Exhibit 10.23
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 3, 2002
among
▇▇▇▇▇▇ INTERNATIONAL INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
BANK ONE, NA,
as Agent
TABLE OF CONTENTS
-----------------
PAGE
SECTION 1. DEFINTIONS............................................................................................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....................................................................................28
2.1 Revolving Loans........................................................................................28
2.2 Letter of Credit Subfacility...........................................................................30
2.3 Acquisition Loans......................................................................................36
2.4 Term Loan..............................................................................................37
SECTION 3. OTHER PROVISIONS RELATING TO CREDIT FACILITIES.......................................................38
3.1 Default Rate...........................................................................................38
3.2 Extension and Conversion...............................................................................38
3.3 Prepayments............................................................................................39
3.4 Termination and Reduction of Commitments...............................................................41
3.5 Fees...................................................................................................42
3.6 Increased Cost and Reduced Return......................................................................43
3.7 Limitation on Types of Loans...........................................................................44
3.8 Illegality.............................................................................................45
3.9 Treatment of Affected Loans............................................................................45
3.10 Taxes.................................................................................................46
3.11 Compensation..........................................................................................47
3.12 Pro Rata Treatment....................................................................................48
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3.13 Sharing of Payments...................................................................................49
3.14 Payments, Computations, Etc...........................................................................49
3.15 Evidence of Debt......................................................................................51
3.16 Interest Rate Protection..............................................................................52
SECTION 4. CONDITIONS...........................................................................................52
4.1 Closing Conditions.....................................................................................52
4.2 Conditions to all Extensions of Credit.................................................................55
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................................................55
5.1 Financial Condition....................................................................................55
5.2 No Material Change.....................................................................................56
5.3 Organization and Good Standing.........................................................................57
5.4 Power; Authorization; Enforceable Obligations..........................................................57
5.5 No Conflicts...........................................................................................57
5.6 No Default.............................................................................................58
5.7 Ownership of Assets....................................................................................58
5.8 Indebtedness...........................................................................................58
5.9 Litigation.............................................................................................58
5.10 Taxes.................................................................................................58
5.11 Compliance with Law...................................................................................58
5.12 ERISA.................................................................................................59
5.13 Subsidiaries..........................................................................................60
5.14 Governmental Regulations, Etc.........................................................................60
5.15 Purpose of Loans......................................................................................61
5.16 Environmental Matters.................................................................................61
5.17 Intellectual Property.................................................................................62
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5.18 Solvency..............................................................................................62
5.19 Investments...........................................................................................62
5.20 [Intentionally omitted]...............................................................................62
5.21 Disclosure............................................................................................63
5.22 No Burdensome Restrictions; Material Contracts........................................................63
5.23 Labor Matters.........................................................................................63
5.24 Nature of Business....................................................................................64
5.25 Security Documents....................................................................................64
5.26 Transactions with Affiliates..........................................................................64
5.27 Insurance.............................................................................................65
SECTION 6. AFFIRMATIVE COVENANTS................................................................................65
6.1 Information Covenants..................................................................................65
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................................................................68
6.6 Insurance; Certain Proceeds............................................................................68
6.7 Maintenance of Property................................................................................70
6.8 Performance of Obligations.............................................................................70
6.9 Use of Proceeds........................................................................................70
6.10 Audits/Inspections....................................................................................70
6.11 Additional Credit Parties.............................................................................71
SECTION 7. NEGATIVE COVENANTS...................................................................................72
7.1 Indebtedness...........................................................................................72
7.2 Liens..................................................................................................73
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7.3 Nature of Business.....................................................................................73
7.4 Consolidation, Merger, Dissolution, Etc................................................................73
7.5 Asset Dispositions.....................................................................................74
7.6 Investments; Acquisitions..............................................................................75
7.7 Restricted Payments....................................................................................75
7.8 Prepayments of Indebtedness, Etc.......................................................................75
7.9 Transactions with Affiliates...........................................................................76
7.10 Fiscal Year; Organizational Documents.................................................................76
7.11 Limitation on Restricted Actions......................................................................76
7.12 Ownership of Subsidiaries: Limitations on Borrower....................................................77
7.13 Sale Leasebacks.......................................................................................77
7.14 [intentionally omitted]...............................................................................77
7.15 No Further Negative Pledges...........................................................................77
7.16 Impairment of Security Interests......................................................................78
7.17 Sales of Receivables..................................................................................78
7.18 Financial Covenants...................................................................................78
SECTION 8. EVENTS OF DEFAULT...............................................................................78
8.1 Events of Default......................................................................................78
8.2 Acceleration; Remedies.................................................................................81
SECTION 9. AGENCY PROVISIONS....................................................................................82
9.1 Appointment, Powers and Immunities.....................................................................82
9.2 Reliance by Agent......................................................................................83
9.3 Defaults...............................................................................................84
9.4 Rights as Lender.......................................................................................84
9.5 Indemnification........................................................................................84
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9.6 Non-Reliance on Agent and Other Lenders................................................................85
9.7 Resignation of Agent...................................................................................85
SECTION 10. MISCELLANEOUS.......................................................................................86
10.1 Notices...............................................................................................86
10.2 Right of Set-Off......................................................................................87
10.3 Benefit of Agreement..................................................................................87
10.4 No Waiver; Remedies Cumulative........................................................................89
10.5 Expenses; Indemnification.............................................................................90
10.6 Amendments. Waivers and Consents......................................................................91
10.7 Counterparts..........................................................................................92
10.8 Headings..............................................................................................93
10.9 Survival..............................................................................................93
10.10 Governing Law, Submission to Jurisdiction; Venue.....................................................93
10.11 Severability.........................................................................................94
10.12 Entirety.............................................................................................94
10.13 Binding Effect; Termination..........................................................................94
10.14 Confidentiality......................................................................................94
10.15 Source of Funds......................................................................................95
10.16 Conflict.............................................................................................95
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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 Amended and Restated Pledge Agreement
Exhibit B Amended and Restated Form of Guarantee Agreement
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 Amended and Restated Revolving Note
Exhibit G Form of Acquisition Note
Exhibit H Form of Term Note
Exhibit I Form of Notice of Extension/Conversion
Exhibit J Amended and Restated Intercreditor and Collateral Agency Agreement
Exhibit K Form of Officer's Compliance Certificate
Exhibit L Form of Joinder Agreement
Exhibit M Form of Opinion of General Counsel
Exhibit N Indemnity, Subrogation and Contribution Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 3, 2002 (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 BANK ONE, NA, as Agent for the
Lenders (in such capacity, the "AGENT"). This Agreement amends and restates in
its entirety the Credit Agreement dated as of October 13, 2000 among Borrower,
the several Lenders identified therein and Agent (the "Original Credit
Agreement") and is not a novation or discharge of the obligations of the
Borrower thereunder.
The Borrower has requested that the Lenders provide a credit facility
to the Borrower in the aggregate principal amount of up to $38,000,000 for the
purposes set forth in this Agreement below. The Lenders have agreed to make the
requested credit facility available to the Borrower on the terms and subject to
the conditions set forth in this Agreement below. Accordingly, the Borrower, 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:
"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" shall mean the promissory note of the Borrower
provided pursuant to Section 2.3, in the form of Exhibit G, 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.
"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
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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 Bank One, NA, Bank One Towers,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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.
"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(a), the appropriate
applicable percentage set forth in the table below corresponding to the Leverage
Ratio as of the most recent Calculation Date:
--------------------------------------------------------------------------------------------------------------------
Applicable
Percentage for Applicable
Eurodollar Revolving Percentage for Applicable Applicable
Pricing Total Loans and Standby Eurodollar Term Loans Percentage Percentage
Level Leverage Ratio Letter of Credit Fees and Acquisition Loans For Base Rate Loans For Facility Fees
--------------------------------------------------------------------------------------------------------------------
I # 1.0 to 1.0 1.00% 1.50% 0.0% 0.30%
--------------------------------------------------------------------------------------------------------------------
II # 1.5 to 1.0 1.15% 1.75% 0.0% 0.35%
but greater
than 1.0 to 1.0
--------------------------------------------------------------------------------------------------------------------
III # 2.0 to 1.0 1.35% 2.00% 0.0% 0.40%
but greater
than 1.5 to 1.0
--------------------------------------------------------------------------------------------------------------------
IV # 2.5 to 1.0 1.60% 2.25% 0.0% 0.45%
but greater
than 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
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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.
"BANK ONE" shall mean Bank One, NA and its successors.
"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
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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.
"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.
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"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
and variable or fixed rate notes 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-1 (or the equivalent thereof) or better by S&P or
P-1 (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).
"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.
5
"CHIEF FINANCIAL OFFICER" of any Person shall mean the chief financial
officer, principal accounting officer or similar officer of such Person.
"CLOSING FEE" shall have the meaning assigned to such term in SECTION
3.5(a).
"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 all the collateral which is identified in, and
at any time is purported to be covered by, the Collateral Documents.
"COLLATERAL DOCUMENTS" shall mean the Pledge Agreement, the Guarantee
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.
"COMMITMENT" shall mean (a) with respect to each Lender, the Revolving
Commitment, Term Commitment and Acquisition Loan Commitment of such Lender and
(b) with respect to the Issuing Lender, the LOC Commitment.
"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.
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"CONSOLIDATED CASH 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, to the extent the same are paid in
cash or satisfied through credit or refund applied to such taxes by the Borrower
or any of its Consolidated Subsidiaries during such period.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum of (a)
Consolidated Net Income (excluding the one-time restructuring charge incurred in
the fiscal quarter ended June 30, 2000) 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.
"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
7
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 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 NET WORTH" shall mean, as of any date, shareholders'
equity or net worth of the Borrower and its Consolidated Subsidiaries, as
determined on a consolidated basis in accordance with GAAP, excluding amounts
attributable to Disqualified Stock, cumulative other comprehensive income
adjustments (including translation adjustment) determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED RENT EXPENSE" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP, for
such period with respect to Operating Leases.
"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.
"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 Fee Letter, 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,
8
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.
"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 the date on which this Agreement is
executed and delivered by the parties hereto and the first Loans are made in
accordance with Section 4.
9
"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.
"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
10
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.
"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,
11
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.
"FEE LETTER" shall have the meaning assigned to that term in Section
3.5.
"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 fiscal
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.
"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, in the form of EXHIBIT B as it may be amended, modified, restated or
supplemented from time to time.
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"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.
"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.
13
"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, in the form of
EXHIBIT L, 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).
"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 date of this Agreement by
and between Agent and Bank One in the form attached hereto as EXHIBIT J, 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
14
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.
"ISSUING LENDER" shall mean Bank One, in its capacity as the issuer of
Letters of Credit, and its successors in such capacity.
"ISSUING LENDER FEES" shall have the meaning assigned to such term in
Section 3.5(b)(ii).
"JOINDER AGREEMENT" shall mean a Joinder Agreement substantially in the
form of EXHIBIT J hereto, executed and delivered by an Additional Guarantor in
accordance with the provisions of Section 6.11.
"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.
"LETTER OF CREDIT" shall mean any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the terms of
Section 2.2.
"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.
15
"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.
"LOC COMMITMENT" shall mean the commitment of the Issuing Lender to
issue Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to the
LOC Committed Amount.
"LOC COMMITTED AMOUNT" shall have the meaning assigned to that term in
Section 2.2.
"LOC DOCUMENTS" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or at risk or (b) any collateral security for such
obligations.
"LOC OBLIGATIONS" shall mean the Borrower's reimbursement obligations
hereunder (actual or contingent) arising from drawings under Letters of Credit.
The amount of the LOC Obligations outstanding at any time equals the sum of (a)
the maximum aggregate amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such Letters of
Credit, PLUS (b) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed by the Borrower.
The LOC Obligations of any Lender at any time shall mean its Revolving
Commitment Percentage of the aggregate LOC Obligations at such time.
"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
16
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.
"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.
17
"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 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 ACQUISITION LOAN BORROWING" shall mean the written notice of
borrowing in substantially the form of EXHIBIT O, as required by Section 2.3(b).
"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.
18
"OTHER TAXES" shall have the meaning assigned to such term in Section
3.10(b).
"OVERDRAFT AGREEMENT" shall mean, collectively, the Advised Revocable
Current Line Sterling Overdraft Facility Repayable On Demand dated October 13,
2000 by and between Bank One, NA, London (or its successors or assigns), as
Lender, and ▇▇▇▇▇▇ International Holdings Limited in the amount of up to
$2,000,000 equivalent in Sterling and the Advised Revocable Current Line Euro
Overdraft Facility Repayable On Demand dated October 13, 2000 by and between
Bank One, NA, London (or its successors or assigns), as Lender, and ▇▇▇▇▇▇
International Holdings Limited in an aggregate amount of up to $3,000,000
equivalent in Euro, as the same may be amended, supplemented or restated from
time to time.
"PARTICIPATION INTEREST" shall mean a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in Section 2.2
or in any Loans or other obligations as provided in Section 3.13.
"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
19
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; 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
20
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 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(c), 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 Amended and Restated Pledge and
Security Agreement dated the Effective Date among the Borrower, the Subsidiaries
and the Agent, for the benefit of the Secured Parties, in the form of EXHIBIT A;
as it may be amended, modified, restated or supplemented from time to time.
21
"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 Bank One as its prime rate, which rate may not be the lowest
rate of interest charged by Bank One 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.
"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(f)(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(f)(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(f)(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;
22
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 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
(f)(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.
"RECEIVABLES" shall mean all accounts receivable, receivables, and
obligations for payment created or arising from the sale of inventory or the
rendering of services in the ordinary course of business.
"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.
23
"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).
"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) .
"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 two-thirds (66 2/3%) 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.
24
"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 Director of Mergers and Acquisitions, 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.
"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).
25
"REVOLVING MATURITY DATE" shall mean May 30, 2005, 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 EXHIBIT F, 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.
"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.
"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
26
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 EXHIBIT H, 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 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.
"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
27
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 (or, prior to the delivery of the first financial statements
pursuant to Section 6.1, consistent with the financial statements as at March
31, 2002); 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 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 PLUS the aggregate amount of
outstanding LOC Obligations shall not at any time exceed an amount equal to
TWENTY THREE MILLION AND NO/100 DOLLARS
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($23,000,000.00) (as such aggregate maximum amount may be reduced from time to
time (i) by the original principal amount of all Acquisition Loans pursuant to
Section 2.3 and Section 3.4(b)(i) or (ii) as otherwise provided in Section 3.4,
the "REVOLVING COMMITTED AMOUNT"); PROVIDED, FURTHER, with regard to each Lender
individually, that such Lender's outstanding Revolving Loans PLUS Participation
Interests in outstanding LOC Obligations 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 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
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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).
(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 EXHIBIT F and in a principal amount equal to such
Lender's Revolving Commitment Percentage of the Revolving Committed Amount.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) ISSUANCE. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require and in reliance upon the representations and
warranties set forth herein, the Issuing Lender agrees to issue, and each Lender
severally agrees to participate on the terms set forth in this Section 2.2 in
the issuance by the Issuing Lender of, standby Letters of Credit in Dollars from
time to time from the Effective Date until the Revolving Maturity Date as the
Borrower may request, in a form acceptable to the Issuing Lender; PROVIDED, THAT
(i) the LOC Obligations outstanding shall not at any time exceed THREE MILLION
AND NO/100 DOLLARS ($3,000,000.00) (the "LOC
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COMMITTED AMOUNT") and (ii) the sum of the aggregate principal amount of
outstanding Revolving Loans, PLUS the aggregate amount of outstanding LOC
Obligations shall not at any time exceed the Revolving Committed Amount. No
Letter of Credit shall (x) have an original expiry date more than one (1) year
from the date of issuance or (y) as originally issued or as extended, have an
expiry date extending beyond the date which is five (5) Business Days prior to
the Revolving Maturity Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry dates of each Letter of Credit shall each
be a Business Day.
(b) NOTICE AND REPORTS. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance. The Issuing Lender
will, at least quarterly and more frequently upon request, disseminate to each
of the affected Lenders a detailed report specifying the Letters of Credit which
are then issued and outstanding and any activity with respect thereto which may
have occurred since the date of the most recent prior report, and including
therein, among other things, the beneficiary, the face amount and the expiry
date, as well as any payments or expirations which may have occurred.
(c) PARTICIPATION. Each Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse from the Issuing
Lender a Participation Interest in such Letter of Credit and the obligations
arising thereunder and any collateral relating thereto, in each case in an
amount equal to its Revolving Commitment Percentage of the obligations under
such Letter of Credit and shall absolutely, unconditionally and irrevocably
assume and be obligated to pay to the Issuing Lender and discharge when due its
Revolving Commitment Percentage of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Lender's Participation
Interest in any Letter of Credit, to the extent that the Issuing Lender has not
been reimbursed as required hereunder or under any such Letter of Credit, each
such Lender shall pay to the Issuing Lender its Revolving Commitment Percentage
of such unreimbursed drawing pursuant to subsection (d) below. The obligation of
each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event
of Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
(d) REIMBURSEMENT. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. The Borrower
promises to reimburse the Issuing Lender on the day of drawing under any Letter
of Credit (either with the proceeds of a Revolving Loan obtained as provided in
subsection (e) below or with funds from other sources) in same day funds. Unless
the Borrower shall immediately notify the Issuing Lender that the Borrower
intends to reimburse the Issuing Lender for such drawing from other sources of
funds, the Borrower shall be deemed to have requested that the Lenders make a
Revolving Loan as provided in subsection (e) below in the amount of the drawing
on the related Letter of Credit and the proceeds of such Loan will be used to
reimburse the Issuing Lender for such drawing. If the
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Borrower shall fail to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to the Adjusted Base Rate plus 2%. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Lender, the Agent,
the Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including any defense based on any failure of the Borrower or any other
Credit Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will promptly
notify the other affected Lenders of the amount of any unreimbursed drawing and
each Lender shall promptly pay to the Agent for the account of the Issuing
Lender, in Dollars and in immediately available funds, the amount of such
Lender's Revolving Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M. (Cincinnati,
Ohio time) and otherwise such payment shall be made at or before 12:00 Noon
(Cincinnati, Ohio time) on the Business Day next succeeding the day such notice
is received. If such Lender does not pay such amount to the Issuing Lender in
full upon such request, such Lender shall, on demand, pay to the Agent for the
account of the Issuing Lender interest on the unpaid amount during the period
from the date of such drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2) Business
Days of the date that such Lender is required to make payment of such amount
pursuant to the preceding sentence, the Federal Funds Rate and, if paid,
thereafter, the Base Rate. Each Lender's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any circumstance
whatsoever, shall be satisfied without regard to the termination of this
Agreement or the Commitment hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a Lender to
the Issuing Lender, such Lender shall, automatically and without any further
action on the part of the Issuing Lender or such Lender, acquire a Participation
Interest in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Lender) in the unreimbursed
drawn portion of the related Letter of Credit, in the interest on the LOC
Obligations in respect thereof and the related LOC Documents, and shall have a
claim against the Borrower with respect thereto.
(e) REPAYMENT WITH REVOLVING LOANS. On any day on which the
Borrower shall have requested, or been deemed to have requested, a Revolving
Loan advance to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the affected Lenders that a Revolving Loan has been requested or
deemed requested by the Borrower to be made in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan advance comprised of Base Rate
Loans (or Eurodollar Loans to the extent the Borrower has complied with the
procedures of Section 2.1(b)(i) with respect thereto) shall be immediately made
to the Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to Section 8.2) pro rata based on the respective Revolving
Commitment Percentages of the Lenders
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(determined before giving effect to any termination of the Commitments pursuant
to Section 8.2) and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the related LOC Obligations. Each such Lender hereby
irrevocably agrees to make its Revolving Commitment Percentage of each such
Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) failure of any such request
or deemed request for a Revolving Loan to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or contemporaneously with
such borrowing. In the event that any Revolving Loan cannot for any reason be
made on the date otherwise required above (including as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each such Lender hereby agrees that it
shall forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Issuing Lender such Participation
Interests in the outstanding LOC Obligations as shall be necessary to cause each
such Lender to share in such LOC Obligations ratably based upon the respective
Revolving Commitment Percentages of the Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 8.2), PROVIDED that at
the time any purchase of Participation Interests pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay to the Issuing
Lender, to the extent not paid to the Issuing Lender by the Borrower in
accordance with the terms of subsection (d) above, interest on the principal
amount of Participation Interests purchased for each day from and including the
day upon which such borrowing would otherwise have occurred but excluding the
date of payment for such Participation Interests, at the rate equal to, if paid
within two (2) Business Days of the date on which the Revolving Loan advance was
required, the Federal Funds Rate, and, if paid thereafter, the Base Rate.
(f) DESIGNATION OF SUBSIDIARIES AS ACCOUNT PARTIES. Notwithstanding
anything to the contrary set forth in this Agreement, including Section 2.2(a),
a Letter of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the Borrower,
PROVIDED that notwithstanding such statement, the Borrower shall be the actual
account party for all purposes of this Agreement for such Letter of Credit and
such statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) RENEWAL, EXTENSION. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
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(h) UNIFORM CUSTOMS AND PRACTICES. The Letters of Credit will be
subject to The Uniform Customs and Practices for Documentary Credits, as
published as of the date of issue by the International Chamber of Commerce (the
"UCP").
(i) INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
(i) In addition to its other obligations under this Section
2.2, the Borrower hereby agrees to pay, and protect, indemnify and save each
Lender harmless from and against, any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees) that such Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the failure of such
Lender or the Issuing Lender to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority (all such acts
or omissions, herein called "GOVERNMENT ACTS").
(ii) As between the Borrower and the Lenders (including the
Issuing Lender), the Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Lender (including
the Issuing Lender) shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be written; (D) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of such Lender, including
any Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Lender or
the Issuing Lender (including the Issuing Lender) under or in connection with
any Letter of Credit or the related certificates, if taken or omitted in good
faith, shall not put such Lender under any resulting liability to the Borrower
or any other Credit Party. It is the intention of the parties that this
Agreement shall be construed and applied to protect and indemnify each Lender
(including the Issuing Lender) against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are hereby assumed by the
Borrower (on behalf of itself and each of the other Credit Parties), including
any and all Government Acts. No Lender (including the Issuing Lender) shall, in
any way, be liable for any failure by such Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or any
other cause beyond the control of such Lender.
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(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d) above. The
obligations of the Borrower under this subsection (i) shall survive the
termination of this Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the rights
of the Lenders (including the Issuing Lender) to enforce any right, power or
benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify any Lender
(including the Issuing Lender) in respect of any liability incurred by such
Lender (A) arising out of the gross negligence or willful misconduct of such
Lender, or (B) caused by such Lender's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation, court
order or decree or such failure to pay is a result of any Government Act.
(j) RESPONSIBILITY OF ISSUING LENDER. It is expressly understood
and agreed that the obligations of the Issuing Lender hereunder to the Lenders
are only those expressly set forth in this Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section 4
have been satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, THAT, nothing set forth in
this Section 2.2 shall be deemed to prejudice the right of any Lender to recover
from the Issuing Lender any amounts made available by such Lender to the Issuing
Lender pursuant to this Section 2.2 in the event that it is determined by a
court of competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(k) CONFLICT WITH LOC DOCUMENTS. In the event of any conflict
between this Agreement and any LOC Document (including any letter of credit
application), this Agreement shall control.
(l) CASH COLLATERAL. In the event that the Borrower is required
pursuant to the terms of this Agreement or any other Credit Document to cash
collateralize any LOC Obligations, the Borrower shall deposit in an account with
the Agent an amount in cash equal to 100% of such LOC Obligations. Such deposit
shall be held by the Agent as collateral for the payment and performance of the
LOC Obligations. The Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. The Agent will, at the
request of the Borrower, invest amounts on deposit in such account in Cash
Equivalents that mature prior to the last day of the applicable Interest Periods
of any 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
35
the Agent. The Borrower shall indemnify the Agent for any losses other than
losses due solely to the Agent's gross negligence or willful misconduct,
relating to such investments. Other than any interest or profits earned on such
investments, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Agent to reimburse the Issuing Lender immediately for
drawings under Letters of Credit and, if the maturity of the Loans has been
accelerated, to satisfy the LOC Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three (3) Business Days after all Events of Default have
been cured or waived. If the Borrower is required to provide an amount of cash
collateral hereunder pursuant to Section 3.3(b)(i), such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower upon demand;
PROVIDED, THAT, after giving effect to such return, (i) the sum of the aggregate
amount of outstanding LOC Obligations, plus the aggregate principal amount of
outstanding Revolving Loans, shall not exceed the aggregate Revolving Committed
Amount and (ii) no Default or Event of Default shall have occurred and be
continuing. The Borrower hereby pledges and assigns to the Agent, for its
benefit and the benefit of the Lenders, the cash collateral accounts established
hereunder (and all monies and investments held therein) to secure the Credit
Obligations.
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 G ("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 the number of
fiscal quarters occurring between the Acquisition Loan Effective Date and ending
on, and including, the Term Maturity Date. Each Acquisition Note shall bear
interest at the Adjusted Base Rate or
36
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) Subject to the terms and conditions hereof and in reliance upon
the representations and warranties set forth herein, each Lender severally
agrees to make a Term Loan to Borrower in the sum 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 Term Loan shall be advanced in full by the
Lenders on the Effective Date. The proceeds of the Term Loan will be used to
refinance the existing Revolving Loans to the Borrower.
(b) The Term Loan shall be evidenced by one or more secured
promissory notes of the Borrower executed by duly authorized officers thereof
and shall be in the form of EXHIBIT H attached hereto (The "Term Notes"). The
Term Notes shall be dated the Effective Date and shall be due and payable in
full on or before the Term Maturity Date.
(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 I, 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, 2002.
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(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, 2002, 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 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 I 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
38
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.
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 PLUS the aggregate
amount of the outstanding LOC Obligations shall exceed the Revolving Committed
Amount, the
39
Borrower immediately shall prepay, within one (1) day of such occurrence, the
Loans and/or cash collateralize the LOC Obligations pursuant to Section 2.2(l),
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 and/or cash collateralize the LOC Obligations pursuant to
Section 2.2(l), 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 and/or cash
collateralize the LOC Obligations pursuant to Section 2.2(l), in an aggregate
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,
40
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 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.
41
(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 date of such termination or reduction on the amount of the
Revolving Committed Amount so terminated or reduced.
3.5 FEES.
(a) CLOSING 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 closing fee (the "Closing Fee") equal to 0.15% of the sum of
the Revolving Committed Amount and the Term Loan. The Closing Fee shall be
payable in full on the Effective 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) LETTER OF CREDIT FEES
(i) STANDBY LETTER OF CREDIT ISSUANCE FEE. In consideration of
the issuance of Letters of Credit hereunder, the Borrower promises to pay to the
Agent for the account of each Lender a fee (the "STANDBY LETTER OF CREDIT Fee")
on such Lender's Revolving Commitment Percentage of the average daily maximum
amount available to be drawn under each such standby Letter of Credit computed
at a per annum rate for each day from the date of issuance to the date of
expiration equal to the
42
Applicable Percentage. The Standby Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or portion thereof), beginning
with the first of such dates to occur after the Effective Date.
(ii) ISSUING LENDER FEES. In addition to the Standby Letter of
Credit Fee payable pursuant to clause (i) above, the Borrower promises to pay to
the Issuing Lender for its own account without sharing by the other Lenders (i)
a letter of credit fronting and negotiation fee equal to .125% (or such other
amount agreed to by the Borrower and the Issuing Lender from time to time) of
the face amount of each standby Letter of Credit, payable on the date of
issuance of each side Letter of Credit and (ii) such other the customary charges
from time to time of the Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the "ISSUING LENDER FEES").
(d) AGENT FEES. The Borrower agrees to pay to the Agent, for its
own account, to the extent not previously paid, the fees set forth in the fee
letter dated March 7, 2002, as amended or supplemented to the date hereof, among
the Agent and the Borrower (the "FEE LETTER") in the amounts and on the dates
provided in the Fee Letter. 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 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
43
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 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 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:
44
(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
(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
45
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").
(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
46
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.
(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:
47
(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 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
48
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 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
49
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 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;
50
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 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.
51
3.16 INTEREST RATE PROTECTION. At the option of the Lenders 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.
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, (iii) the Collateral
Documents and (iv) the Intercreditor Agreement, 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 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
52
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 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.L.L.,
general counsel for the Credit Parties, substantially in the form of EXHIBIT M.
(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 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
53
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).
(m) SOLVENCY OPINION. The Agent shall have received a certificate
of the Borrower in form and substance satisfactory to the Agent, from the Chief
Financial Officer of the Borrower, as to the financial condition and solvency of
each of the Borrower and its Subsidiaries.
(n) 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(d), (h), (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.
(o) 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.
54
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 have delivered in the case of any
Acquisition Loan, an appropriate Notice of Acquisition Loan Borrowing and
otherwise 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;
(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 or Notice of Acquisition Loan
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.
55
(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, 1999, December 31, 2000 and December 31, 2001 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 the Closing Date 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 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 the Closing Date, (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.
56
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, 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,
57
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 or which are pending or threatened as of the Effective
Date.
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
58
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.
(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.
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(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.
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.
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(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.
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) refinance existing
indebtedness of Borrower to one or more of 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.
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(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 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].
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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 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
63
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 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.
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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:
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
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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 I (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 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 (90) days following the
end of each fiscal year of the Borrower, beginning with the fiscal year ending
December 31, 2001, (i) an annual budget of the Borrower and its Consolidated
Subsidiaries for the current year and (ii) updated projected financial
statements (including balance sheets, income statements and statements of cash
flows) for the next three (3) fiscal years.
(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) ACCOUNTANT'S CERTIFICATE. Within the period for delivery of the
annual financial statements provided for in Section 6.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Agreement and stating further whether, in the course of their audit, they have
become aware of any Default or Event of Default and, if any such Default or
Event of Default exists, specifying the nature and extent thereof.
(g) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to any
Credit
66
Party in connection with any annual, interim or special audit of the books of
such Credit Party.
(h) 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.
(i) 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 local law, rule or regulation, including Environmental Laws, the violation of
which could have a Material Adverse Effect.
(j) 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
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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).
(k) 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.
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
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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 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
69
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 PROVIDE 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 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
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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 L, (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
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.
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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 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 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) other 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
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the financial covenants set forth in Section 7.18 and (C) the aggregate
principal amount of such Indebtedness PLUS the aggregate principal amount of
Indebtedness permitted pursuant to clauses 7.1(b) and 7.1(c) above and 7.1(h)
below shall not exceed $20,000,000 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.
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;
73
(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 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;
74
(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 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, (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, and (d) repurchases of
common stock of the Borrower in addition to the repurchases permitted pursuant
to clause (c) of this section 7.7; PROVIDED, THAT, the aggregate amount paid in
all such repurchases permitted pursuant to this clause (d) shall not exceed
$500,000 during the term of this Agreement; PROVIDED, THAT after such time and
for so long as the Fixed Charge Coverage Ratio as of the most recent Computation
Date is greater than 1.55 to 1.00, the aggregate amount paid in all such
repurchases during the term of this Agreement shall not exceed $10,000,000;
PROVIDED, THAT, in each case as set forth in clauses (a) through (d) 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
75
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 (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
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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.
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 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.
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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) CONSOLIDATED NET WORTH. The Borrower will not permit the
Consolidated Net Worth as of the last day of any fiscal quarter of the Borrower
after giving pro forma effect to the transaction contemplated hereby, to be less
than the "Minimum Compliance Level". The Minimum Compliance Level shall be, on
the Effective Date, an amount equal to $152,422,065 and shall be increased as of
the last day of each fiscal quarter of the Borrower ending after the Effective
Date, commencing with the fiscal quarter ending June 30, 2002 by an amount equal
to the sum of (i) 50% of Consolidated Net Income (if positive) of the Borrower
for such fiscal quarter, (ii) 100% of the Net Cash Proceeds of any Equity
Issuance by any Credit Party during such fiscal quarter and (iii) 100% of amount
of any net worth increase resulting from any acquisition by any Credit Party
during such fiscal quarter. The foregoing increases in the Minimum Compliance
Level shall be fully cumulative and no reduction in the Minimum Com-pliance
Level shall be made to reflect negative Consolidated Net Income for any period.
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 principal of any of
the Loans 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; or
(ii) default, and such default shall continue unremedied for
three (3) or more Business Days, in the payment when due of any interest on the
Loans, or of
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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 6.1(a), (b), (c), (f) or (j),
Sections 6.2, 6.9, 6.11, 6.12, Section 7.1 or Sections 7.3 through 7.18,
inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 6.1(d), (e), (g), (h), (i) and (k)
and such default shall continue unremedied for a period of at least five (5)
Business Days after the earlier of a Responsible Officer of a Credit Party
becoming aware of such default or 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 the
earlier of a Responsible Officer of a Credit Party becoming aware of such
default or 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 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
79
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 $2,000,000 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 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 $2,000,000 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
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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 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 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
(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 $1,000,000 in the aggregate or require payments exceeding
$1,000,000 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 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
81
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).
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
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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 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
83
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, Bank One (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" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank One (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 Bank One (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
84
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 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.
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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: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Muething & ▇▇▇▇▇▇▇ P. L. L.
1400 Provident Tower
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent:
Bank One, NA
Bank One Towers
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
86
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, 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;
87
(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 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.
88
(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 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
89
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. 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 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
90
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;
(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
Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 8.1(a), 10.2, 10.3, 10.5 or
10.9, without the prior written consent of each Lender;
91
(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;
(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
92
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
2.2(i), 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.
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
93
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 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
94
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.
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 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.
[Signature Page to Follow]
95
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:
--------
BANK ONE, NA, HUNTINGTON NATIONAL BANK
Lender and in its capacity as Agent
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
Applicable Lending Office: Applicable Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
KEYBANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
96
SCHEDULE 1.1(A)
INVESTMENTS
Digineer, Inc.
Beijing ▇▇▇▇▇▇ Wits Medical Consulting Co., Ltd.
Taiwan Medi-Pharm Consulting Co., Ltd.
SCHEDULE 1.1B
LIENS
Please see the attached listing of Liens as evidenced by the Uniform Commercial
Code filings in the relevant jurisdictions.
SCHEDULE 2.1(a)
COMMITMENT PERCENTAGES
A. Commitment Percentages
COMMITMENT AGGREGATE INITIAL AGGREGATE TERM
LENDER PERCENTAGE COMMITTED AMOUNT LOAN AMOUNT
------ ---------- ---------------- -----------
Bank One, NA 40% $ 9,200,000 $ 6,000,000
KeyBank National Association 30% $ 6,900,000 $ 4,500,000
Huntington National Bank 30% $ 6,900,000 $ 4,500,000
------ ----------- -----------
100.0% $23,000,000 $15,000,000
====== =========== ===========
B. Lender Information
BANK ONE, NA
CREDIT CONTACT OPERATIONS CONTACT PAYMENT INSTRUCTIONS
-------------- ------------------ --------------------
Bank One Towers ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
8044 ▇▇▇▇▇▇▇▇▇▇ Road Mail Code ▇▇▇-▇▇▇▇ ▇▇▇ #▇▇▇▇▇▇▇▇▇
OH3-4107 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Account #151010-0510
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: Commercial Loan
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Servicing
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Ref: Obligator #▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ Intl.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
KEYBANK NATIONAL ASSOCIATION
CREDIT CONTACT OPERATIONS CONTACT PAYMENT INSTRUCTIONS
-------------- ------------------ --------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ABA #▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Attn: ▇▇▇▇▇▇ ▇▇▇▇ Account #3057
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: Loan Specialty
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Ref: ▇▇▇▇▇▇ Int'l
Email: ▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
HUNTINGTON NATIONAL BANK
CREDIT CONTACT OPERATIONS CONTACT PAYMENT INSTRUCTIONS
-------------- ------------------ --------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Suite 305 (H20338) ABA #▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Account #15804/
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇ 7777777 - ▇▇▇▇▇▇ Int
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: Special Loan
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Processing (H20338)
SCHEDULE 5.1
LIABILITIES
None.
SCHEDULE 5.10
TAX INVESTIGATION
None.
SCHEDULE 5.12
ERISA
None
SCHEDULE 5.13
SUBSIDIARIES
See attached.
SCHEDULE 5.16
ENVIRONMENTAL DISCLOSURES
None
SCHEDULE 5.17
INTELLECTUAL PROPERTY
None
SCHEDULE 5.22
MATERIAL CONTRACTS
(a)
Clinical and Pharmacologic Research, Inc. Asset Purchase Agreement
Helsinn Service Agreement
Protective Compensation Agreements
Glaxo Wellcome Agreement for Clinical Research Outcomes
Pharmacia, Inc. Master Services Agreement
Procter & ▇▇▇▇▇▇ Service Agreements for the STAR/COMET studies
(b)
Helsinn has the right to terminate the Agreement upon sixty (60) days prior
written notice.
Glaxo-Wellcome has the right to terminate the Agreement if they terminate the
Study.
Pharmacia has the right to terminate the Master Services Agreement upon 180 days
notice.
Procter & ▇▇▇▇▇▇ has the right to terminate the Agreements upon 30 days advance
notice.
SCHEDULE 5.23
LABOR MATTERS
None.
SCHEDULE 5.4
REQUIRED CONSENTS, AUTHORIZATIONS, NOTICES AND FILINGS
Approval of the Board of Directors of ▇▇▇▇▇▇ International Inc., ▇▇▇▇▇▇ U.K.
Inc., ▇▇▇▇▇▇ Delaware Inc., AAC Consulting Group, Inc., Healthcare
Communications Inc., and Acer/Excel, Inc.
SCHEDULE 5.9
LITIGATION
▇▇▇▇▇▇▇▇ vs. ▇▇▇▇▇▇ International Inc. - complaint filed ▇▇▇▇▇▇▇▇ County, Ohio,
Court of Common Pleas - settlement has been reached.
SCHEDULE 5.25
FILING LOCATIONS
▇▇▇▇▇▇ INTERNATIONAL INC.
Ohio Secretary of State
▇▇▇▇▇▇ U.K. INC.
Ohio Secretary of State
HEALTH CARE COMMUNICATIONS INC.
Ohio Secretary of State
▇▇▇▇▇▇ DELAWARE INC.
Delaware Secretary of State