, provided however, the Required Lenders may
waive any provision(s) of Section 7 for up to ninety consecutive days;
(i) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders, or otherwise change the percentage of the
Commitments, the percentage of the aggregate unpaid principal amount of the
Notes or the number of Lenders which shall be required for the Lenders or any of
them to take action under any provision of this Agreement or any other Credit
Document, without the prior written consent of each Lender;
(j) consent to the assignment or transfer by the Borrower or any
Guarantor of any of its rights and obligations under or in respect of the Credit
Documents (except as expressly provided in the Credit Documents), without the
prior written consent of each Lender;
(k) increase the total Commitments or otherwise increase the aggregate
principal amount of obligations which are secured by the Collateral, without the
prior written consent of each Lender;
92
(l) effect any waiver, amendment or modification of Section 7.8(a) with
respect to the subordination provisions of any Indebtedness, without the prior
written consent of each Lender; or
(m) amend any provision of Section 9 or otherwise affect any rights or
duties of the Agent, without the prior written consent of the Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding. The various
requirements of this Section 10.6 are cumulative. Each Lender and each holder of
a Note shall be bound by any waiver, amendment or modification authorized by
this Section 10.6 regardless of whether its Note shall have been marked to make
reference thereto, and any consent by any Lender or holder of a Note pursuant to
this Section 10.6 shall bind any Person subsequently acquiring a Note from it,
whether or not such Note shall have been so marked.
10.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Agreement.
10.8 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
10.9 Survival. All indemnities set forth herein, including in Sections 3.6,
3.10, 3.11, 9.5 and 10.5, and the undertakings set forth in Section 10.14, shall
survive the execution and delivery of this Agreement, the making of the Loans,
the repayment of the Loans and other obligations under the Credit Documents and
the termination of the Commitments hereunder, and all representations and
warranties made by the Borrower herein and by the Lenders in Section 10.15
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
93
10.10 Governing Law, Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN SUCH OTHER CREDIT DOCUMENTS) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO. Any
legal action or proceeding with respect to this Agreement or any other Credit
Document may be brought in the courts of the State of Ohio in ▇▇▇▇▇▇▇▇ County,
or of the United States for the Southern District, Western Division of Ohio,
and, by execution and delivery of this Agreement, the Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. The Borrower
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set forth for notices pursuant to Section 10.1, such service to become effective
five (5) days after such mailing. Nothing herein shall affect the right of the
Agent or any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in subsection (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS
AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.11 Severability. If any provision of any of the Credit Documents is
judicially determined to be illegal, invalid or unenforceable, such provision
shall be fully severable and the remaining provisions shall remain in full force
and effect and shall be construed without giving effect to the illegal, invalid
or unenforceable provisions. In such event, the parties hereto shall endeavor in
good faith negotiations to replace any such invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
10.12 Entirety. This Agreement, the other Credit Documents and the Lender
Hedging Agreements, if any, represent the entire agreement of the parties hereto
and thereto regarding the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, if any (including any
commitment
94
letters or correspondence), relating to such subject matters. Nothing in this
Agreement or any other Credit Document, expressed or implied, is intended to
confer upon any party (other than the parties hereto and thereto and the other
Secured Parties) any rights, remedies, obligations or liabilities under or by
reason of this Agreement and the other Credit Documents.
10.13 Binding Effect; Termination.
(a) This Agreement shall become effective at such time on or after the
Effective Date when it shall have been executed by the Borrower and the Agent,
and the Agent shall have received copies hereof (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender, and thereafter this
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans or any other
amounts payable hereunder or under any of the other Credit Documents shall
remain outstanding, all of the Credit Obligations have been irrevocably
satisfied in full and all of the Commitments hereunder shall have expired or
been terminated.
10.14 Confidentiality. Each of the Agent and the Lenders (each, a "Lending
Party") agrees, during the term of this Agreement and at all times thereafter,
to keep confidential any information furnished or made available to it by any
Credit Party pursuant to this Agreement that is marked confidential or that is
disclosed pursuant to written instructions from the Credit Party that the
confidentiality of such information must be maintained by the Lending Parties;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending Party
or Affiliate of any Lending Party, (b) as required by any law, rule or
regulation, (c) upon the order of any court of administrative agency, (d) upon
the request or demand of any regulatory agency or authority, (e) that is or
becomes available to the public or that is or becomes available to any Lending
Party other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (f) in connection with any litigation to which such Lending
Party or any of its Affiliates maybe a party, (g) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Credit Document, (h) subject to provisions substantially similar to those
contained in this Section 10.14, to any actual or proposed participant or
assignee and (i) to the extent that the Borrower shall have consented in writing
to such disclosure. Nothing set forth in this Section 10.14 shall obligate the
Agent or any Lender to return any materials furnished by the Credit Parties.
Without limiting Borrower's rights herein, each of Lenders and Agent acknowledge
that Borrower may file a Form 8-K with certain of the Credit Documents as
attachments as Borrower may reasonably determine is necessary to comply with
applicable securities laws and regulations.
10.15 Source of Funds. Each of the Lenders hereby represents and warrants
to the Borrower that at least one of the following statements is an accurate
representation
95
as to the source of funds to be used by such Lender in connection with the
financing hereunder:
(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Lender in which any employee benefit plan (or its
related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender has
disclosed to the Borrower the name of each employee benefit plan whose assets in
such account exceed 10% of the total assets of such account as of the date of
such purchase (and, for purposes of this subsection (b), all employee benefit
plans maintained by the same employer or employee organization are deemed to be
a single plan);
(c) to the extent that any part of such funds constitutes assets of an
insurance company's general account, such insurance company has complied with
all of the requirements of the regulations issued under Section 401(c)(1)(A) of
ERISA; or
(d) such funds constitute assets of one or more specific benefit plans
which such Lender has identified in writing to the Borrower.
As used in this Section 10.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
10.16 Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of any other
Credit Document, on the other hand, this Agreement shall control.
10.17 Customer Identification - USA Patriot Act Notice The Bank hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56, signed into law October 26, 2001) (the "Act"), and
the Bank's policies and practices, the Bank is required to obtain, verify and
record certain information and documentation that identifies the Borrower, which
information includes the name and address of the Borrower and such other
information that will allow the Bank to identify the Borrower in accordance with
the Act.
[Signature Page to Follow]
96
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: ▇▇▇▇▇▇ INTERNATIONAL INC.,
an Ohio corporation
By:________________________
Name:______________________
Title:_____________________
LENDERS:
JPMORGAN CHASE BANK, N.A., KEYBANK NATIONAL ASSOCIATION
Successor by merger to Bank One, NA
Lender and in its capacity as Agent
By:______________________________ By:__________________________
Name:____________________________ Name:________________________
Title:___________________________ Title:_______________________
Applicable Lending Office: Applicable Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
97
EXHIBIT A-1
THIRD AMENDED AND RESTATED REVOLVING NOTE
Cincinnati, Ohio
$14,000,000 May 27, 2005
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of JPMORGAN
CHASE BANK, N.A., successor by merger to Bank One, NA (the "Lender"), at the
office of JPMORGAN CHASE BANK, N.A., successor by merger to Bank One, NA, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Agency Services (i) on the
last day of each Interest Period (as defined in the Second Amended and Restated
Credit Agreement dated as of May 27, 2005, (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
several lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A.,
successor by merger to Bank One, NA, as Agent (the "Agent")), the aggregate
unpaid principal amount of all Revolving Loans to the Borrower from the Lender
pursuant to the Credit Agreement to which such Interest Period applies and (ii)
on the Revolving Maturity Date, the aggregate unpaid principal amount of all
Revolving Loans to the Borrower from the Lender pursuant to the Credit
Agreement, in each case in lawful money of the United States of America in
immediately available funds, and to pay interest from the date hereof on the
principal amount hereof from time to time outstanding, in like funds, at said
office, at the rate or rates per annum and on the dates provided in the Credit
Agreement. This Note amends and restates in its entirety that certain Second
Amended and Restated Revolving Note dated as of May 14, 2003 in the principal
amount of $7,000,000 and payable to the order of Lender (the "Prior Note"). This
Note is issued upon surrender of and in exchange for the Prior Note. This Note
shall not be construed as a novation or be construed in any manner as an
extinguishment of the obligations arising under the Prior Note or to effect the
priority of the security interest granted in connection with any of the
promissory notes executed pursuant to the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this promissory note (this "Note") by reference in the
same manner and with the same effect as if set forth herein and, subject to
Section 10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate or rates provided in the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for
payment, protest, notice of any kind (including notice of dishonor, notice of
protest, notice of intention to accelerate and notice of acceleration but except
for notice provided pursuant to the express terms of the Credit Agreement) and
diligence in collecting and bringing suit against any party hereto, and agree
(i) to all extensions and partial payments, with or without notice, before or
after maturity, (ii) to any substitution, exchange or release of any security
now or hereafter given for this Note, (iii) to the release of any party
primarily or secondarily liable hereon and (iv) that it will not be necessary
for the Agent or any Lenders, in order to enforce payment of this Note, to first
institute or exhaust their remedies against the Borrower or any other party
liable therefor or against any security for this Note. The nonexercise by the
holder of any of its rights hereunder in any particular instance shall not
constitute a waiver thereof in that or any subsequent instance.
Principal and interest shall be paid to the Agent at its address set forth
above, or at such other place as the holder of this Note shall designate in
writing to the Borrower. Each Revolving Loan made by the Lender, and all
payments on account of the principal and interest thereof shall be recorded on
the books and records of the Lender or Agent and the principal balance as shown
on such books and records, or any copy thereof certified by an officer of the
Lender or Agent, shall be rebuttably presumptive evidence of the principal
amount owing hereunder.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and
mandatory prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:_________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Senior Vice President
2
EXHIBIT A-2
THIRD AMENDED AND RESTATED REVOLVING NOTE
Cincinnati, Ohio
$6,000,000 May 27, 2005
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the "Lender"), at the office of JPMORGAN CHASE BANK, N.A.,
successor by merger to Bank One, NA, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Agency Services (i) on the last day of each Interest Period
(as defined in the Second Amended and Restated Credit Agreement dated as of May
27, 2005 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), among the Borrower, the several lenders from time to time
party thereto and JPMORGAN CHASE BANK, N.A., successor by merger to Bank One,
NA, as Agent (the "Agent")), the aggregate unpaid principal amount of all
Revolving Loans to the Borrower from the Lender pursuant to the Credit Agreement
to which such Interest Period applies and (ii) on the Revolving Maturity Date,
the aggregate unpaid principal amount of all Revolving Loans to the Borrower
from the Lender pursuant to the Credit Agreement, in each case in lawful money
of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
on the dates provided in the Credit Agreement. This Note amends and restates in
its entirety that certain Second Amended and Restated Revolving Note dated as of
May 14, 2003 in the principal amount of $3,000,000 and payable to the order of
Lender ("Prior Note"). This Note is issued upon surrender of and in exchange for
the Prior Note. This Note shall not be construed as a novation or be construed
in any manner as an extinguishment of the obligations arising under the Prior
Note or to effect the priority of the security interest granted in connection
with any of the promissory notes executed pursuant to the Credit Agreement
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this promissory note (this "Note") by reference in the
same manner and with the same effect as if set forth herein and, subject to
Section 10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate or rates provided in the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest,
notice of intention to accelerate and notice of acceleration but except for
notice provided pursuant to the express terms of the Credit Agreement) and
diligence in collecting and bringing suit against any party hereto, and agree
(i) to all extensions and partial payments, with or without notice, before or
after maturity, (ii) to any substitution, exchange or release of any security
now or hereafter given for this Note, (iii) to the release of any party
primarily or secondarily liable hereon and (iv) that it will not be necessary
for the Agent or any Lenders, in order to enforce payment of this Note, to first
institute or exhaust their remedies against the Borrower or any other party
liable therefor or against any security for this Note. The nonexercise by the
holder of any of its rights hereunder in any particular instance shall not
constitute a waiver thereof in that or any subsequent instance.
Principal and interest shall be paid to the Agent at its address set forth
above, or at such other place as the holder of this Note shall designate in
writing to the Borrower. Each Revolving Loan made by the Lender, and all
payments on account of the principal and interest thereof shall be recorded on
the books and records of the Lender or Agent and the principal balance as shown
on such books and records, or any copy thereof certified by an officer of the
Lender or Agent, shall be rebuttably presumptive evidence of the principal
amount owing hereunder.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and
mandatory prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:__________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Senior Vice President
2
EXHIBIT B-1
AMENDED AND RESTATED TERM NOTE
Cincinnati, Ohio
$4,200,000 May 27, 2005
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of JPMORGAN
CHASE BANK, N.A., successor by merger to Bank One, NA (the "Lender"), at the
office of JPMORGAN CHASE BANK, N.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Agency Services the sum of Four Million Two Hundred Thousand
Dollars ($4,200,000) loaned to Borrower pursuant to the provisions of the Second
Amended and Restated Credit Agreement dated as of the date hereof (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, the several lenders from time to time party thereto and
JPMorgan Chase Bank, N.A., as Agent (the "Agent"), and to pay interest from the
date hereof on the principal amount hereof from time to time outstanding, in
like funds, at said office, at the rate or rates per annum and on the dates
provided in the Credit Agreement, in each case in lawful money of the United
States of America in immediately available funds. This Note amends, restates and
replaces the Term Note dated as of June 3, 2002 in the original principal amount
of $8,400,000 ("Prior Note"). This Note is issued upon surrender of and in
exchange for the Prior Note. This Note shall not be construed as a novation or
be construed in any manner as an extinguishment of the obligations arising under
the Prior Note or to effect the priority of the security interest granted in
connection with any of the promissory notes executed pursuant to the Credit
Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this Term Note (this "Note") by reference in the same
manner and with the same effect as if set forth herein and, subject to Section
10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The principal amount of this Note shall be subject to, and the undersigned
shall be obligated to make, mandatory quarterly payments of the principal amount
of this Note, with each such quarterly payment to be in the amount of $525,000
and to be due and payable on or before the last Business Day of each March,
June, September and December (a "Payment Date") commencing June 28, 2002 and on
each Payment Date thereafter. The entire outstanding principal and all remaining
accrued interest on this Note shall be due and payable in full on or before
March 31, 2007 or such earlier date as is provided in the Loan Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates on
the Interest Payment Dates and at the rate or rates provided in the Credit
Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration but except for notice provided pursuant to the express terms of the
Credit Agreement) and diligence in collecting and bringing suit against any
party hereto, and agree (i) to all extensions and partial payments, with or
without notice, before or after maturity, (ii) to any substitution, exchange or
release of any security now or hereafter given for this Note, (iii) to the
release of any party primarily or secondarily liable hereon and (iv) that it
will not be necessary for the Agent or any Lenders, in order to enforce payment
of this Note, to first institute or exhaust their remedies against the Borrower
or any other party liable therefor or against any security for this Note. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, that, the failure of the holder hereof to make such a notation or any
error in such a notation shall not in any manner affect the obligation of the
Borrower to make payments of principal and interest in accordance with the terms
of this Note and the Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
2
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Senior Vice President
3
EXHIBIT B-2
AMENDED AND RESTATED TERM NOTE
Cincinnati, Ohio
$1,800,000 May 27, 2005
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the "Lender"), at the office of JPMORGAN CHASE BANK, N.A.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Agency Services the sum
of One Million Eight Hundred Thousand Dollars ($1,800,000) loaned to Borrower
pursuant to the provisions of the Second Amended and Restated Credit Agreement
dated as of the date hereof (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among the Borrower, the several lenders
from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent (the
"Agent"), and to pay interest from the date hereof on the principal amount
hereof from time to time outstanding, in like funds, at said office, at the rate
or rates per annum and on the dates provided in the Credit Agreement, in each
case in lawful money of the United States of America in immediately available
funds. This Note amends, restates and replaces the Term Note dated as of June 3,
2002 ("Prior Note"). This Note is issued upon surrender of and in exchange for
the Prior Note. This Note shall not be construed as a novation or be construed
in any manner as an extinguishment of the obligations arising under the Prior
Note or to effect the priority of the security interest granted in connection
with any of the promissory notes executed pursuant to the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this Term Note (this "Note") by reference in the same
manner and with the same effect as if set forth herein and, subject to Section
10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The principal amount of this Note shall be subject to, and the undersigned
shall be obligated to make, mandatory quarterly payments of the principal amount
of this Note, with each such quarterly payment to be in the amount of $225,000
and to be due and payable on or before the last Business Day of each March,
June, September and December (a "Payment Date") commencing June 28, 2002 and on
each Payment Date thereafter. The entire outstanding principal and all remaining
accrued interest on this Note shall be due and payable in full on or before
March 31, 2007 or such earlier date as is provided in the Loan Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates on
the Interest Payment Dates and at the rate or rates provided in the Credit
Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration but except for notice provided pursuant to the express terms of the
Credit Agreement) and diligence in collecting and bringing suit against any
party hereto, and agree (i) to all extensions and partial payments, with or
without notice, before or after maturity, (ii) to any substitution, exchange or
release of any security now or hereafter given for this Note, (iii) to the
release of any party primarily or secondarily liable hereon and (iv) that it
will not be necessary for the Agent or any Lenders, in order to enforce payment
of this Note, to first institute or exhaust their remedies against the Borrower
or any other party liable therefor or against any security for this Note. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, that, the failure of the holder hereof to make such a notation or any
error in such a notation shall not in any manner affect the obligation of the
Borrower to make payments of principal and interest in accordance with the terms
of this Note and the Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
2
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Senior Vice President
3
EXHIBIT C
[FORM OF]
INTERCOMPANY NOTE
$___________________ ______________, 200_
FOR VALUE RECEIVED, the undersigned, _______________, a corporation
organized under the laws of ____________________ (the "Borrower"), hereby
promises to pay to the order of _______________________, a corporation organized
under the laws of the State of ______________ (the "Lender"), at
________________, (i) the principal amount of up to $ or, if less, the aggregate
unpaid principal amount of each loan or advance made by the Lender to the
Borrower, at any time upon demand by the Lender, in lawful money of the United
States of America in immediately available funds, and (ii) interest from the
date hereof on the principal amount hereof from time to time outstanding, in
like funds, at a rate per annum equal to the rate applicable at such time to
Base Rate Loans pursuant to Section 2.1 of the Credit Agreement referred to
below. This Note may be prepaid in whole or in part at any time without premium
or penalty. Amounts prepaid on this Note may be reborrowed. Terms used herein
and not otherwise defined herein shall have the meanings assigned to them in the
Second Amended and Restated Credit Agreement dated as of May 27, 2005 (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), among ▇▇▇▇▇▇ International Inc., the several lenders from time to
time party thereto, and JPMorgan Chase Bank, N.A., as Agent.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate per annum applicable pursuant to the preceding paragraph, plus 2.00%.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive
grace, presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration) and diligence in collecting and bringing suit against any party
hereto, and agree (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon and (iv) that it will not be
necessary for the Lender, or any of its successors or assigns, in order to
enforce payment of this Note, to first institute or exhaust their remedies
against the Borrower or any other party liable therefor or against any security
for this Note. The nonexercise by the holder of any of its rights hereunder in
any particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
The outstanding principal balance of the loans and advances evidenced by
this Note shall automatically become immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
expressly waived by the Borrower, upon the occurrence of an Event of Default
under the Credit Agreement.
The Lender hereby subordinates in right of payment all indebtedness of the
Borrower owing to it, whether originally contracted with the Lender or acquired
by the Lender by assignment, transfer or otherwise, whether now owed or
hereafter arising, whether for principal, interest, fees, expenses or otherwise,
together with all renewals, extensions, increases or rearrangements thereof, to
the prior indefeasible payment in full in cash of the Secured Obligations (as
defined in the Pledge Agreement), whether now owed or hereafter arising, whether
for principal, interest (including interest accruing after the filing of a
petition initiating any proceeding referred to in Section 8.1(f) of the Credit
Agreement), fees, expenses or otherwise, together with all renewals, extensions,
increases or rearrangements thereof.
This Note shall be construed in accordance with and governed by the laws of
the State of Ohio, without regard to principles of conflicts of laws, and any
applicable laws of the United States of America.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
[Borrower], a [ ] corporation,
By:_____________________________
Name:___________________________
Title:__________________________
Accepted and agreed to as of the date first written above:
[Lender], a [___________] corporation
By:_____________________________
Name:___________________________
Title:__________________________
2
ASSIGNMENT
FOR VALUE RECEIVED, [Lender] hereby assigns and transfers unto
____________________________ the Intercompany Note dated as of [___________],
200 and made by [Borrower].
Dated:_____________________
[Lender]
By:________________________
Title:_____________________
3
[Borrower] hereby consents to
the foregoing Assignment
[Borrower]
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT D
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated as of [__________] made by
[_________________] (the "Assignor") to [_______________________], who is an
Eligible Assignee (the "Assignee") with reference to the Second Amended and
Restated Credit Agreement dated as of May __, 2005 (as amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), among
▇▇▇▇▇▇ International Inc. (the "Borrower"), the several lenders from time to
time party thereto (the "Lenders") and JPMorgan Chase Bank, N.A., as Agent (the
"Agent"). Terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Assignor and the Assignee hereby agree as follows:
1. Effective as of the effective date set forth on Schedule 1 (the
"Effective Date"), the Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse or
warranty except as set forth herein and in the provisions of the Credit
Agreement incorporated herein, from the Assignor, the Assigned Interests (as
defined below). The "Assigned Interests" shall mean and consist of the
respective rights and obligations of the Assignor in respect of a portion or all
of the Assignor's Loans, Participation Interests and Commitments as of the
Effective Date to the extent of the percentage set forth on Schedule 1
(including the Revolving Commitments of the Assignor on the Effective Date and
the Loans owing to, and the Participation Interests of, the Assignor which are
outstanding on the Effective Date), together with any amount of unpaid interest
accrued on the assigned Loans to the Effective Date which amount is set forth on
Schedule 1 and any amount of Fees accrued to the Effective Date for the account
of the Assignor which amount is set forth on Schedule 1.
2. (a) By executing and delivering this Assignment and Acceptance, the
Assignor and Assignee hereby confirm to and agree with each other, the other
Lenders, the Agent and the Credit Parties as follows: (i) the Assignor warrants
that it is the legal and beneficial owner of the Assigned Interests free and
clear of any adverse claim arising in respect of any action by the Assignor;
(ii) except as set forth in clause (i) above, the Assignor makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement, any other Credit Document or any other instrument or document
furnished pursuant to the Credit Agreement or to the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Credit Document or any other instrument or document
furnished
pursuant thereto, or the financial condition of the Borrower or any Subsidiary
or the performance or observance by the Borrower or any Subsidiary of any of its
obligations under the Credit Agreement, the other Credit Documents or any other
instrument or document furnished pursuant thereto; (iii) the Assignee represents
and warrants that it is an Eligible Assignee, (iv) the Assignee represents and
warrants that it has received a copy of each of the Credit Documents, together
with a copy of the most recent financial statements delivered pursuant to
Section 6.1 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (v) the Assignee will independently, and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as is shall deem appropriate at the time,
continue to make its own credit decision in taking or not, taking action under
the Credit Agreement; (vi) the Assignee appoints and authorizes the Agent to
exercise such powers under the Credit Agreement as are delegated to such party
by the terms thereof, together with such power as are reasonably incidental
thereto; and (vii) the Assignee agrees that it will perform, in accordance with
their terms, all obligations which by the terms of the Credit Agreement are
required to be performed by the Assignee as a Lender.
(b) From and after the Effective Date, (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and, to the extent of
the Assigned Interests, have the rights and obligations of a Lender thereunder
and under the other Credit Documents and (ii) the Assignor shall, to the extent
of the Assigned Interests, relinquish its rights and be released from its
obligations under the Credit Agreement but shall continue to be entitled to the
benefits of Sections 3.6, 3.10 and 10.9 thereunder.
3. (a) Fees and interest are payable by the Borrower in respect of the
Assigned Interests as provided in the Credit Agreement. Such Fees and interest
shall be payable to the Assignee only to the extent such Fees and interest, as
applicable, constitute part of the Assigned Interests or accrue after the
Effective Date.
(c) Notwithstanding anything to the contrary contained in this
Assignment and Acceptance, if and when the Assignor receives or collects any
payment of Fees or interest which is payable to the Assignee pursuant to
paragraph (a) above, the Assignor shall distribute such payment to the Assignee.
(d) Notwithstanding anything to the contrary contained in this
Assignment and Acceptance, if and when the Assignee receives or collects any
payment of Fees or interest which is payable to the Assignor pursuant to
paragraph (a) above, the Assignee shall distribute such payment to the Assignor.
4. In consideration of the assignment by the Assignor to the Assignee of
the Assigned Interests as set forth above, the Assignee agrees to pay the
Assignor on or
2
prior to the Effective Date the aggregate amount specified on, or calculated as
provided on, Schedule 1 (the "Aggregate Assignment Payment").
5. This Assignment and Acceptance shall become effective as provided in
Section 10.3(b) of the Credit Agreement.
6. All amounts payable to the Assignor hereunder shall be paid in U.S.
Dollars by transfer of federal funds to the Assignor, ABA No. [______________],
Account No. [_____________], Attention: [_____________], Reference: ▇▇▇▇▇▇
International Inc.
7. This Assignment and Acceptance is being delivered to the Agent together
with (a) the Note evidencing the Loan included in the Assigned Interests, (b) if
the Assignee is organized under the laws of a jurisdiction outside the United
States, the forms specified in Section 3.10 of the Credit Agreement, duly
completed and executed by such Assignee, (c) if the Assignee is not already a
Lender or Affiliate thereof under the Credit Agreement, an Administrative
Questionnaire duly completed by such Assignee and (d) a processing and
recordation fee of $3,000.
8. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
9. This Assignment and Acceptance may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
admissible into evidence, but all such counterparts shall together constitute
but one and the same Assignment and Acceptance. Delivery of an executed
counterpart of this Assignment and Acceptance by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this Assignment and
Acceptance. Any party delivering an executed counterpart of this Assignment and
Acceptance by facsimile shall also deliver a manually executed counterpart of
this Assignment and Acceptance, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Assignment and Acceptance.
3
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be duly executed by their respective authorized
officers as of the day and year first above written.
[NAME OF ASSIGNOR]
_________________________, as Assignor
By:_____________________________
Name:___________________________
Title:__________________________
[NAME OF ASSIGNEE]
__________________________, as Assignee
By:_____________________________
Name:___________________________
Title:__________________________
Accepted and agreed to
as of the Effective Date:
JPMORGAN CHASE BANK, N.A.,
as Agent
Name:___________________________
Title:__________________________
▇▇▇▇▇▇ INTERNATIONAL INC.
as Borrower
Name:___________________________
Title:__________________________
4
SCHEDULE I to ASSIGNMENT AND ACCEPTANCE
1. Date of Assignment:
2. Legal Name of Assignor:
3. Legal Name of Assignee:
4. Assignee's Address and Telecopy Number for Notices:
5. Effective Date of Assignment and Acceptance:
6. Assigned Interests:
A. Percentage of Revolving Commitment Assigned: %
B. Aggregate principal amount of Revolving Loans assigned: $
C. Aggregate principal amount of Participation Interests assigned: $
D. Accrued and unpaid interest assigned (if any)
e. Accrued and unpaid Fees assigned (if any)
i. Unused Fees: $_________
7. Aggregate Assignment Payment:
$ __________________ (may specify method of calculation in
lieu of an amount)
EXHIBIT E
[FORM OF]
NOTICE OF REVOLVING BORROWING
____________________
[Date]
JPMORGAN CHASE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Agency Services
Re: The Second Amended and Restated Credit Agreement dated as of May
27, 2005 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among ▇▇▇▇▇▇ International
Inc. ("Borrower"), the several lenders from time to time party
thereto and JPMorgan Chase Bank, N.A., as Agent
This Notice of Borrowing is delivered to you pursuant to Section 2.1(b)(i)
of the Credit Agreement, is irrevocable and constitutes Borrower's request to
borrow in the amounts and in the manner set forth below. The information
relating to the proposed borrowing is as follows:
8. A Revolving Loan is requested.
9. The date (which shall be a Business Day) of the proposed
borrowing is ______________, 200_.
10. The amount of the proposed borrowing is $_____________.
11. The borrowing is to be comprised of [Base Rate] [Eurodollar]
Loans.
12. If the borrowing is comprised of Eurodollar Loans, the Interest
Period with respect thereto is __________________.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement. In the event of any conflict or
inconsistency between the terms hereof and the terms in the Credit Agreement,
the terms in the Credit Agreement shall be controlling.
The undersigned hereby certifies that, as of the date hereof, the
information herein is true and complete.
Very truly yours,
▇▇▇▇▇▇ INTERNATIONAL INC.
By:__________________________
Name:________________________
Title:_______________________
2
EXHIBIT F
ACQUISITION TERM NOTE
Cincinnati, Ohio
$_________________ __________, 200__
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Lender"), at the office of JPMORGAN CHASE BANK, N.A..,
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Agency Services the
sum of _______________ Dollars ($______) loaned to Borrower pursuant to the
provisions of the Second Amended and Restated Credit Agreement dated as of May
27, 2005 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), among the Borrower, the several lenders from time to time
party thereto and JPMorgan Chase Bank, N.A., as Agent (the "Agent"), and to pay
interest from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
on the dates provided in the Credit Agreement, in each case in lawful money of
the United States of America in immediately available funds.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this Acquisition Term Note (this "Note") by reference
in the same manner and with the same effect as if set forth herein and, subject
to Section 10.3 of the Credit Agreement, any holder of this Note is entitled to
the benefits of and remedies provided in the Credit Agreement and the other
Credit Documents.
The principal amount of this Note shall be subject to, and the undersigned
shall be obligated to make, mandatory quarterly payments of the principal amount
of this Note, with each such quarterly payment to be in the amount of [Insert
amount equal to principal amount of note divided by twenty] and to be due and
payable on or before the first Business Day of each March, June, September and
December (a "Payment Date") commencing [Insert first payment date following date
of note] and on each Payment Date thereafter. The entire outstanding principal
and all remaining accrued interest on this Note shall be due and payable in full
on or before [insert date of 20th quarterly payment] or such earlier date as is
provided in the Loan Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates on
the Interest Payment Dates and at the rate or rates provided in the Credit
Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration but except for notice provided
pursuant to the express terms of the Credit Agreement) and diligence in
collecting and bringing suit against any party hereto, and agree (i) to all
extensions and partial payments, with or without notice, before or after
maturity, (ii) to any substitution, exchange or release of any security now or
hereafter given for this Note, (iii) to the release of any party primarily or
secondarily liable hereon and (iv) that it will not be necessary for the Agent
or any Lenders, in order to enforce payment of this Note, to first institute or
exhaust their remedies against the Borrower or any other party liable therefor
or against any security for this Note. The nonexercise by the holder of any of
its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, that, the failure of the holder hereof to make such a notation or any
error in such a notation shall not in any manner affect the obligation of the
Borrower to make payments of principal and interest in accordance with the terms
of this Note and the Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal of and
interest on this Note, all costs of collection, including reasonable attorneys'
fees.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:_____________________________
Name:___________________________
Title:__________________________
2
EXHIBIT G
[FORM OF]
NOTICE OF EXTENSION/CONVERSION
____________________
[Date]
JPMORGAN CHASE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Agency Services
Re: The Second Amended and Restated Credit Agreement dated as of May
27, 2005 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among ▇▇▇▇▇▇ International
Inc. ("Borrower"), the several lenders from time to time party
thereto and JPMorgan Chase Bank, N.A., as Agent
This Notice of Extension/Conversion is delivered to you pursuant to Section
2.4/Section 3.2 of the Credit Agreement, is irrevocable and constitutes
Borrower's request to [extend an existing Revolving Loan into a subsequent
permissible Interest Period] [convert existing Revolving Loans into Revolving
Loans of another Type] [convert the interest rate on all or a portion of the
Term Loans to an Adjusted Eurodollar Rate] in the manner set forth below. The
Borrower certifies and warrants to Agent and requests of Agent as follows:
1. The request in this Notice of Extension/Conversion is being made with
respect to $________ [specify amount, which must be a minimum of $500,000 and
integral multiples of $100,000 in excess thereof for conversion to a Eurodollar
Loan or for a Term Loan or $100,000 and integral multiples of $100,000 in excess
thereof (or the then remaining amount of the Revolving Commitment amount if
less) in the event of a Base Rate Loan] of the principal balance of the
[Revolving Credit Loans][Term Loans] (hereinafter, the "Subject Principal");
2. As of the date hereof, the Subject Principal [[is a __________ [insert
"Base Rate Loan" or "Eurodollar Loan"][ [Term Loan which presently bears
interest at an [insert "Adjusted Eurodollar Rate" or "Adjusted Base Rate"]];
3. [Skip to Item 4 if you answered Base Rate Loan/Adjusted Base Rate in
Item 2 above]. The Interest Period applicable to the Subject Principal will
expire on ____________ [insert the date (i.e., month, day and year) of the last
day of the current Interest Period].
4. The Borrower requests that the Subject Principal be changed to
[a_________ [insert either "Base Rate Loan" or "Eurodollar Loan"] [bear interest
at an [insert either "Adjusted Base Rate" or "Adjusted Eurodollar Rate"]] ;
5. [Skip to Item 6 if you requested a Base Rate Loan/Adjusted Base Rate in
Item 4]. The Interest Period requested by Borrower with respect to the
Eurodollar Loan/Adjusted Eurodollar Rate for the Subject Principal is $________
[insert "one month," "two months," "three months," "six months" or "twelve
months" in the blank, but do not select an Interest Period that extends beyond
the Maturity Date].
6. Borrower requests that the effective date of the change requested in
this Notice of Extension/Conversion be ________ [insert the date the change is
to be effective, which date must be (i) at least the next Business Day in the
event of receipt of the request after 12:00 noon (Cincinnati, Ohio time) on a
Business Day, in the case of a conversion of a Eurodollar Loan/Adjusted
Eurodollar Rate into a Base Rate Loan/Adjusted Base Rate or (ii) at least three
Business Days following the date hereof in the event of conversion of a Base
Rate Loan/Adjusted Base Rate into a Eurodollar Loan/Adjusted Eurodollar Rate].
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement. In the event of any conflict or
inconsistency between the terms hereof and the terms in the Credit Agreement,
the terms in the Credit Agreement shall be controlling.
The undersigned hereby certifies that, as of the date hereof, the
information herein is true and complete.
Very truly yours,
▇▇▇▇▇▇ INTERNATIONAL INC.
By:_________________________
Name:_______________________
Title:______________________
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EXHIBIT H
▇▇▇▇▇▇ INTERNATIONAL INC.
OFFICER'S CERTIFICATE
The undersigned hereby certifies that:
1. He is the duly elected, qualified and acting Chief Financial Officer of
▇▇▇▇▇▇ International Inc., an Ohio corporation (the "Company").
2. He has reviewed and is familiar with that certain Second Amended and
Restated Credit Agreement dated as of May 27, 2005 (as amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), among the
Company, the several lenders from time to time party thereto (the "Lenders") and
JPMorgan Chase Bank, N.A., as Agent (the "Agent"). Capitalized terms used herein
without definition have the meanings given such terms in the Credit Agreement.
3. This Certificate is being delivered pursuant to Section 4.1(n) of the
Credit Agreement.
4. Each Credit Party is in compliance with all financial obligations as of
the date hereof.
5. Each of the conditions set forth in Subsections 4.1(d), (h), (i), (j),
(k) and (l) have been satisfied on or before the date hereof.
Nothing in this Certificate shall create any personal (as opposed to corporate)
liability.
Dated: May 27, 2005.
▇▇▇▇▇▇ INTERNATIONAL INC.,
an Ohio corporation
By:___________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ III
Sr. Vice President and
Chief Financial Officer
EXHIBIT I
[FORM OF]
JOINDER AGREEMENT
JOINDER AGREEMENT dated as of _____________, among ▇▇▇▇▇▇ INTERNATIONAL
INC., an Ohio corporation (the "Borrower"), the Subsidiary listed on the
signature page hereto (the "New Subsidiary") and JPMORGAN CHASE BANK, N.A., as
Agent (as defined herein) for the Lenders (as defined herein).
Reference is made to (a) the Second Amended and Restated Credit Agreement
dated as of May 27, 2005 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among the Borrower, the several lenders
from time to time party thereto (the "Lenders"), and JPMORGAN CHASE BANK, N.A.,
as Agent (the "Agent"), (b) the Amended and Restated Guarantee Agreement dated
as of June 3, 2002 (as amended, modified, restated or supplemented from time to
time, the "Guarantee Agreement"), among the Guarantors named therein and the
Agent, (c) the Amended and Restated Indemnity, Subrogation and Contribution
Agreement dated as of June 3, 2002 (as amended, modified, restated or
supplemented from time to time, the "Indemnity Agreement") among the Borrower,
the Guarantors and the Agent and (d) the Amended and Restated Pledge and
Security Agreement dated as of June 3, 2002 (as amended, modified, restated or
supplemented from time to time, the "Pledge Agreement") among the Borrower, the
Pledgors named therein and the Agent. Terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement,
the Guarantee Agreement, the Indemnity Agreement and the Pledge Agreement.
The Credit Agreement, the Guarantee Agreement, the Indemnity Agreement and
the Pledge Agreement require that additional Domestic Subsidiaries shall become
Guarantors under the Guarantee Agreement and the Indemnity Agreement and
Pledgors under the Pledge Agreement by execution and delivery of an instrument
in the form of this Joinder Agreement. The undersigned is a Domestic Subsidiary
and is executing this Joinder Agreement in accordance with the requirements of
the Credit Agreement in order to become a Guarantor under the Guarantee
Agreement and the Indemnity Agreement and a Pledgor under the Pledge Agreement
to induce the Lenders to make or maintain Loans and as consideration for Loans
previously made.
Accordingly, the Agent and the New Subsidiary agree as follows:
SECTION 1. Guarantee Agreement and Indemnity Agreement. In accordance with
Section 14 of the Guarantee Agreement and Section 13 of the Indemnity Agreement,
each New Subsidiary by its signature hereto shall become a Guarantor under the
Guarantee Agreement and the Indemnity Agreement with the same force and effect
as if originally named therein as a Guarantor and the New Subsidiary hereby (a)
agrees to all the terms and provisions of the Guarantee Agreement and the
Indemnity Agreement applicable to it as a Guarantor thereunder, (b) represents
and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct in all material respects on and as of the date hereof and (c)
acknowledges receipt of a copy of and agrees to be obligated and bound by the
terms of the Guarantee Agreement and the Indemnity Agreement. Each reference to
a "Guarantor" in the Guarantee Agreement and the Indemnity Agreement shall be
deemed to include the applicable New Subsidiary.
SECTION 2. Pledge Agreement. In accordance with Section 7.7 of the Pledge
Agreement, the New Subsidiary by its signature hereto shall become a Pledgor
under the Pledge Agreement with the same force and effect as if originally named
therein as a Pledgor and the New Subsidiary hereby (i) agrees to all the terms
and provisions of the Pledge Agreement applicable to it as a Pledgor thereunder,
(ii) represents and warrants that the representations and warranties made by it
as a Pledgor thereunder are true and correct on and as of the date hereof and
(iii) acknowledges receipt of a copy of and agrees to be bound by the terms of
the Pledge Agreement. In furtherance of the foregoing, as security for the
payment or performance, as the case may be, of the Secured Obligations (as
defined in the Pledge Agreement) of the New Subsidiary as a Pledgor, the New
Subsidiary hereby grants to the Agent, its successors and assigns, for the
benefit of the Secured Parties, a security interest in all of such New
Subsidiary's right, title and interest in, to and under the Collateral listed on
Schedules 2 through 5 attached hereto and all other Collateral referred to in
the Pledge Agreement. Each reference to a "Pledgor" in the Pledge Agreement
shall be deemed to include the New Subsidiary and each schedule attached to this
Joinder Agreement shall be incorporated into and become part of and supplement
the corresponding Schedules 2 through 5 to the Pledge Agreement.
SECTION 3. Enforceability. The New Subsidiary hereby represents and
warrants that this Joinder Agreement has been duly authorized, executed and
delivered by the New Subsidiary and constitutes a legal, valid and binding
obligation of the New Subsidiary enforceable against it in accordance with its
terms.
SECTION 4. Effectiveness. This Joinder Agreement shall become effective
upon satisfaction of the following conditions:
(a) the receipt by the Agent, in form and substance satisfactory to the
Agent, of the following:
(i) duly executed counterparts of this Joinder Agreement;
(ii) a copy of the New Subsidiary's certificate of incorporation or
other constitutive documents, including all amendments thereto, certified as of
a recent date by the Secretary of State of the jurisdiction of its organization
and a certificate as to its good standing, as of a recent date, from such
Secretary of State;
(iii) a certificate of the Secretary, Assistant Secretary or other
authorized representative of the New Subsidiary certifying (A) that attached
thereto is a true and complete copy of its by-laws in effect on the date thereof
and at all times since
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a date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly adopted by
the Board of Directors of the New Subsidiary (or, in the case of a partnership,
the managing general partner thereof) authorizing the execution, delivery and
performance of this Joinder Agreement and the performance of the Pledge
Agreement, the Guarantee Agreement and the Indemnity Agreement to which it will
be a party and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
incorporation or other constitutive documents of the New Subsidiary have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (ii) above and (D) as
to the incumbency and specimen signature of each authorized representative
executing any document delivered in connection herewith on behalf of such party;
(iv) a certificate of another authorized representative as to the
incumbency and specimen signature of the person executing the certificate
pursuant to clause (iii) above;
(v) upon the request of the Agent, certified copies of Requests for
Information or Copies (form UCC-11), or equivalent reports from an independent
search service satisfactory to the Agent, listing (A) any judgment naming the
New Subsidiary as judgment debtor in any of the jurisdictions where a Uniform
Commercial Code financing statement would be required by law to be filed in
order to create a perfected security interest in or lien on any of the personal
or real property of the New Subsidiary, (B) any tax lien that names the New
Subsidiary as a delinquent taxpayer in any of the jurisdictions referred to in
the preceding clause (A), and (C) any Uniform Commercial Code financing
statement that names the New Subsidiary as debtor or seller filed in any of the
jurisdictions referred to in the preceding clause (A);
(vi) appropriate duly executed termination statements (Form UCC-3)
signed by all persons disclosed on current financing statements as secured
parties in the jurisdictions referred to in clause (v) above in form for filing
under the Uniform Commercial Code of such jurisdictions (except with respect to
Liens permitted under Section 7.2 of the Credit Agreement);
(vii) certificates representing all outstanding capital stock of
any subsidiary of the New Subsidiary accompanied by stock powers endorsed in
blank, and Intercompany Notes, duly executed by the New Subsidiary, accompanied
by assignments executed in blank;
(viii) with respect to a New Subsidiary, an acknowledgment copy, or
other evidence satisfactory to the Agent, of the proper filing, registration or
recordation of each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the Agent to be filed,
registered or recorded in order to create in favor of the Agent for the benefit
of the Secured Parties a valid, legal and perfected security interest in or Lien
on the Collateral that is the subject of the Pledge Agreement in each
jurisdiction in which the filing, registration or recordation thereof is so
required or requested;
3
(ix) an opinion of counsel (both domestic and foreign counsel, as
may be reasonably required by the Agent), for the New Subsidiary, dated the date
that this Joinder Agreement shall become effective, as to all matters relating
to the New Subsidiary as the Agent may reasonably request; and
(x) all documents the Agent may reasonably request relating to the
existence of New Subsidiary and its corporate or partnership authority to
execute, deliver and perform the Pledge Agreement, the Guarantee Agreement and
the Indemnity Agreement, and any other matters relevant hereto or thereto; and
(b) No Default or Event of Default shall have occurred and be
continuing at the time of the execution and delivery hereof or would occur
immediately after giving effect thereto.
SECTION 5. Effect on Credit Documents. Except as expressly supplemented
hereby, the Pledge Agreement, the Guarantee Agreement and the Indemnity
Agreement shall remain in full force and effect.
SECTION 6. GOVERNING LAW. THIS JOINDER AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 7. Severability. If any provision of any of this Joinder Agreement
is determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 8. Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or other
facsimile device) to the number, in the case of the Agent, set forth in Section
10.1 of the Credit Agreement and in the case of the New Subsidiary, set forth on
the signature pages hereof, in each case followed by telephonic confirmation of
receipt, (c) on the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service or (d)
on the fifth Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case to the respective
parties at the address, in the case of the Agent, set forth in Section 10.1 of
the Credit Agreement, and, in the case of the New Subsidiary, set forth on the
signature pages hereof, or at such other address as such party may specify by
written notice to the other parties hereto.
SECTION 9. Counterparts. This Joinder Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be
4
necessary in making proof of this Joinder Agreement to produce or account for
more than one such counterpart for each of the parties hereto. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this
Joinder Agreement shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered, but the failure to deliver a manually
executed counterpart shall not affect the validity, enforceability, or binding
effect of this Joinder Agreement.
SECTION 10. Expenses. The New Subsidiary agrees to reimburse the Agent for
its reasonable out-of-pocket expenses in connection with this Joinder Agreement,
including the reasonable fees and expenses of counsel for the Agent (but
excluding the cost of internal counsel).
SECTION 11. Submission to Jurisdiction; Venue.
(a) Any legal action or proceeding with respect to this Joinder
Agreement may be brought in the courts of the State of Ohio in ▇▇▇▇▇▇▇▇ County,
or of the United States for the Southern District, Western Division of Ohio,
and, by execution and delivery of this Joinder Agreement, the New Subsidiary
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the nonexclusive jurisdiction of such courts. The New
Subsidiary further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to it at the
address set forth for notices pursuant to Section 8, such service to become
effective five (5) days after such mailing. Nothing herein shall affect the
right of the Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against the New Subsidiary in
any other jurisdiction.
(b) The New Subsidiary hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Joinder Agreement
brought in the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) To the extent permitted by law, the New Subsidiary hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Joinder Agreement.
5
IN WITNESS WHEREOF, the New Subsidiary and the Agent have duly executed
this Joinder Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY],
By:__________________________
Name:________________________
Title:_______________________
Address:_____________________
Telecopy:____________________
JPMORGAN CHASE BANK, N.A.,
as Agent
By:__________________________
Name:________________________
Title:_______________________
6
SCHEDULE 2
CHIEF EXECUTIVE OFFICES AND PRINCIPAL PLACE OF BUSINESS
Name Mailing Address County State
---- --------------- ------ -----
LOCATIONS OF RECORDS OF GENERAL INTANGIBLES
Name Mailing Address County State
---- --------------- ------ -----
SCHEDULE 3
PLEDGED SECURITIES
Part I List of Pledged Interests:
Ownership
Pledgor Issuer Interests
------- ------ ---------
Part II List of Pledged Debt:
Pledgor Issuer Date of Issuance Outstanding Balance
------- ------ ---------------- -------------------
SCHEDULE 4
TRADE NAMES, DIVISION NAMES, ETC.
Pledgor Trade Names, Division Names, Etc.
------- ---------------------------------
SCHEDULE 5
REQUIRED FILINGS AND RECORDINGS
Pledgor UCC Filings & Locations Other Filings
------- ----------------------- -------------
EXHIBIT J
Exhibit J
To The Agent and Lenders Listed
On Schedule 1 Hereto
RE: ▇▇▇▇▇▇ International Inc.
Ladies and Gentlemen:
I am General Counsel, Vice President and Secretary of ▇▇▇▇▇▇ International
Inc., an Ohio Corporation (the "Borrower"), and have acted in my capacity as an
officer of Borrower and its Subsidiaries (together with the Borrower, the
"Credit Parties"), in connection with: (a) the negotiation, preparation,
execution and delivery of the Second Amended and Restated Credit Agreement dated
as of May 31, 2005 (the "Agreement"), among the Borrower, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank,
N.A., as Agent (in such capacity, the "Agent") and as Lender, and the several
lenders from time to time party thereto (the "Lenders"); and (b) the
negotiation, preparation, execution and delivery of the Credit Documents (as
defined in the Agreement) . This opinion is furnished to you pursuant to Section
4.1(c) of the Agreement and at the instruction of the Borrower. Capitalized
terms used herein without specific definition shall have the meanings
respectively ascribed thereto in the Agreement.
We have examined: (i) executed copies of the Agreement and the Credit
Documents and (ii) such records, certificates, instruments and other documents
as are in our judgment necessary or appropriate to enable me to render this
opinion.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
authentic original documents of all documents submitted to me as certified,
conformed or photo static copies. Notwithstanding the foregoing, I have (with
your permission) limited my factual inquiries to conferences with other
representatives of the Borrower (at which conferences the business, affairs and
properties of the Borrower, the other Credit Parties and other related matters
were discussed), a review of the resolutions of the Board of Directors and, to
the extent relevant, shareholders of the Borrower and its Subsidiaries, the
certificates of certain public officials and of officers of the Borrower and
certain factual inquiries that, in fact, were actually made by attorneys in this
department based on the matters discussed in such resolutions and certificates
or at such conferences. Any opinion herein qualified by the modifier "to the
best of our knowledge after due investigation" shall be deemed to incorporate
these limitations (including the limitations set forth in any of the above
certificates) with respect to our factual inquiries.
I have also assumed that all parties to the Agreement and the Credit
Documents other than the Borrower, its Subsidiaries and the other Domestic
Credit Parties (as defined herein) have properly executed and delivered the
Agreement and the Credit Documents and that such execution and delivery have
been properly authorized as to each of said parties and that such parties have
the power fully to perform their respective obligations under the Agreement and
the Credit Documents.
I am admitted to practice only in the State of Ohio and I do not hold
myself out as being conversant with, and therefore express no opinion with
respect to, the laws of any jurisdiction other than the federal laws of the
United States of America and the laws of the State of Ohio.
Based solely on the review described above and subject to the foregoing
assumptions, limitations and qualifications, I am of the opinion that:
6. Each of the Borrower and other Credit Parties incorporated or organized
under the laws of the United States of America or any state thereof (the
"Domestic Credit Parties") is duly organized, validly existing and in good
standing (or the local law equivalent) under the laws of the jurisdiction of its
incorporation or organization and is duly qualified as a foreign entity and in
good standing (or the local law equivalent) under the laws of each jurisdiction
where such qualification is required, except where the failure so to qualify
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7. Each of the Borrower and the other Domestic Credit Parties has all
requisite corporate or other power and authority, and the legal right, to own
and operate its properties, to lease the properties it operates as lessee and to
conduct the business in which is currently engaged. Each of the Borrower and the
other Domestic Credit Parties has the requisite corporate or other power and
authority, and the legal right, to execute, deliver and perform the Credit
Documents to which it is party and, in the case of the Borrower, to obtain
extensions of credit under the Agreement.
8. The execution, delivery, and performance (including foreclosure by the
Agent against any of the Collateral) of the Credit Documents by each of the
Domestic Credit Parties a party thereto and the Borrowings and other extensions
of credit under the Agreement by the Borrower, have been duly authorized by all
requisite corporate, partnership and, if required shareholder action, as
applicable, of the Borrower and each Domestic Credit Party. Each of the Credit
Documents to which any Domestic Credit Party is a party has been duly executed
and delivered by such Domestic Credit Party.
9. Each Credit Document (other than the choice of law provisions)
constitutes the legal, valid and binding obligation of the Borrower and each
other Domestic Credit Party thereto, enforceable against the Borrower and such
Domestic Credit Party in accordance with its terms.
10. No consent or authorization of, filing with, notice to or other similar
act by or in respect of any Governmental Authority or any other Person is
required to be
2
obtained or made by or on behalf of any Domestic Credit Party in connection with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Domestic Credit Party is a party except (a) consents,
authorizations, notices and filings disclosed in Schedule 5.4 to the Agreement,
all of which have been obtained or made, and (b) filings to perfect liens
created by Collateral Documents.
11. Neither the execution and delivery by each Domestic Credit Party of the
Credit Documents to which it is a party, nor the consummation of the
transactions contemplated therein, nor performance of and compliance with the
terms and provisions thereof by such Domestic Credit Party nor the exercise of
remedies by the Secured Parties under the Credit Documents, will (a) violate or
conflict with any provision to its articles or certificate of incorporation or
regulations or bylaws or other organizational or governing documents of such
Person, (b) violate, contravene or conflict with any Requirement of Law
(including Regulation U or Regulation X), applicable to it or its Properties,
(c) to the best of our knowledge after due investigation, violate, contravene or
conflict with contractual provisions of, cause an event of default under, or
give rise to material increased, additional, accelerated or guaranteed rights of
any Person under any Material Contract, or (d) result in or require the creation
of any Lien (other than the Lien of Collateral Documents) upon or with respect
to its Properties.
12. Except as disclosed in Schedule 5.9 of the Agreement, there are no
actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings pending for which service of process or other written
notice has been received or, to the best of our knowledge after due inquiry,
threatened against or affecting the Borrower or any other Domestic Credit Party
that could reasonably be expected to have a Material Adverse Effect.
13. To the best of our knowledge after due investigation, each of the
Borrower and the other Domestic Credit Parties is in material compliance with
all Requirements of Law applicable to it or its Properties, except for any such
failure to comply which could not reasonably be expected to have a Material
Adverse Effect.
14. To the best of our knowledge after due investigation, no proceeds of
the Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock," within the meaning of Regulation G or Regulations
U, or for the purpose of purchasing, carrying or trading in any publicly traded
securities. No indebtedness being reduced or retired out of the proceeds of the
Loans was or will be incurred for the purpose of purchasing or carrying any
margin stock with the meaning of Regulation U or any " margin security" within
the meaning or Regulation T. "Margin Stock" within the meaning of Regulation U
does not constitute more than 25% of the value of the consolidated assets of the
Credit Parties. None of the transactions contemplated by the Amended Agreement
(including, but only to the best of our knowledge after due investigation, the
direct or indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Exchange Act or
regulations issued pursuant thereto, or Regulation G, T, U or X.
3
15. No Domestic Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended. In addition, no Domestic Credit Party is
(a) an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, (b) controlled by such an
"investment company", or (c) a "holding company", a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
Each of the foregoing opinions is subject to the following qualifications:
(a) the legality, validity and enforceability of any rights and remedies
provided in the Agreement or the other Credit Documents are subject to
exceptions provided by bankruptcy, insolvency, reorganization,
receivership, moratorium, assignment for the benefit of creditors'
laws or similar laws now or hereafter in effect affecting the
validity, legality and finding effect and enforceability of creditors'
rights generally, including, without limitation, statutory or other
laws regarding fraudulent transfers and conveyances or preferential
transfers;
(b) specific performance, injunctive relief or other traditional equitable
remedies may not be available as they are subject to the discretion of
the court before which any proceeding with respect thereto may be
brought;
(c) rights to indemnification may be limited by federal or state
securities law: accordingly, I express no opinion as to the
enforceability of any indemnity provisions contained in the Agreement
or the other Credit Documents;
(d) I express no opinion as to the enforceability of any provisions in the
Agreement or the other Credit Documents providing for the recovery of
attorneys' fees or other costs of collection;
(e) I express no opinion with respect to any provision for submission to
jurisdiction or related waivers of defenses to such jurisdiction
contained in the Agreement or the other Credit Documents; and
(f) I express no opinion as to the existence of, or as to the title of the
Borrower or any Domestic Credit Party to, any item of Collateral or as
to the priority or (except as set forth in paragraphs 11 and 12 above)
the perfection of any security interest referred to above.
We do not render any opinion as to any matter except as specifically set
forth herein. We do not undertake to update or to revise this opinion in the
event of any change of law, whether by legislative action, judicial decision or
otherwise, or in any factual circumstance. This opinion is being delivered
solely to you and may not be delivered to, or relied upon by, any other party
without our prior written consent.
4
Finally, I am issuing this opinion letter as an officer of the Company and
do so solely in such capacity.
Sincerely,
▇▇▇▇▇▇ International Inc.
By: _______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
5
EXHIBIT K
REAFFIRMATION AGREEMENT
This REAFFIRMATION AGREEMENT (this "Agreement") dated as of May 27, 2005,
made by each of the individuals, corporations and limited liability companies
identified under the caption "OBLIGORS" on the signature pages hereof (each an
"Obligor," and collectively, the "Obligors"), to, and for the benefit of,
JPMORGAN CHASE BANK, N.A., successor by merger to Bank One, NA, as agent on
behalf of the Lenders ("Agent"), is as follows:
A. Agent, ▇▇▇▇▇▇ International Inc., an Ohio corporation (the "Borrower"),
and the Lenders named therein ("Lenders") are parties to a Second Amended and
Restated Credit Agreement dated as of May 27, 2005 (as amended, modified,
restated or supplemented from time to time, the "Amended Credit Agreement"). The
Amended Credit Agreement amends and restates in its entirety the Amended and
Restated Credit Agreement dated as of June 3, 2002, as amended (the "Original
Credit Agreement"). The terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
B. In connection with the Amended Credit Agreement, the Obligors have
previously executed and delivered to the Agent, for the benefit of the Lenders,
one or more of the following agreements: (i) an Amended and Restated Guarantee
Agreement dated as of June 3, 2002 (the "Guarantee Agreement"); (ii) an Amended
and Restated Pledge and Security Agreement dated as of June 3, 2002 (the "Pledge
Agreement"); (iii) an Amended and Restated Indemnity, Subrogation and
Contribution Agreement dated as of June 3, 2002 (the "Indemnity Agreement"); and
(iv) a Security Agreement dated as of May 14, 2003 (the "Security Agreement")
(collectively, the "Obligor Documents").
C. Contemporaneously with the execution and delivery of this Agreement,
▇▇▇▇▇▇, Agent and the Lenders are executing and delivering the Amended Credit
Agreement.
Statement of Agreement
NOW, THEREFORE, in order to induce Lenders to enter into the Amended Credit
Agreement and in consideration of the mutual conditions and agreements set forth
in this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Obligors hereby agree to and for
the benefit of Agent and the Lenders as follows.
1. Definitions. Terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Amended Credit Agreement.
2. Consent and Reaffirmation.
(a) Each Obligor hereby consents and agrees (i) to the execution and
delivery of the Amended Credit Agreement and the amendment of any other
Loan Documents in connection therewith (collectively, the "Amendment
Documents"), and (ii) that all Credit Obligations created or existing
under, pursuant to, as a result of, or arising out of, the Amended Credit
Agreement and the Notes shall, together with any and all additional Credit
Obligations incurred under the Amended Credit Agreement, continue in
existence within the definition of "Credit Obligations" under the Amended
Credit Agreement, which Credit Obligations each Obligor, acknowledges,
reaffirms, and confirms to Agent.
(b) Each Obligor hereby expressly acknowledges that the Amended Credit
Agreement and other Amendment Documents shall not in any manner (i)
constitute the refinancing, refunding, payment or extinguishment of the
Credit Obligations evidenced by the Credit Agreement or the Notes, (ii) be
deemed to evidence a novation of the outstanding balance of the Credit
Obligations, or (iii) affect, replace, impair, or extinguish the creation,
attachment, perfection or priority of the security interests in, and other
Liens on, the Collateral granted pursuant to ,any agreements, instruments
or other documents evidencing or creating a Lien on the Collateral.
(c) Each Obligor hereby agrees that the Credit Documents to which each
Obligor is a party shall remain in full force and effect and are hereby
ratified and confirmed and each Obligor hereby reaffirms their obligations
under each such Credit Document and agrees that each reference therein to
the Credit Agreement shall be deemed amended to be a reference to the
Amended Credit Agreement. Each Obligor hereby further acknowledges and
agrees that it is not released from any, and waives any defenses it would
otherwise have in respect, of its obligations under any Credit Document to
which it is a party by reason of the execution and delivery of the Amended
Credit Agreement and the other Amendment Documents.
3. Representations and Warranties. Each Obligor represents and warrants to
Agent as follows:
(a) Authorization. Each Obligor has the power and authority to
execute, deliver and perform this Agreement and has taken all necessary
action (including obtaining approval of its stockholders or members, if
necessary) to authorize the execution, delivery, and performance of this
Agreement.
(b) Approvals. No consent, approval, or authorization of, or
declaration or filing with, any Governmental Authority, and no consent of
any other Person, is required in connection with any Obligor's execution,
delivery and performance of this Agreement.
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(c) Enforceability. This Agreement has been duly executed and
delivered by each Obligor and constitutes the legal, valid and binding
obligations of such Obligor, enforceable against it in accordance with its
terms without defense, setoff or counterclaim.
(d) No Violation. No Obligor's execution, delivery, or performance of
this Agreement conflicts with, or constitutes a violation or breach of, or
constitutes a default under, or result in the creation or imposition of any
Lien upon the property of any Obligor by reason of the terms of: (i) any
contract, mortgage, lien, lease, agreement, indenture, or instrument to
which any Obligor is a party or which is binding upon it, (ii) any
Requirement of Law applicable to any Obligor, or (iii) if applicable, the
certificate or articles of incorporation or articles of organization, code
of regulations, by-laws or operating agreement, or any similar constituent
documents of any Obligor.
(e) Representations. The representations and warranties made by each
Obligor in the Credit Documents to which such Obligor is a party are true
and correct on and as of the date hereof with the same force and effect as
if made on and as of such date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such
specific date).
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
5. Agreement as Credit Document. This Agreement shall constitute a Credit
Document.
6. Governing Law; Submission to Jurisdiction: Venue.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Any legal action or proceeding with respect to this Agreement may be brought in
the courts of the State of Ohio in ▇▇▇▇▇▇▇▇ County, or of the United States for
the Southern District, Western Division of Ohio, and, by execution and delivery
of this Agreement, each Obligor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each Obligor further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set forth for notices pursuant to the
Obligor Documents, such service to become effective five (5) days after such
mailing. Nothing herein shall affect the right of the Agent to serve process in
any other manner permitted by law or to commence legal proceedings or to
otherwise proceed against any Obligor in any other jurisdiction.
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(b) Each Obligor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in sub (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) To the extent permitted by law, each Obligor hereby irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement and the other Credit Documents or
the transactions contemplated hereby or thereby.
7. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective representatives, successors, and assigns of the
parties; provided, however, that no interest herein may be assigned by any
Obligor without prior written consent of Agent.
8. Indemnity of Bank. Each Obligor will defend, indemnify and hold Agent
and each Lender and each of the foregoing Persons' respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable attorney costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Credit Obligations) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement,
any document contemplated by or referred to herein, any of the transactions
contemplated hereby, or any action taken or omitted by any such Person under or
in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any proceeding under the
Bankruptcy Code or appellate proceeding) related to or arising out of this
Agreement (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Obligors shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities to the extent
resulting solely from the gross negligence or willful misconduct of such
Indemnified Person, as determined by a court of competent jurisdiction in a
final non-appellate judgment or order. The agreements in this Section 8 shall
survive payment of all other Credit Obligations.
9. Waiver of Claims. Each Obligor acknowledges, represents and agrees that
it has no defenses, setoffs, claims, counterclaims or causes of action of any
kind or nature whatsoever with respect to the Credit Documents or with respect
to any acts or omissions of Agent or any Lender on or prior to the date hereof,
or any past or present officers, agents or employees of Agent or any Lender, and
each of such Persons does hereby expressly waive, release and relinquish any and
all such defenses, setoffs, claims, counterclaims and causes of action, if any.
10. Final Agreement. This Agreement is intended by the Obligors and Agent
to be the final, complete, and exclusive expression of the agreement among them
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relating to the subject matter hereof. This Agreement supersedes any and all
prior oral or written agreements relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the day and year first above written.
▇▇▇▇▇▇ INTERNATIONAL CPU LLC ▇▇▇▇▇▇ U.K. INC.
By:___________________________ By:___________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III ▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Manager Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
AAC CONSULTING GROUP, INC. ACER/EXCEL, INC.
By:____________________________ By:____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III ▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Senior Vice President Senior Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ 441 Vine Street
Rockville, Maryland 20855 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted:
JPMORGAN CHASE BANK, N.A.,
Successor by Merger to Bank One, NA
as Agent
By:___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
First Vice President
5
EXHIBIT L
AMENDED AND RESTATED PLEDGE AGREEMENT
▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio corporation ("Pledgor") and JPMORGAN
CHASE BANK, N.A., as successor by merger to Bank One, NA, as agent on behalf of
the Lenders ("Agent"), hereby agree as follows:
Background
A. Pledgor, Agent and the Lenders named therein are parties to that certain
Amended and Restated Credit Agreement dated as of June 3, 2002 (as amended, the
"Original Credit Agreement").
B. Effective as of the date hereof, the Pledgor, Agent and Lenders are
entering into a Second Amended and Restated Credit Agreement (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
which amends and restates in its entirety the Original Credit Agreement.
C. As additional security for the Pledgor's obligations and as a condition
to the Lenders entering into of the Third Amendment, the Lenders have required a
pledge by Pledgor of certain Securities Collateral (as defined below) to secure
the Credit Obligations of Pledgor.
D. This Amended and Restated Pledge Agreement amends and restates in its
entirety the Pledge Agreement by and between Pledgor and Agent dated as of May
14, 2003 by and between Pledgor and Agent.
Statement of Account
1. Pledge. Pledgor hereby pledges to Agent, on behalf of the Lenders, and
Pledgor hereby agrees as follows and grants to Agent a security interest in the
following collateral, wherever located, now existing and hereafter arising or
coming into existence (the "Securities Collateral"):
1.1 Pledgor's assets held in the following accounts and used for the
purchase, sale, and retention of, or are held in the form of, cash, mutual
funds, money market funds, stocks, bonds or any other investments: (i) McDonald
Investments, Inc. brokerage account no. ▇▇▇▇▇▇▇▇ (the "KeyCorp Account") and
(ii) Bank One Trust Company, N.A. account no. 6800203400 (the "Bank One
Account"); and
1.2 All income, dividends, proceeds and products of the foregoing
KeyCorp Account and Bank One Account (collectively, the "Account(s)") in
whatever form the same may be, for the purpose of securing the payment to Bank
of all of the following (collectively, the "Obligations"): (a) all Credit
Obligations; plus (b) all obligations and liabilities owing to Lenders from
Pledgor whether now existing or hereafter created. This Agreement is in addition
to any previous security interests, assignments or pledges made in favor of
Agent and Lenders, and such previous assignments and pledges will remain in full
force and effect.
2. Representations, Warranties and Covenants. Pledgor represents, warrants
and covenants to Agent that: (a) Pledgor is the beneficial owner of the
Securities Collateral, and has not made any prior sale, pledge, encumbrance,
assignment or other disposition of any of the Securities Collateral and the same
is free from all encumbrances and rights of setoff of any kind; (b) except as
herein provided, Pledgor will not hereafter without the prior written consent of
Agent sell, pledge, encumber, assign or otherwise dispose of any of the
Securities Collateral or permit any right of setoff, lien or security interest
to exist thereon except to Agent; (c) Pledgor will defend the Securities
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein; (d) Pledgor now keeps and will continue to
keep its books and records concerning the Securities Collateral at its principal
place of business which is Pledgor's notice address shown below; and (e) Pledgor
will furnish to Agent from time to time if and as requested current lists of the
Securities Collateral; and, if and when requested by Agent from time to time,
will furnish to it copies of all correspondence and other instruments or
writings in any way evidencing or relating to the Securities Collateral or the
proceeds thereof.
3. Payment of Expenses by Agent. At its option, Agent may discharge taxes,
liens, security interests or such other encumbrances as may attach to the
Securities Collateral. Pledgor will reimburse Agent on demand for any payment so
made or any expense incurred by Agent pursuant to the foregoing authorization,
and the Securities Collateral also will secure any advances or payments so made
or expenses so incurred by Agent.
4. Financing Statements; Documents. Pledgor authorizes Agent to prepare and
file one or more financing statements pursuant to the Uniform Commercial Code in
form satisfactory to Agent, and Pledgor will pay the cost of filing financing,
continuation and termination statements in all public offices where filing is
deemed necessary or desirable by Agent. Pledgor hereby authorizes Agent to
prepare and file from time to time such supplemental assignments or other
instruments as Agent may require for the purpose of confirming Agent's interest
in the Securities Collateral. Pledgor hereby authorizes Agent to prepare and
file on behalf of Pledgor all financing statements and documents deemed
necessary or appropriate to perfect Agent's interest in the Securities
Collateral. Pledgor hereby ratifies any filing by Agent that predates the date
of this Agreement but that was intended to perfect the security interest granted
hereby.
5. Dealing with Account; Minimum Balance. So long as this Agreement is in
effect and no Event of Default or Default has occurred and is continuing,
Pledgor will have the right to change the investments in the Account; provided
however, the Account shall at all times comply with the terms of the Credit
Agreement. Without the prior written consent of Agent, Pledgor shall have no
right to withdrawal of any amounts from the Accounts, including without
limitation, any income, dividends or proceeds; provided however, such
withdrawals and distributions shall be permitted without consent of Agent so
long as the respective value of the Accounts shall be not less than the
applicable Minimum Value (as defined below). Agent will have no obligation to
monitor the Account and will have no liability of any kind whatsoever for any
change in the market
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value of the Account. Pledgor acknowledges that Pledgor has selected all
investments in the Account without the advice or information of any sort from
Agent. Pledgor at all times will maintain the aggregate value of the assets in
the Accounts at the levels set forth on Schedule B to each Account Control
Agreement (the "Minimum Value"). In the event that the aggregate value of the
assets in the Accounts at any time falls below the Minimum Value, Pledgor shall,
without the necessity of notice from Agent, immediately deposit sufficient funds
in the Accounts to maintain the Minimum Value. Agent agrees to endeavor to
provide Pledgor with copies of any notices to the respective Custodian under the
Account Control Agreements.
6. Default.
6.1 Upon the occurrence of (herein referred to as an "Event of
Default"): (i) any Event of Default (as defined in the Credit Agreement, the
other Loan Documents, or any of the documents executed in connection with any of
the Obligations), (ii) any default (after giving effect to any applicable grace
or cure periods) under any such documents that does not have a defined set of
"Events of Default," Agent may exercise any one or more of the rights and
remedies granted pursuant to this Agreement or given to Agent under applicable
law, as it may be amended from time to time, including but not limited to the
right to take possession and sell or otherwise dispose of the Securities
Collateral, and, at its option, exercise any rights of ownership pertaining to
the Securities Collateral as Agent deems necessary to preserve the value and
receive the benefits of the Securities Collateral. Pledgor waives all claims for
damages by reason of any seizure, repossession, retention or sale of the
Securities Collateral under the terms of this Agreement, other than claims
arising from the gross negligence or willful misconduct of Agent.
6.2 The net proceeds arising from the disposition of the Securities
Collateral after deducting expenses incurred by Agent will be applied to the
Obligations in the order determined by Agent. If any excess remains after the
proceeds have been applied to the Obligations, the same will be paid to Pledgor
after deducting all costs and expenses of realizing on the Securities Collateral
and enforcing the Obligations of Pledgor. If after exhausting all of the
Securities Collateral, there should be a deficiency, Pledgor will be liable
therefor to Agent, provided, however, that nothing contained herein will
obligate Agent to proceed against the Securities Collateral prior to making a
claim against Pledgor or any other party obligated under the Obligations or
prior to proceeding against any other collateral for the Obligations.
7. Rights of Agent; Power of Attorney. Pledgor hereby irrevocably
constitutes and appoints Agent and any officer thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Pledgor or in its name, from time
to time in Agent's discretion for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, Pledgor hereby gives Agent the power and right, on behalf
3
of Pledgor, upon the occurrence and during the continuance of an Event of
Default or Default, and without notice to or assent by Pledgor, to do the
following:
7.1 to establish and maintain the Securities Collateral, to deposit and
withdraw funds therefrom;
7.2 to receive payment of, endorse, and receipt for, any and all monies,
claims and other amounts due and to become due at any time in respect of or
arising out of the Securities Collateral;
7 .3 to commence and prosecute any suits, actions or proceeding at law or
in equity in any court of competent jurisdiction to collect any of the
Securities Collateral and to enforce any other right in respect of the
Securities Collateral;
7.4 to settle, compromise or adjust any suit, action or proceeding
described above, and, in connection therewith, to give such discharges or
releases as Agent may deem appropriate; and
7.5 generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Securities Collateral as fully and
completely as though Agent were the absolute owner thereof for all purposes, and
to do, at Agent's option, at any time, or from time to time, all acts and things
which Agent deems necessary to protect or preserve the Securities Collateral and
Agent's security interest and rights therein in order to effect the intent of
this Agreement, all as fully and effectively as Pledgor might do. Pledgor hereby
ratifies all that such attorneys will lawfully do or cause to be done by virtue
hereof. This power of attorney is a power coupled with an interest, will be
irrevocable and will terminate only upon payment in full of the Obligations and
the termination of this Agreement. The powers conferred upon Agent hereunder are
solely to protect Agent's interests in the Securities Collateral and will not
impose any duty upon it to exercise any such powers. Agent will have no
obligation to preserve any rights of any third parties in the Securities
Collateral. Agent will be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither it nor any of the
officers, directors, employees or Agent or any Lender will be responsible to
Pledgor for any action taken or omitted to be taken in good faith or in reliance
on the advice of counsel except for its own gross negligence or willful
misconduct.
8. General.
8.1 Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement.
8.2 Waiver. No delay or omission on the part of Agent to exercise any
right or power arising from any Event of Default will impair any such right or
power or be considered a waiver of any such right or power or a waiver of any
such Event of Default or an acquiescence therein, nor will the action or
non-action of Agent in case of such
4
Event of Default impair any right or power arising as a result thereof or affect
any subsequent default or any other default of the same or a different nature.
8.3 Notices. All notices, demands, requests, consents or approvals
required hereunder will be in writing and shall be provided in accordance with
the terms of the Credit Agreement.
8.4 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of Pledgor and Agent and their respective successors and
assigns, provided, however, that Pledgor may not assign this Agreement in whole
or in part without the prior written consent of Agent and Agent at any time may
assign this Agreement in whole or in part. All references herein to the
"Pledgor" and "Agent" will be deemed to apply to Pledgor and Agent and their
respective heirs, administrators, successors and assigns.
8.5 Joint and Several Obligations. If this Pledge Agreement is executed
by more than one person or entity as the "Pledgor," the obligations of such
persons or entities hereunder will be joint and several. Unless otherwise
specified herein, any reference to "Pledgor" will mean each such person or
entity executing this Pledge Agreement individually and all of such persons or
entities collectively.
8.6 Modifications. This Pledge Agreement and the Exhibits attached
hereto constitute the entire agreement of the parties and supersede all prior
negotiations, agreement and understanding regarding the subject matter hereof.
No modification or waiver of any provision of this Agreement nor consent to any
departure by Pledgor therefrom, will be established by conduct, custom, or
course of dealing; and no modification will in any event be effective unless the
same is in writing and specifically refers to this Agreement, and then such
waiver or consent will be effective only in the specific instance and for the
purpose for which given. No notice to or demand on Pledgor in any case will
entitle Pledgor to any other or further notice or demand in the same, similar or
other circumstance.
8.7 Illegality. If fulfillment of any provision hereof or any
transaction related hereto or of any provision of this Agreement, at the time
performance of such provision is due, involves transcending the limit of
validity prescribed by law, then ipso facto, the obligation to be fulfilled will
be reduced to the limit of such validity; and if any clause or provisions herein
contained operates or would prospectively operate to invalidate this Agreement
in whole or in part, then such clause or provision only will be void, as though
not herein contained, and the remainder of this Agreement will remain operative
and in full force and effect.
8.8. Gender, etc. Whenever used herein, the singular number will include
the plural, the plural the singular and the use of the masculine, feminine or
neuter gender will include all genders.
8.9 Headings. The headings in this Agreement are for convenience only
and will not limit or otherwise affect any of the terms hereof.
5
8.10 No Liability of Agent. Pledgor hereby agrees that Agent will not be
chargeable for any negligence, mistake, act or omission of any employee,
accountant, examiner, Agent or attorney employed by Agent (except for the
willful misconduct of any person, corporation, partnership or other entity
employed by Agent) in making examinations, investigations or collections, or
otherwise in perfecting, maintaining, protecting or realizing upon any lien or
security interest or any other interest in the Securities Collateral or other
security for the Obligations.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed will be deemed to be an original and all of which taken
together will constitute one and the same agreement. Any party so executing this
Agreement by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity of
the counterpart executed by facsimile transmission.
8.12 Governing Law. This Agreement has been delivered and accepted at
and will be deemed to have been made at Cincinnati, Ohio and will be interpreted
and the rights and liabilities of the parties hereto determined in accordance
with the laws of the State of Ohio, without regard to conflicts of law
principles.
8.13 Jurisdiction Pledgor hereby irrevocably agrees and submits to the
exclusive jurisdiction of any state or federal court located within ▇▇▇▇▇▇▇▇
County, Ohio, or, at the option of Agent in its sole discretion, of any state or
federal court(s) located within any other county, state or jurisdiction in which
Agent at any time or from time to time chooses in its sole discretion to bring
an action or otherwise exercise a right or remedy, and Pledgor waives any
objection based on forum non conveniens and any objection to venue of any such
action or proceeding.
Dated as of May 27, 2005.
PLEDGOR:
▇▇▇▇▇▇ INTERNATIONAL INC.
By:__________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, III, Senior Vice President
AGENT:
JPMORGAN CHASE BANK, N.A.
Successor by merger to Bank One, NA
By:_________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, First Vice President
6