EXHIBIT 10.1
================================================================================
PUBLISHED CUSIP NUMBER: ____________
CREDIT AGREEMENT
Dated as of July 21, 2006
among
LITTELFUSE, INC.,
as Borrower,
BANK OF AMERICA, N.A.,
as Agent
and
The Other Lenders Party Hereto
NATIONAL CITY BANK OF THE MIDWEST
(F/K/A MICHIGAN CITY BANK OF MICHIGAN/ILLINOIS)
as Syndication Agent
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
================================================================================
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................ 1
1.01 Defined Terms................................................. 1
1.02 Other Interpretive Provisions................................. 21
1.03 Accounting Terms.............................................. 22
1.04 Rounding...................................................... 22
1.05 References to Agreements and Laws............................. 23
1.06 Exchange Rates; Currency Equivalents.......................... 23
1.07 Additional Alternative Currencies............................. 23
1.08 Change of Currency............................................ 24
1.09 Letter of Credit Amounts...................................... 24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS....................... 25
2.01 Committed Loans............................................... 25
2.02 Borrowings, Conversions and Continuations of Committed Loans.. 25
2.03 Letters of Credit............................................. 27
2.04 Swing Line Loans.............................................. 35
2.05 Prepayments................................................... 38
2.06 Reduction or Termination of Commitments....................... 39
2.07 Repayment of Loans............................................ 40
2.08 Interest...................................................... 40
2.09 Fees.......................................................... 41
2.10 Computation of Interest and Fees.............................. 41
2.11 Evidence of Debt.............................................. 41
2.12 Payments Generally............................................ 42
2.13 Sharing of Payments........................................... 44
2.14 Increase in Commitments....................................... 45
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...................... 46
3.01 Taxes......................................................... 46
3.02 Illegality.................................................... 48
3.03 Inability to Determine Rates.................................. 49
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.......... 49
3.05 Funding Losses................................................ 51
3.06 Matters Applicable to all Requests for Compensation........... 52
3.07 Survival...................................................... 52
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................... 52
4.01 Conditions of Initial Credit Extension........................ 52
4.02 Conditions to all Credit Extensions and Conversions and
Continuations................................................. 54
ARTICLE V REPRESENTATIONS AND WARRANTIES.............................. 55
5.01 Existence, Qualification and Power; Compliance with Laws...... 55
5.02 Authorization; No Contravention............................... 55
5.03 Governmental Authorization.................................... 55
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
5.04 Binding Effect................................................ 55
5.05 Financial Statements; No Material Adverse Effect.............. 55
5.06 Litigation.................................................... 56
5.07 No Default.................................................... 56
5.08 Ownership of Property; Liens.................................. 56
5.09 Environmental Compliance...................................... 57
5.10 Insurance..................................................... 57
5.11 Taxes......................................................... 57
5.12 ERISA Compliance.............................................. 57
5.13 Subsidiaries.................................................. 58
5.14 Disclosure.................................................... 58
5.15 Compliance with Laws.......................................... 58
5.16 Margin Regulations; Investment Company Act.................... 58
5.17 Taxpayer Identification Number; Other Identifying
Information................................................... 59
5.18 Intellectual Property; Licenses, Etc.......................... 59
5.19 Tax Shelter Regulations....................................... 59
ARTICLE VI AFFIRMATIVE COVENANTS....................................... 59
6.01 Financial Statements.......................................... 59
6.02 Certificates; Other Information............................... 60
6.03 Notices....................................................... 62
6.04 Payment of Obligations........................................ 62
6.05 Preservation of Existence, Etc................................ 62
6.06 Maintenance of Properties..................................... 63
6.07 Maintenance of Insurance...................................... 63
6.08 Compliance with Laws.......................................... 63
6.09 Books and Records............................................. 63
6.10 Inspection Rights............................................. 63
6.11 Use of Proceeds............................................... 64
6.12 Guarantors.................................................... 64
ARTICLE VII NEGATIVE COVENANTS.......................................... 64
7.01 Liens......................................................... 64
7.02 Investments................................................... 65
7.03 Indebtedness.................................................. 66
7.04 Fundamental Changes........................................... 66
7.05 Dispositions.................................................. 67
7.06 Restricted Payments........................................... 67
7.07 Change in Nature of Business.................................. 68
7.08 Transactions with Affiliates.................................. 68
7.09 Burdensome Agreements......................................... 68
7.10 Margin Regulations............................................ 68
7.11 Capital Expenditures.......................................... 68
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
7.12 Financial Covenants........................................... 69
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES.............................. 69
8.01 Events of Default............................................. 69
8.02 Remedies Upon Event of Default................................ 71
8.03 Application of Funds.......................................... 72
ARTICLE IX AGENT....................................................... 72
9.01 Appointment and Authorization of Agent........................ 72
9.02 Rights as a Lender............................................ 73
9.03 Exculpatory Provisions........................................ 73
9.04 Reliance by Agent............................................. 74
9.05 Delegation of Duties.......................................... 74
9.06 Resignation of Agent.......................................... 74
9.07 Non-Reliance on Agent and Other Lenders....................... 75
9.08 No Other Duties, Etc.......................................... 75
9.09 Agent May File Proofs of Claim................................ 75
9.10 Guaranty Matters.............................................. 76
ARTICLE X MISCELLANEOUS............................................... 76
10.01 Amendments, Etc............................................... 76
10.02 Notices; Effectiveness; Electronic Communication.............. 78
10.03 No Waiver; Cumulative Remedies................................ 79
10.04 Expenses; Indemnity; Damage Waiver............................ 80
10.05 Payments Set Aside............................................ 81
10.06 Successors and Assigns........................................ 82
10.07 Treatment of Certain Information; Confidentiality............. 87
10.08 Right of Set off.............................................. 87
10.09 Interest Rate Limitation...................................... 88
10.10 Counterparts; Integration; Effectiveness...................... 88
10.11 Survival of Representations and Warranties.................... 88
10.12 Severability.................................................. 88
10.13 Replacement of Lenders........................................ 89
10.14 Governing Law; Jurisdiction; Etc.............................. 89
10.15 Waiver of Jury Trial.......................................... 90
10.16 No Advisory or Fiduciary Responsibility....................... 91
10.17 USA PATRIOT Act Notice........................................ 91
10.18 Time of the Essence........................................... 91
10.19 Judgment Currency............................................. 91
SIGNATURES S-1
-iii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries
5.18 Intellectual Property Matters
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption Agreement
F Guaranty
G Opinion
-iv-
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of July 21, 2006,
among LITTELFUSE, INC., a Delaware corporation ("Borrower"), each lender from
time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Agent.
Borrower has requested that Lenders provide a revolving credit facility,
and Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquired Business" means any Person or assets, as the case may be,
acquired through an Acquisition.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary before giving effect to such merger or consolidation,
provided that Borrower or the Subsidiary is the surviving entity).
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Agent.
"Affiliate" means, with respect to any Person, another Person that directly
or indirectly through one or more intermediaries, Controls, or is Controlled by
or is under common Control with, the Person specified. "Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having ordinary voting power for the election
of directors, managing general partners or equivalent governing body of such
Person.
"Agent" means Bank of America in its capacity as (a) administrative agent
under any of the Loan Documents, (b) issuer of Letters of Credit hereunder,
and/or (c) as provider of Swing Line Loans hereunder, as the context requires,
or any successor Agent.
"Agent's Office" means Agent's address and, as appropriate, account as set
forth on Schedule 10.02, or such other address or account as Agent may from time
to time notify Borrower and Lenders.
"Aggregate Commitments" means the Commitments of all Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Sterling, Yen, Swiss Franc and
each other currency (other than Dollars) that is approved in accordance with
Section 1.07.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by Agent, at such time on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of the
Aggregate Commitments and $25,000,000. The Alternative Currency Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by Agent pursuant to Section 6.02(b):
Applicable Rate for
Eurocurrency Rate Applicable Rate
Consolidated Leverage Applicable Rate for Loans and for Base Rate
Pricing Level Ratio Commitment Fee Letters of Credit Loans
------------- ------------------------- ------------------- ------------------- ---------------
1 <1.00:1 0.100% 0.500% 0.000%
2 > or = 1.00:1 but <1.50:1 0.125% 0.625% 0.000%
3 > or = 1.50:1 but <2.00:1 0.150% 0.750% 0.000%
4 > or = 2.00:1 but <2.50:1 0.175% 0.875% 0.000%
5 > or = 2.50:1 0.200% 1.000% 0.000%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective commencing on the 5th
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided, however, that if no Compliance
Certificate is delivered when due in accordance with such Section, then Pricing
Level 5 shall apply commencing on the 5th Business Day following the date such
Compliance Certificate was required to have been delivered. The Applicable Rate
in effect from the Closing Date through the date which is the 5th Business Day
immediately following the date the initial Compliance Certificate is delivered
pursuant to Section 6.02(b) shall be determined based upon Pricing Level 1.
"Applicable Time" means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such
Alternative Currency as
-2-
may be determined by Agent to be necessary for timely settlement on the relevant
date in accordance with normal banking procedures in the place of payment.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.06(b), and accepted by the Agent, in substantially the
form of Exhibit E or any other form approved by the Agent.
"Attorney Costs" means and includes all fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the allocated
cost of internal legal services and all expenses and disbursements of internal
counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of Borrower and its Subsidiaries for the fiscal year ended December 31, 2005,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of Borrower and its Subsidiaries,
including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of Agent to
make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
-3-
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where Agent's Office with respect to Obligations
denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements,
settlements and payments in Dollars in respect of any such Eurocurrency
Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any
such day on which dealings in deposits in Dollars are conducted by and
between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"Cash Collateralize" has the meaning specified in Section 2.03(g)
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof
-4-
by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 20% or more of
the equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a fully
diluted basis (and, taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals: (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01 (or, in the case
of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make Committed
Loans to Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the Dollar
amount set forth opposite such Lender's name on Schedule 2.01, or in the
Assignment and Assumption Agreement pursuant to which such Lender becomes
-5-
a party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of Lenders
pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Capital Expenditures" means, as of the last day of any fiscal
quarter for any period, the capital expenditures of Borrower and its
Subsidiaries for such period, as the same are (or would in accordance with GAAP
be) set forth in the consolidated statement of changes in financial position of
Borrower and its Subsidiaries for such period.
"Consolidated EBITDA" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for federal, state, local and foreign income taxes payable by
Borrower and its Subsidiaries for such period, (iii) the amount of depreciation
and amortization expense for such period, and (iv) other expenses (excluding
depreciation and amortization) of Borrower and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or any
future period, and minus (b) all non-cash items increasing Consolidated Net
Income for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct obligations
arising under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than Borrower or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to Borrower or
such Subsidiary.
-6-
"Consolidated Interest Charges" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated EBITDA for the period of the four
consecutive fiscal quarters then ending to (b) Consolidated Interest Charges
paid or required to be paid during such period.
"Consolidated Leverage Ratio" means, as of the end of any fiscal quarter,
the ratio of (a) Consolidated Funded Indebtedness as of the end of such fiscal
quarter to (b) Consolidated EBITDA for the period of the four consecutive fiscal
quarters then ending.
"Consolidated Net Income" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Consolidated Net Worth" means, as of any date of determination, for
Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity of
Borrower and its Subsidiaries on that date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate".
"Credit Extension" means each of the following: (a) a Borrowing, and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, in each case to the fullest extent permitted by applicable Laws.
-7-
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by Agent at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 10.06(b)(iii), (v), and (vi) (subject to such consents,
if any, as may be required under Section 10.06(b)(iii)).
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into
-8-
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with Borrower within the meaning of Section 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower
or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means, for any Interest Period with respect to a
Eurocurrency Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for deposits in
the relevant currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not available at
such time for any reason, then the "Eurocurrency Rate" for such Interest Period
shall be the rate per annum determined by the Agent to be the rate at which
deposits in the relevant currency for delivery on the first day of
-9-
such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch (or other Bank of America branch or Affiliate) to major
banks in the London or other offshore interbank market for such currency at
their request at approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in Dollars or in an Alternative Currency. All Committed Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which Borrower is located and
(c) except as provided in the following sentence, in the case of a Foreign
Lender (other than an assignee pursuant to a request by Borrower under Section
10.13), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from Borrower with respect to such
withholding tax pursuant to Section 3.01(a).
"Existing Credit Agreement" has the meaning set forth in Section
4.01(a)(ix).
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such
-10-
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 rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
Agent.
"Fee Letter" has the meaning specified in Section 2.09(b).
"Foreign Lender" means, with respect to Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which Borrower is
resident for tax purposes. For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantors" means collectively, the Domestic Subsidiaries (present and
future) of Borrower.
"Guaranty" means the Guaranty made by the Guarantors in favor of Agent on
behalf of Lenders, in form and substance satisfactory to Agent.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the
-11-
payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation,
or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
-12-
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.
"Indemnified Liabilities" has the meaning specified in Section 10.04.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04.
"Information" has the meaning specified in Section 10.08.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by Borrower in its Committed Loan Notice;
provided that:
(a) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in,
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other
-13-
securities of another Person, (b) a loan, advance or capital contribution to,
Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) the purchase
or other acquisition (in one transaction or a series of transactions) of assets
of another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
All L/C Advances shall be denominated in Dollars.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing. All L/C Borrowings shall be denominated in
Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes Agent in its capacity as issuer of
Letters of Credit and provider of Swing Line Loans hereunder.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Borrower and Agent.
-14-
"Letter of Credit" means any letter of credit issued hereunder. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
Letters of Credit may be issued in Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by Agent.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $15,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing.
"Loan" means an extension of credit by a Lender to Borrower under Article
II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, and the
Guaranty.
"Loan Parties" means, collectively, Borrower and each Person (other than
Agent or any Lender) executing a Loan Document. The term Loan Party shall
include, without limitation, each Guarantor.
"Mandatory Cost" means, with respect to any period, the percentage rate per
annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual and contingent), condition (financial or otherwise) or prospects of
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Maturity Date" means (a) July 21, 2011, or (b) such earlier date upon
which the Aggregate Commitments may be terminated in accordance with the terms
hereof.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes
or is obligated to make contributions, or during the preceding five plan years,
has made or been obligated to make contributions.
-15-
"Note" means a promissory note made by Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans on any date,
the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Committed Loans occurring on such date; (ii) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line
Loans occurring on such date; and (iii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Agent in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day
-16-
by a branch or Affiliate of Bank of America in the applicable offshore interbank
market for such currency to major banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCAOB" means the Public Company Accounting Oversight Board.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Acquisition" means an Acquisition which meets each of the
following conditions: (i) the prior, effective written consent or approval to
such Acquisition of the board of directors or equivalent governing body of the
Acquired Business (and/or its parent entity) is obtained; (ii) the Acquired
Business represents a line of business substantially the same, similar or,
complimentary to the lines of business carried on by Borrower and its
Subsidiaries on the date hereof; (iii) immediately before and after giving
effect to such Acquisition, no Default or Event of Default shall exist, (iv)
immediately before and after giving effect to such Acquisition, Borrower shall
be in compliance with the financial tests set forth in Section 7.12 (for this
purpose the Consolidated Leverage Ratio shall be determined on a pro forma basis
as if the Acquisition had been consummated at the beginning of the period of the
four consecutive fiscal quarters of Borrower then most recently ended), and (v)
Borrower shall have forwarded to Agent such additional information regarding
such Acquisition or the Acquired Business as Agent shall have requested, and
(vi) Borrower shall have furnished to Agent a certificate of its chief financial
officer to the effect that the foregoing conditions are satisfied (such
certificate to be accompanied by a computation of the financial tests set forth
in Section 7.12 and to be satisfactory to Agent in all respects).
"Person" means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
Governmental Authority.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by Borrower or, with respect to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pro Rata Share" means, with respect to each Lender, at any time, a
fraction (expressed as a percentage), carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ at such time; provided that if the commitment of each
Lender to make Loans and the obligation of Agent to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to Section 10.07. The initial Pro Rata Share of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption Agreement pursuant to which such Lender becomes a
party hereto, as applicable.
"Register" has the meaning set forth in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of Borrower as prescribed by the
Securities Laws.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Required Lenders" means, as of any date of determination, two or more
Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans and the obligation of Agent to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party (and, solely
for purposes of notices given pursuant to Article II, any other officer or
employee of the applicable Loan Party so designated by any of the foregoing
officers in a notice to the Agent). Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition,
-18-
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to Borrower's stockholders, partners or
members (or the equivalent Person thereof).
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and
(iii) such additional dates as Agent shall determine or the Required Lenders
shall require; and (b) with respect to any Letter of Credit, each of the
following: (i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by Agent of any Letter
of Credit denominated in an Alternative Currency, and (iv) such additional dates
as Agent shall determine or the Required Lenders shall require.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by Agent to be customary in the place of disbursement or payment for
the settlement of international banking transactions in the relevant Alternative
Currency.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the PCAOB.
"Shareholders' Equity" means, as of any date of determination for Borrower
and its Subsidiaries on a consolidated basis, shareholders' equity as of that
date determined in accordance with GAAP.
"SPC" has the meaning specified in Section 10.06(h).
"Special Notice Currency" means at any time an Alternative Currency, other
than the currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.
"Spot Rate" for a currency means the rate determined by Agent to be the
rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. Chicago
time on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that Agent may obtain such spot rate from
another financial institution designated by Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency; and provided further that Agent may use such spot rate quoted
on the date as of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.
"Sterling" and "L" mean the lawful currency of the United Kingdom.
-19-
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the uncommitted and discretionary revolving credit
facility made available by Agent pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
-20-
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Swiss Franc" means the lawful currency of Switzerland.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
Agent to be a suitable replacement) is open for the settlement of payments in
Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $2,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Type" means with respect to a Committed Loan, its character as a Base Rate
Committed Loan or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States," and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Yen" and "Y" mean the lawful currency of Japan.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein", "hereto", "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as
-21-
a whole and not to any particular provision thereof; (ii) Article, Section,
Exhibit and Schedule references are to the Loan Document in which such
reference appears; (iii) the term "including" is by way of example and not
limitation; and (iv) the term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic
form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and
either Borrower or the Required Lenders shall so request, Agent, Lenders
and Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii)
Borrower shall provide to Agent and Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein
to consolidated financial statements of Borrower and its Subsidiaries or to
the determination of any amount for Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed
to include each variable interest entity that Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of
Variable Interest Entities: an interpretation of ARB No. 51 (January 2003)
as if such variable interest entity were a Subsidiary as defined herein.
1.04 ROUNDING. Any financial ratios required to be maintained by any Loan
Party pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such
-22-
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly provided
herein, (a) references to Organization Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 Exchange Rates; Currency Equivalents.
(a) Agent shall determine the Spot Rates as of each Revaluation Date
to be used for calculating Dollar Equivalent amounts of Credit Extensions
and Outstanding Amounts denominated in Alternative Currencies. Such Spot
Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating
financial covenants hereunder or except as otherwise provided herein, the
applicable amount of any currency (other than Dollars) for purposes of the
Loan Documents shall be such Dollar Equivalent amount as so determined by
Agent.
(b) Wherever in this Agreement in connection with a Committed
Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate
Loan or the issuance, amendment or extension of a Letter of Credit, an
amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of
Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to
the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by Agent.
1.07 ADDITIONAL ALTERNATIVE CURRENCIES.
(a) Borrower may from time to time request that Eurocurrency Rate
Loans be made and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of "Alternative Currency;"
provided that such requested currency is a lawful currency (other than
Dollars) that is readily available and freely transferable and convertible
into Dollars. In the case of any such request with respect to the making of
Eurocurrency Rate Loans, such request shall be subject to the approval of
Agent and Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the
approval of Agent.
(b) Any such request shall be made to Agent not later than 10:00 a.m.,
Chicago time, 20 Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by Agent in its sole
discretion). In the case of any
-23-
such request pertaining to Eurocurrency Rate Loans, Agent shall promptly
notify each Lender thereof. Each Lender (in the case of any such request
pertaining to Eurocurrency Rate Loans) shall notify Agent, not later than
10:00 a.m., Chicago time, ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Eurocurrency
Rate Loans or the issuance of Letters of Credit, as the case may be, in
such requested currency.
(c) Any failure by a Lender to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal
by such Lender to permit Eurocurrency Rate Loans to be made or Letters of
Credit to be issued in such requested currency. If Agent and all Lenders
consent to making Eurocurrency Rate Loans in such requested currency, Agent
shall so notify Borrower and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any
Committed Borrowings of Eurocurrency Rate Loans; and if Agent consents to
the issuance of Letters of Credit in such requested currency, Agent shall
so notify Borrower and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for purposes of any Letter
of Credit issuances. If Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.07, Agent shall promptly so
notify Borrower.
1.08 CHANGE OF CURRENCY.
(a) Each obligation of Borrower to make a payment denominated in the
national currency unit of any member state of the European Union that
adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of
interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member
state adopts the Euro as its lawful currency; provided that if any
Committed Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Committed Borrowing, at the end of the then current
Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as Agent may from time to time specify
to be appropriate to reflect the adoption of the Euro by any member state
of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as Agent may from time to time specify
to be appropriate to reflect a change in currency of any other country and
any relevant market conventions or practices relating to the change in
currency.
1.09 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the Dollar Equivalent of the
-24-
maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS.
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a "Committed Loan")
to Borrower in Dollars or in one or more Alternative Currencies from time to
time, on any Business Day during the Availability Period, in an aggregate amount
not to exceed at any time outstanding the amount of such Lender's Commitment;
provided, however, that after giving effect to any Committed Borrowing, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Commitment, and (iii) the aggregate Outstanding
Amount of all Committed Loans and L/C Obligations denominated in Alternative
Currencies shall not exceed the Alternative Currency Sublimit. Within the limits
of each Lender's Commitment, and subject to the other terms and conditions
hereof, Borrower may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurocurrency Rate Loans
shall be made upon Borrower's irrevocable notice to Agent, which may be
given by telephone. Each such notice must be received by Agent (i) not
later than 10:00 a.m., Chicago time, three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Dollars or of any conversion of
Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed
Loans, (ii) not later than 10:00 a.m., Chicago time, four Business Days (or
five Business Days in the case of a Special Notice Currency) prior to the
requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) not later than 1:00 p.m.,
Chicago time, on the requested date of any Borrowing of Base Rate Committed
Loans. Each telephonic notice by Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of
Borrower. Except as provided in Sections 2.03(c) and 2.04(c), each
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Each Committed Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one
Type to the other, or a
-25-
continuation of Eurocurrency Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, and
(vi) the currency of the Committed Loans to be borrowed. If Borrower fails
to specify a currency in a Committed Loan Notice requesting a Borrowing,
then the Committed Loans so requested shall be made in Dollars. If Borrower
fails to specify a Type of Committed Loan in a Committed Loan Notice or if
Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans; provided, however, that in the case of a
failure to timely request a continuation of Committed Loans denominated in
an Alternative Currency, such Loans shall be continued as Eurocurrency Rate
Loans in their original currency with an Interest Period of one month. Any
automatic conversion to Base Rate Loans shall be effective as of the last
day of the Interest Period then in effect with respect to the applicable
Eurocurrency Rate Loans. If Borrower requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Committed Loan may be
converted into or continued as a Committed Loan denominated in a different
currency, but instead must be prepaid in the original currency of such
Committed Loan and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, Agent shall promptly
notify each Lender of the amount (and currency) of its Pro Rata Share of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by Borrower, Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans or continuation of
Committed Loans denominated in a currency other than Dollars, in each case
as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan
available to Agent in Same Day Funds at Agent's Office for the applicable
currency not later than 3:00 p.m., Chicago time, in the case of any
Committed Loan denominated in Dollars, and not later than the Applicable
Time specified by the Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), Agent shall make all funds so received
available to Borrower in like funds as received by Agent either by (i)
crediting the account of Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to)
Agent by Borrower; provided, however, that if, on the date of the Committed
Loan Notice with respect to such Borrowing denominated in Dollars is given
by Borrower there are L/C Borrowings outstanding, then the proceeds of such
Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and second, to Borrower as provided above.
-26-
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may
be continued or converted only on the last day of an Interest Period for
such Eurocurrency Rate Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurocurrency Rate Loans
(whether in Dollars or any Alternative Currency) without the consent of the
Required Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an Alternative
Currency be prepaid, or redenominated into Dollars in the amount of the
Dollar Equivalent thereof, on the last day of the then current Interest
Period with respect thereto.
(d) Agent shall promptly notify Borrower and Lenders of the interest
rate applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate. The determination of the Eurodollar
Rate by Agent shall be conclusive in the absence of manifest error. At any
time that Base Rate Loans are outstanding, Agent shall notify Borrower and
Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
Agent agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03: (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or
in one or more Alternative Currencies for the account of Borrower or
its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to
honor drafts under the Letters of Credit; and (B) Lenders severally
agree to participate in Letters of Credit issued for the account of
Borrower; provided that Agent shall not be obligated to make any L/C
Credit Extension with respect to any Letter of Credit, and no Lender
shall be obligated to participate in, any Letter of Credit if as of
the date of such L/C Credit Extension, (w) the Total Outstandings
would exceed the Aggregate Commitments, (x) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such
Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans would exceed such Lender's Commitment, (y) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit, or (z) the aggregate Outstanding Amount of all L/C
Obligations and all Committed Loans denominated in Alternative
Currencies would exceed the Alternative Currency Sublimit. Within the
foregoing limits,
-27-
and subject to the terms and conditions hereof, Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly
Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.
(ii) Agent shall be under no obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain Agent from issuing such Letter of Credit, or any Law
applicable to Agent or any request or directive (whether or not
having the force of law) from any Governmental Authority with
jurisdiction over Agent shall prohibit, or request that Agent
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon Agent with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which Agent is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose
upon Agent any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which Agent in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iv), the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one
or more policies of Agent;
(E) such Letter of Credit is in an initial amount less than
$100,000, in the case of a commercial Letter of Credit, or
$500,000, in the case of a standby Letter of Credit, or is to be
used for a purpose other than those specified in Section 6.11;
(F) Agent does not as of the issuance date of such requested
Letter of Credit issue Letters of Credit in the requested
currency; or
(G) such Letter of Credit is to be denominated in a currency
other than Dollars or an Alternative Currency, unless all Lenders
have consented thereto.
(iii) Agent shall be under no obligation to amend any Letter of
Credit if (A) Agent would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
-28-
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of Borrower delivered to Agent in the form of
a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of Borrower. Such Letter of Credit Application
must be received by Agent (A) not later than 10:00 a.m., Chicago time,
at least two Business Days prior to the proposed issuance date or date
of amendment, as the case may be, of any Letter of Credit denominated
in Dollars, and (B) not later than 10:00 a.m., Chicago time, at least
ten Business Days prior to the proposed issuance date or date of
amendment, as the case may be, of any Letter of Credit denominated in
an Alternative Currency; or in each case such later date and time as
Agent may agree in a particular instance in its sole discretion. In
the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to Agent: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of
any drawing thereunder; and (G) such other matters as Agent may
require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to Agent (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as Agent may require. Additionally, Borrower shall
furnish to Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, as Agent may
require.
(ii) Promptly after receipt of any Letter of Credit Application
by Agent at the address set forth in Schedule 10.02 for receiving
Letter of Credit Applications and related correspondence, if the
requested issuance or amendment is permitted in accordance with the
terms hereof, then, subject to the terms and conditions hereof, Agent
shall, on the requested date, issue a Letter of Credit for the account
of Borrower or enter into the applicable amendment, as the case may
be, in each case in accordance with Agent's usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from Agent a risk participation in
such Letter of Credit in an amount equal to the product of such
Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, Agent will also deliver to
Borrower a true and complete copy of such Letter of Credit or
amendment.
-29-
(iv) If Borrower so requests in any applicable Letter of Credit
Application, Agent may, in it sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto- Extension Letter of Credit must permit Agent to prevent any such
extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice
to the beneficiary thereof not later than a day (the "Non- Extension
Notice Date") in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed by
Agent, Borrower shall not be required to make a specific request to
Agent for any such extension. Once an Auto- Extension Letter of Credit
has been issued, Lenders shall be deemed to have authorized (but may
not require) Agent to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that Agent shall not permit any
such extension if (A) Agent has determined that it would have no
obligation at such time to issue such Letter of Credit in its extended
form under the terms hereof (by reason of Section 2.03(a)(ii) or
otherwise), or (B) it has received notice (which may be by telephone
or in writing) at least seven (7) Business Days before the Non-
Extension Notice Date (1) from the Required Lenders that they have
elected not to permit such extension or (2) from any Lender or
Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied. Notwithstanding anything to the
contrary contained herein, Agent shall have no obligation to permit
the extension of any Auto- Extension Letter of Credit at any time.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of drawing under such Letter of Credit, Agent shall notify
Borrower thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, Borrower shall reimburse Agent in such
Alternative Currency, unless (i) Agent (at its option) shall have
specified in such notice that it will require reimbursement in
Dollars, or (ii) in the absence of any such requirement for
reimbursement in Dollars, Borrower shall have notified Agent promptly
following receipt of the notice of drawing that Borrower will
reimburse Agent in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an
Alternative Currency, Agent shall notify Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 10:00 a.m., Chicago time, on the
date of any payment by Agent under a Letter of Credit to be reimbursed
in Dollars, or the Applicable Time on the date of any payment by Agent
under a Letter of Credit to be reimbursed in an Alternative Currency
(each such date, an "Honor Date"), Borrower shall reimburse Agent in
an amount equal to the amount of such drawing and in the applicable
currency. If Borrower fails to so reimburse Agent by such time, Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an
-30-
Alternative Currency) (the "Unreimbursed Amount"), and the amount of
such Lender's Pro Rata Share thereof. In such event, Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to
be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02 (other than the delivery
of a Committed Loan Notice). Any notice given by Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if promptly
confirmed in writing; provided that the lack of such a prompt
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Lender (including Agent in its capacity as a Lender)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to Agent at Agent's Office for Dollar-denominated payments
in an amount equal to its Pro Rata Share of the Unreimbursed Amount
not later than 12:00 p.m., Chicago time, on the Business Day specified
in such notice by Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to Borrower in such
amount.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, Borrower shall be deemed to have incurred from Agent an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.
In such event, each Lender's payment to Agent pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under this
Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse Agent for any amount
drawn under any Letter of Credit, interest in respect of such Lender's
Pro Rata Share of such amount shall be solely for the account of
Agent.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse Agent for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Agent, Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a
Default; or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing. No such making of an L/C Advance
shall relieve or otherwise impair the obligation of Borrower to
reimburse Agent for the
-31-
amount of any payment made by Agent under any Letter of Credit,
together with interest as provided herein.
(vi) If any Lender fails to make available to Agent any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), Agent shall be entitled to recover from such Lender, on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to Agent at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate
of Agent submitted to any Lender with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after Agent has made a payment under any Letter
of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if
Agent receives any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by
Agent), Agent will distribute to such Lender its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in Dollars and in the same funds as those received by
Agent.
(ii) If any payment received by Agent pursuant to Section
2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.06 (including pursuant to any settlement
entered into by Agent in its discretion), each Lender shall pay to
Agent its Pro Rata Share thereof on demand of Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect.
(e) Obligations Absolute. The obligation of Borrower to reimburse
Agent for each drawing under each Letter of Credit, and to repay each L/C
Borrowing, shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
Agent or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such
-32-
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment by Agent under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by Agent
under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to Borrower or in
the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, Borrower.
No payment by Borrower to Agent of any reimbursement obligation or L/C
Borrowing shall constitute a waiver by Borrower of any of its rights under
Section 2.03(f). Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in the event
of any claim of noncompliance with Borrower's instructions or other
irregularity, Borrower will immediately notify Agent. Borrower shall be
conclusively deemed to have waived any such claim against Agent and its
correspondents unless such notice is given as aforesaid.
(f) Role of Agent. Each Lender and Borrower agree that, in paying any
drawing under a Letter of Credit, Agent shall not have any responsibility
to obtain any document (other than any sight draft, certificates and
documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of
Agent, any of its Related Parties nor any correspondents, participants or
assignees of Agent shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of
Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii)
the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit
Application. Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of
Credit; provided,
-33-
however, that this assumption is not intended to, and shall not, preclude
Borrower's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of
Agent, any of its Related Parties nor any correspondent, participant or
assignee of Agent, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, Borrower may
have a claim against Agent, and Agent may be liable to Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by Borrower which Borrower proves were
caused by Agent's willful misconduct or gross negligence or Agent's willful
failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of such Letter of Credit. In furtherance and not
in limitation of the foregoing, Agent may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and
Agent shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Cash Collateral. Upon the request of Agent, (i) if Agent has
honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter
of Credit Expiration Date, (A) any Letter of Credit for any reason remains
outstanding and partially or wholly undrawn, or (B) any amount remains
available to be drawn under any Letter of Credit by reason of the operation
of Rule 3.14 of the ISP, Borrower shall immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the
Letter of Credit Expiration Date, as the case may be). Agent may, at any
time and from time to time after the initial deposit of Cash Collateral,
request that additional Cash Collateral be provided in order to protect
against the results of exchange rate fluctuations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and
Section 8.02(c), "Cash Collateralize" means to pledge and deposit with or
deliver to Agent, for the benefit of Agent, as issuer of Letters of Credit
and Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to
Agent (which documents are hereby consented to by Lenders). Derivatives of
such term have corresponding meanings. Borrower hereby grants to Agent, for
the benefit of Agent, as issuer of Letters of Credit and Lenders, a
security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by
Agent and Borrower when a Letter of Credit is issued, (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the "ICC") at the time
of issuance shall apply to each commercial Letter of Credit.
-34-
(i) Letter of Credit Fees. Borrower shall pay to Agent for the account
of each Lender in accordance with its Pro Rata Share a letter of credit fee
for each Letter of Credit equal to the Applicable Rate times the Dollar
Equivalent of the actual daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). Such letter of credit fees shall be computed
on a quarterly basis in arrears. Such letter of credit fees shall be due
and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the actual daily amount of each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
Agent. Borrower shall pay directly to Agent for its own account, in
Dollars, a fronting fee with respect to each Letter of Credit in the amount
specified in the Fee Letter, payable on the Dollar Equivalent of the actual
daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit), due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. In addition, Borrower
shall pay directly to Agent for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs
and charges, of Agent relating to letters of credit as from time to time in
effect, in Dollars or such Alternative Currency as shall be separately
agreed. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, Borrower shall be
obligated to reimburse Agent for any and all drawings under such Letter of
Credit. Borrower hereby acknowledges that the issuance of Letters of Credit
for the account of Subsidiaries inures to the benefit of Borrower, and that
Borrower's business derives substantial benefits from the businesses of
such Subsidiaries.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, Agent agrees to consider in its sole and absolute discretion making
loans in Dollars (each such loan, a "Swing Line Loan") to Borrower from
time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such
-35-
Swing Line Loans, when aggregated with the Pro Rata Share of Outstanding
Amount of Committed Loans and L/C Obligations of Agent in its capacity as a
Lender of Committed Loans, may exceed the amount of Agent's Commitment in
its capacity as a Lender; provided, however, that after giving effect to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. The Swing Line is a discretionary, uncommitted
facility and Agent may terminate or suspend the Swing Line at any time in
its sole discretion upon notice to Borrower which notice may be given by
Agent before or after Borrower requests a Swing Line Loan hereunder. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from Agent a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
Borrower's irrevocable notice to Agent, which may be given by telephone,
unless Agent has notified, or after receiving notice of a Swing Line
Borrowing notifies, Borrower that the Swing Line has been or is terminated
or suspended as provided in Section 2.04(a), Each such notice must be
received by Agent not later than 2:00 p.m., Chicago time, on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $500,000, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of
Borrower. Unless one or more of the applicable conditions specified in
Article IV is not then satisfied or the Swing Line has been or is
terminated or suspended by Agent as provided above, then, subject to the
terms and conditions hereof, Agent will, not later than 4:00 p.m., Chicago
time, on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to Borrower at its office by
crediting the account of Borrower on the books of Agent in Same Day Funds.
Lenders agree that Agent may agree to modify the borrowing procedures used
in connection with the Swing Line in its discretion and without affecting
any of the obligations of Lenders hereunder.
(c) Refinancing of Swing Line Loans.
(i) Agent at any time in its sole and absolute discretion
(including if Agent has terminated or suspended the Swing Line as
provided above) may request, on behalf of Borrower (which hereby
irrevocably authorizes Agent to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the
principal amount of Base Rate
-36-
Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. Agent shall
furnish Borrower with a copy of the applicable Committed Loan Notice.
Each Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Committed Loan Notice available to Agent in
Same Day Funds at Agent's Office for Dollar-denominated payments not
later than 12:00 p.m., Chicago time, on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to Borrower in such amount.
(ii) If for any reason any Swing Line Loan cannot be financed by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Committed Loans submitted by Agent as set forth
herein, shall be deemed to be a request by Agent that each of Lenders
fund its risk participation in the relevant Swing Line Loan and each
Lender's payment to Agent pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to Agent any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), Agent shall be entitled to recover from such Lender, on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to Agent at a rate per annum equal to the
Applicable Overnight Rate from time to time in effect. A certificate
of Agent submitted to any Lender with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against Agent, Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of
the foregoing. No such funding of risk participations shall relieve or
otherwise impair the obligation of Borrower to repay Swing Line Loans,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if Agent receives any payment on
account of such Swing Line Loan, Agent will distribute to such Lender
its Pro Rata Share of such payment (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which
such Lender's risk participation was funded) in the same funds as
those received by Agent.
-37-
(ii) If any payment received by Agent in respect of principal or
interest on any Swing Line Loan is required to be returned by Agent
under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by Agent in its discretion),
each Lender shall pay to Agent its Pro Rata Share thereof on demand of
Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Applicable
Overnight Rate.
(e) Interest for Account of Agent. Agent shall be responsible for
invoicing Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this
Section 2.04 to refinance such Lender's Pro Rata Share of any Swing Line
Loan, interest in respect of such Pro Rata Share shall be solely for the
account of Agent.
2.05 PREPAYMENTS.
(a) Borrower may, upon notice to Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by Agent not
later than (A) 10:00 a.m., Chicago time, three Business Days prior to any
date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B)
10:00 a.m., Chicago time, four Business Days (or five, in the case of
prepayment of Loans denominated in Special Notice Currencies) prior to any
date of prepayment of Eurocurrency Rate Loans denominated in Alternative
Currencies, and (C) 1:00 p.m., Chicago time, on the date of prepayment of
Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof, or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date
and amount of such prepayment and the Type(s) of Committed Loans to be
prepaid, and, if Eurocurrency Loans are to be prepaid, the Interest
Period(s) of such Loans. Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's Pro Rata
Share of such prepayment. If such notice is given by Borrower, Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Committed Loans
of Lenders in accordance with their respective Pro Rata Shares.
(b) Borrower may, upon notice to Agent, at any time or from time to
time, voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by Agent
not later than 2:00 p.m., Chicago time, on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of
$100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by Borrower, Borrower shall make such
-38-
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided, however, that Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after the prepayment in full of the Committed Loans and
Swing Line Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.
(d) If Agent notifies Borrower at any time that the Outstanding Amount
of all Loans and L/C Obligations denominated in Alternative Currencies at
such time exceeds an amount equal to the Alternative Currency Sublimit then
in effect, then, within two Business Days after receipt of such notice,
Borrower shall prepay Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount sufficient to reduce such Outstanding Amount as of
such date of payment to an amount not to exceed 100% of the Alternative
Currency Sublimit then in effect. Agent may, at any time and from time to
time after the initial deposit of such Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the
results of further exchange rate fluctuations.
(e) No optional prepayment of Committed Loans denominated in an
Alternative Currency may be made other than on the last day of the
applicable Interest Period for such Committed Loans, unless Lenders consent
thereto.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. Borrower may, upon notice to
Agent, terminate the Aggregate Commitments, or from time to time permanently
reduce the Aggregate Commitments; provided that (i) any such notice shall be
received by Agent not later than 10:00 a.m., five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) Borrower shall not terminate or reduce the Aggregate Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Aggregate Commitments and (iv) if, after
giving effect to any reduction of the Aggregate Commitments, the Alternative
Currency Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. Agent will promptly notify
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Once reduced in accordance with this Section, the Aggregate
Commitments may not be increased. The amount of any such Aggregate Commitment
reduction shall not be applied to the Alternative Currency Sublimit or the
Letter of Credit Sublimit unless otherwise specified by Borrower. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All commitment fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
-39-
2.07 REPAYMENT OF LOANS.
(a) Borrower shall repay to Lenders on the Maturity Date the aggregate
principal amount of Committed Loans outstanding on such date.
(b) Borrower shall repay to Agent each Swing Line Loan on the Maturity
Date.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate plus (in
the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State) the
Mandatory Cost; (ii) each Base Rate Committed Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate.
(b) If any amount payable by Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, while any Event of Default exists (or after acceleration),
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past
due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), (i) whenever a rate
of interest or fee rate hereunder is calculated on the basis of a year (the
"deemed year") that contains fewer days than the actual number of days in
the calendar year of calculation, such rate of interest or fee rate shall
be expressed as a yearly rate by multiplying such rate of interest or fee
rate by the actual number of days in the calendar year of calculation and
dividing it by the number of days in the deemed year, (ii) the principle of
deemed reinvestment of interest shall not apply to any interest calculation
hereunder and (iii) the rates of interest stipulated herein are intended to
be nominal rates and not effective rates or yields.
-40-
2.09 FEES. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Commitment Fee. Borrower shall pay to Agent for the account of
each Lender in accordance with its Pro Rata Share, a commitment fee in
Dollars equal to the Applicable Rate times the actual daily amount by which
the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Committed Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the Maturity
Date. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate
was in effect. Borrower acknowledges that Swing Line Loans outstanding from
time to time are not considered Committed Loans in calculating the
commitment fee.
(b) Other Fees. Borrower shall pay to Arranger and Agent for their own
respective accounts, in Dollars, fees in the amounts and at the times
specified in the letter agreement, dated June 7, 2006 (the "Fee Letter"),
among Borrower, Arranger and Agent. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's prime rate
shall be made on the basis of a year of 365 or 366 days, as the case may be. All
other computations of interest and all fees shall be made on the basis of a year
of 360 days and the actual number of days elapsed, (which results in more fees
or interest, as applicable, being paid than if computed on the basis of a 365
day year), or, in the case of interest in respect of Committed Loans denominated
in Alternative Currencies as to which market practice differs from the
foregoing, in accordance with such market practice. Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan,
or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by Agent in
the ordinary course of business. The accounts or records maintained by
Agent and each Lender shall be conclusive absent manifest error of the
amount of the Credit Extensions made by Lenders to Borrower and the
interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of
Borrower hereunder to pay any amount owing with respect to the Obligations.
In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of Agent in respect of such
matters, the accounts and records of Agent shall
-41-
control in the absence of manifest error. Upon the request of any Lender
made through Agent, Borrower shall execute and deliver to such Lender
(through Agent) a Note, which shall evidence, such Lender's Loans, in
addition to such accounts or records. Each Lender may attach schedules to
its Note and endorse thereon the date, Type (if applicable), amount and
maturity of the applicable Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of Agent shall control in the absence of manifest
error.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or set
off. Except as otherwise expressly provided herein and except with respect
to principal of and interest on Loans denominated in an Alternative
Currency, all payments by Borrower hereunder shall be made to Agent, for
the account of the respective Lenders to which such payment is owed, at the
applicable Agent's Office in Dollars and in Same Day Funds not later than
2:00 p.m., Chicago time, on the date specified herein. Except as otherwise
expressly provided herein, all payments by Borrower hereunder with respect
to principal and interest on Loans denominated in an Alternative Currency
shall be made to Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable Agent's Office in such Alternative
Currency and in Same Day Funds not later than the Applicable Time specified
by Agent on the dates specified herein. If, for any reason, Borrower is
prohibited by any Law from making any required payment hereunder in an
Alternative Currency, Borrower shall make such payment in Dollars in the
Dollar Equivalent of the Alternative Currency payment amount. Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by Agent
(i) after 1:00 p.m., Chicago time, in the case of payments in Dollars, or
(ii) after the Applicable Time specified by Agent in the case of payments
in an Alternative Currency, shall in each case be deemed received on the
next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
On each date when the payment of any principal, interest or fees are
due hereunder or under any Note, Borrower agrees to maintain on deposit in
an ordinary checking account (or primary concentration account if so
designated by Borrower) maintained by Borrower with Agent (as such account
shall be designated by Borrower in a written notice to Agent from time to
time, the "Borrower Account") an amount sufficient to pay such principal,
interest or fees in full on such date. Borrower hereby authorizes Agent (A)
to deduct automatically all principal, interest or fees when due hereunder
or under any Note from Borrower Account, and (B) if and to the extent any
payment of principal, interest or fees under this Agreement or any Note is
not made when
-42-
due to deduct any such amount from any or all of the accounts of Borrower
maintained at Agent. Agent agrees to provide written notice to Borrower of
any automatic deduction made pursuant to this Section 2.12(a)(ii) showing
in reasonable detail the amounts of such deduction. Lenders agree to
reimburse Borrower based on their Pro Rata Share for any amounts deducted
from such accounts in excess of amount due hereunder and under any other
Loan Documents.
(b) If any payment to be made by Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless Borrower or any Lender has notified Agent, prior to the
date any payment is required to be made by it to Agent hereunder, that
Borrower or such Lender, as the case may be, will not make such payment,
Agent may assume that Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in fact
made to Agent in Same Day Funds, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to Agent the portion of such assumed payment
that was made available to such Lender in Same Day Funds, together
with interest thereon in respect of each day from and including the
date such amount was made available by Agent to such Lender to the
date such amount is repaid to Agent in Same Day Funds, at the
Applicable Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to Agent the amount thereof in Same Day Funds,
together with interest thereon for the period from the date such
amount was made available by Agent to Borrower to the date such amount
is recovered by Agent (the "Compensation Period") at a rate per annum
equal to the Applicable Overnight Rate from time to time in effect. If
such Lender pays such amount to Agent, then such amount shall
constitute such Lender's Committed Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon
Agent's demand therefor, Agent may make a demand therefor upon
Borrower, and Borrower shall pay such amount to Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of Agent to any Lender or Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.
-43-
(d) If any Lender makes available to Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article
II, and such funds are not made available to Borrower by Agent because the
conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, Agent shall
return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(e) The obligations of Lenders hereunder to make Committed Loans and
to fund participations in Letters of Credit and Swing Line Loans are
several and not joint. The failure of any Lender to make any Committed Loan
or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS. If any Lender shall, by exercising any right of
set off or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Committed Loans made by it, or the participations
in L/C Obligations or in Swing Line Loans held by it resulting in such Lender's
receiving payment of a proportion of the aggregate amount of such Committed
Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Agent of such fact, and (b) purchase (for cash
at face value) participations in the Committed Loans and subparticipations in
L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery,
without interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Committed Loans or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant,
other than to Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).
-44-
2.14 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default or Event of Default, upon notice
to the Agent (which shall promptly notify Lenders), Borrower may from time
to time request an increase in the Aggregate Commitments up to an aggregate
of $50,000,000. At the time of sending such notice, Borrower (in
consultation with the Agent) shall specify the time period within which
each Lender is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to Lenders).
(b) Each Lender shall notify the Agent within such time period whether
or not it agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Pro Rata Share of such
requested increase. Any Lender not responding within such time period shall
be deemed to have declined to increase its Commitment. The Agent shall
notify Borrower and each Lender of Lenders' responses to each request made
hereunder. To achieve the full amount of a requested increase, Borrower may
also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance satisfactory to the Agent and its
counsel.
(c) If the Aggregate Commitments are increased in accordance with this
Section, Agent and Borrower shall determine the effective date (the
"Increase Effective Date") and the final allocation of such increase. Agent
shall promptly notify Borrower and Lenders of the final allocation of such
increase and the Increase Effective Date.
(d) As a condition precedent to such increase, Borrower shall deliver
to Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and, (ii) in the case of Borrower, including a Compliance
Certificate demonstrating pro forma compliance with Section 7.12 after
giving effect to such increase and (iii) certifying that, before and after
giving effect to such increase, the representations and warranties
contained in Article V are true and correct on and as of the Increase
Effective Date (except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for purposes of
this Section 2.14, the representation and warranties contained in
subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to
the most recent statement furnished pursuant to clauses (a), (b) and (c),
respectively, of Section 6.01) and no Default or Event of Default exists.
Borrower shall deliver new or amended Committed Loan Notes reflecting the
increased Commitment of any Lender holding or requesting a Note. Agent
shall distribute an amended Schedule 2.01 (which shall be deemed
incorporated into this Agreement), to reflect any changes therein resulting
from such increase.
(e) Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant
to Section 3.05) to the extent necessary to keep the outstanding Committed
Loans ratable with any revised Pro Rata Shares arising from any nonratable
increase in the Commitments under this Section; provided that in the case
of any Committed Loans denominated in an Alternative
-45-
Currency, no such prepayment may be made other than on the last day of the
applicable Interest Period for such Committed Loans, unless Lenders consent
thereto.
(f) This Section shall supersede any provisions in Section 10.01 to
the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of Borrower hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (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) the Agent or Lender, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made, (ii)
Borrower shall make such deductions and (iii) Borrower shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) Payment of Other Taxes by Borrower. Without limiting the
provisions of subsection (a) above, Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Indemnification by Borrower. Borrower shall indemnify the Agent
and each Lender, within 10 days after demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to Borrower by a Lender (with a copy to the Agent), or by the
Agent on its own behalf or on behalf of a Lender shall be conclusive absent
manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority,
Borrower shall deliver to the Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with
-46-
respect to payments hereunder or under any other Loan Document shall
deliver to Borrower (with a copy to the Agent), at the time or times
prescribed by applicable law or reasonably requested by Borrower or the
Agent, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if requested
by Borrower or the Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by Borrower or the Agent as will
enable Borrower or the Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, any Foreign Lender shall
deliver to Borrower and the Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of Borrower or the Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit
Borrower to determine the withholding or deduction required to be
made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status
for U.S. withholding tax purposes, each Lender agrees promptly to deliver
to the Agent or Borrower, as the Agent or Borrower shall reasonably
request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by Borrower pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in
-47-
such other jurisdiction. Each Lender shall promptly (i) notify the Agent of
any change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Additionally, Borrower shall promptly
deliver to the Agent or any Lender, as the Agent or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by Borrower, as are required to be furnished by such Lender or
the Agent under such Laws in connection with any payment by the Agent or
any Lender of Taxes or Other Taxes, or otherwise in connection with the
Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Agent or any Lender
determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by Borrower or
with respect to which Borrower has paid additional amounts pursuant to this
Section, it shall pay to Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by
Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Agent or
such Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), provided that Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent or such Lender in the event the Agent or such
Lender is required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require the Agent or any Lender
to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or
any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to Borrower through Agent, any obligation of such Lender
to make or continue Eurocurrency Rate Loans in the affected currency or
currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert
Base Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended until
such Lender notifies Agent and Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, Borrower shall,
upon demand from such Lender (with a copy to Agent), prepay or, if applicable
and such Loans are denominated in Dollars, convert all such Eurocurrency Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain
-48-
such Eurocurrency Rate Loans. Upon any such prepayment or conversion, Borrower
shall also pay accrued interest on the amount so prepaid or converted and all
amounts due under Section 3.05 in accordance with the terms thereof due to such
prepayment or conversion. Each Lender agrees to designate a different Lending
Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
3.03 INABILITY TO DETERMINE RATES. If Agent determines in connection with
any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof for any reason that that (a) deposits (whether in Dollars or an
Alternative Currency) are not being offered to banks in the applicable offshore
interbank market for such currency for the applicable amount and Interest Period
of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist
for determining the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or
an Alternative Currency), or (c) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to Lenders of funding such Eurocurrency
Rate Loan, Agent will promptly so notify Borrower and all Lenders. Thereafter,
the obligation of Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until Agent revokes such
notice. Upon receipt of such notice, Borrower may revoke any pending request for
a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate
Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EUROCURRENCY RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except (A) any reserve
requirement contemplated by Section 3.04(e) and (B) the requirements
of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as
set forth below) or the Agent;
(ii) subject any Lender or the Agent to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made
by it, or change the basis of taxation of payments to such Lender or
the Agent in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 3.01 and the imposition of, or any change in
the rate of, any Excluded Tax payable by such Lender or the Agent);
(iii) result in the failure of the Mandatory Cost, as calculated
hereunder, to represent the cost to any Lender of complying with the
requirements of the Bank of England and/or the Financial Services
Authority or the European Central
-49-
Bank in relation to its making, funding or maintaining Eurocurrency
Rate Loans; or
(iv) impose on any Lender or the Agent or the London interbank
market any other condition, cost or expense affecting this Agreement
or Eurocurrency Rate Loans made by such Lender or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurocurrency Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost
to such Lender or the Agent of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the Agent hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or the
Agent, Borrower will pay to such Lender or the Agent, as the case may be,
such additional amount or amounts as will compensate such Lender or the
Agent, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or the Agent determines that
any Change in Law affecting such Lender or the Agent or any Lending Office
of such Lender or such Lender's or the Agent's holding company, if any,
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Agent's capital or on the capital of
such Lender's or the Agent's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Agent, to a level below that which such Lender or the
Agent or such Lender's or the Agent's holding company could have achieved
but for such Change in Law (taking into consideration such Lender's or the
Agent's policies and the policies of such Lender's or the Agent's holding
company with respect to capital adequacy), then from time to time Borrower
will pay to such Lender or the Agent, as the case may be, such additional
amount or amounts as will compensate such Lender or the Agent or such
Lender's or the Agent's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
Agent setting forth the amount or amounts necessary to compensate such
Lender or the Agent or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to
Borrower shall be conclusive absent manifest error. Borrower shall pay such
Lender or the Agent, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the Agent to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the Agent's
right to demand such compensation, provided that Borrower shall be required
to compensate a Lender or the Agent pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the Agent, as the
-50-
case may be, notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Agent's intention
to claim compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).
(e) Additional Reserve Requirements. Borrower shall pay to each
Lender, (i) as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Eurocurrency Rate Loan equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), and (ii) as long as such Lender
shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the funding of
the Eurocurrency Rate Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or
Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which in each case shall be due and
payable on each date on which interest is payable on such Loan, provided
Borrower shall have received at least 10 days' prior notice (with a copy to
the Agent) of such additional interest or costs from such Lender. If a
Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest or costs shall be due and payable 10 days
from receipt of such notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to Agent) from
time to time, Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by
Borrower; or
(c) any failure by Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a
different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by
Borrower pursuant to Section 10.13;
-51-
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract. Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.
For purposes of calculating amounts payable by Borrower to Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate
Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or
other borrowing in the interbank market for such currency for a comparable
amount and for a comparable period, whether or not such Eurocurrency Rate Loan
was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A certificate of
Agent or any Lender claiming compensation under this Article III and setting
forth the calculation of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, Agent or such Lender may use any reasonable averaging and
attribution methods.
3.07 SURVIVAL. All of Borrower's obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) Agent's receipt of the following, each of which shall be originals
or facsimiles (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the signing Loan Party,
each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty,
sufficient in number for distribution to Agent, each Lender and
Borrower;
(ii) a Note executed by Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
-52-
(iv) such documents and certificates as Agent may reasonably
require to evidence that each Loan Party is duly organized or formed
and that Borrower and each Guarantor is, validly existing and in good
standing in its jurisdiction of organization;
(v) a favorable opinion of counsel to the Loan Parties acceptable
to Agent, addressed to Agent and each Lender, as to such matters
concerning the Loan Parties and the Loan Documents in form and
substance satisfactory to Agent;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and
(b) have been satisfied, and (B) that there has been no event or
circumstance since the date of the Audited Financial that has had or
could reasonably be expected to have a Material Adverse Effect, and
(C) a calculation of the financial covenants set forth in Section 7.12
as of the last day of the fiscal quarter of Borrower ended April 1,
2006;
(viii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(ix) evidence that the Credit Agreement dated as of August 26,
2003, as amended or modified, among Borrower, Bank of America, as
agent and a syndicate of lenders (the "Existing Credit Agreement") has
been or concurrently with the Closing Date is being terminated, and
that all loans and obligations thereunder have been paid in full; and
(x) such other assurances, certificates, documents, consents or
opinions as Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by Agent, Borrower shall have paid all Attorney
Costs of Agent to the extent invoiced prior to or on the Closing Date, plus
such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between Borrower and
Agent).
(d) The Closing Date shall have occurred on or before July 31, 2006.
-53-
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Agent shall have received notice from
such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS AND CONVERSIONS AND CONTINUATIONS.
The obligation of each Lender to honor any Request for Credit Extension (other
than a Committed Loan Notice requesting only a conversion of Committed Loans to
the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the
following conditions precedent:
(a) The representations and warranties of Borrower and each other Loan
Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection
herewith, shall be true and correct on and as of the date of such Credit
Extension, conversion or continuation, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a), (b) and (c) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to
clauses (a), (b) and (c), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension, conversion or continuation.
(c) Agent shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which in the reasonable opinion of
Agent would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency.
(e) Agent shall have received, in form and substance satisfactory to
it, such other assurances, certificates, documents or consents related to
the foregoing as Agent or the Required Lenders reasonably may require.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurocurrency Rate Loans) submitted by Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
-54-
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver, and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or licenses, except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto. This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the
financial condition of Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein.
-55-
(b) The Audited Financial Statements and the Borrower's Form 10K filed
with the SEC for the fiscal year ended December 31, 2005 show all material
indebtedness and other liabilities, direct or contingent, of Borrower and
its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness as required to be disclosed under the
applicable rules and regulations promulgated or approved by the SEC.
(c) The unaudited consolidated financial statements of Borrower and
its Subsidiaries dated March 31, 2006, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
the fiscal quarter ended on that date (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and ; (ii) fairly present the financial
condition of Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject in the case
of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.
(d) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has
had or could reasonably be expected to have a Material Adverse Effect.
(e) To the best knowledge of Borrower, no Internal Control Event
exists or has occurred since the date of the Audited Financial Statements
that has resulted in or could reasonably be expected to result in a
misstatement in any material respect, in any financial information
delivered or to be delivered to the Agent or the Lenders, of (i) covenant
compliance calculations provided hereunder or (ii) the assets, liabilities,
financial condition or results of operations of Borrower and its
Subsidiaries on a consolidated basis.
5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06 hereto,
there are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect and there has
been no adverse change in the status, or financial effect on any Loan Party or
any Subsidiary thereof, of the matters described on Schedule 5.06.
5.07 NO DEFAULT. Neither Borrower nor any Subsidiary is in default under or
with respect to any Contractual Obligation that could either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as could
-56-
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of Borrower and its Subsidiaries is subject to no
Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof Borrower has reasonably concluded that, except as
specifically disclosed in Schedule 5.09 hereto, such Environmental Laws and
claims could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
5.10 INSURANCE. The properties of Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of
Borrower, in such amounts, after giving effect to any self-insurance compatible
with the following standards, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Borrower or the applicable Subsidiary
operates.
5.11 TAXES. Borrower and its Subsidiaries have filed all Federal, state and
other material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application
for such a letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of Borrower, nothing has occurred which
would prevent, or cause the loss of, such qualification. Borrower and each
ERISA Affiliate have made all required contributions to each Plan subject
to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to
have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
-57-
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability that could
reasonably be expected to have a Material Adverse Effect; (iii) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date, Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of
the outstanding Equity Interests in such Subsidiaries have been validly issued,
are fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens. Borrower has
no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13.
5.14 DISCLOSURE. Borrower has disclosed to Agent and Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party in connection with any Loan Document to Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
5.15 COMPLIANCE WITH LAWS. Borrower, each Subsidiary and each other Loan
Party is in compliance in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.16 MARGIN REGULATIONS; INVESTMENT COMPANY ACT. Borrower is not engaged
and will not engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. Following the application of the proceeds
of each Borrowing or drawing under each Letter of Credit, not more than 25% of
the value of the assets (either of Borrower only or of Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01
or Section 7.05 or subject to any restriction contained in any agreement or
instrument between Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section 8.01(e) will be margin
stock.
-58-
5.17 TAXPAYER IDENTIFICATION NUMBER; OTHER IDENTIFYING INFORMATION. The
true and correct U.S. taxpayer identification number of (i) Borrower is set
forth on Schedule 10.02 and (ii) each subsidiary that is a Domestic Subsidiary
and a Guarantor on the Closing Date is set forth on Schedule 5.13.
5.18 INTELLECTUAL PROPERTY; LICENSES, ETC. Borrower and its Subsidiaries
own, or possess the right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, "IP Rights") that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of Borrower, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by Borrower or
any Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 5.18, no claim or litigation regarding any of
the foregoing is pending or, to the best knowledge of Borrower, threatened,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.19 TAX SHELTER REGULATIONS. Borrower does not intend to treat the Loans
and/or Letters of Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4). In
the event Borrower determines to take any action inconsistent with such
intention, it will promptly notify Agent thereof. If Borrower so notifies Agent,
Borrower acknowledges that one or more of Lenders may treat its Committed Loans
and/or its interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary
to:
6.01 FINANCIAL STATEMENTS. Deliver to Agent a sufficient number of copies
for delivery by Agent to each Lender, of the following, in form and detail
satisfactory to Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and
accompanied by (i) a report and opinion of a Registered Public Accounting
Firm of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be
-59-
prepared in accordance with generally accepted auditing standards and
applicable Securities Laws and shall not be subject to any "going concern"
or like qualification or exception or any qualification or exception as to
the scope of such audit or with respect to the absence of any material
misstatement and (ii) an opinion of such Registered Public Accounting Firm
independently assessing Borrower's internal controls over financial
reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing
Standard ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ expressing a conclusion
that contains no statement that there is a material weakness in such
internal controls, except for such weaknesses that could not reasonably be
expected to have a Material Adverse Effect;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of
Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of Borrower's fiscal year then ended,
setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of Borrower as fairly presenting the
financial condition, results of operations, shareholders equity and cash
flows of Borrower and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event not later than the last
Business Day in February of each year, a copy of the plan and forecast
(including a projected consolidated and consolidating balance sheet, income
statement and funds flow statement) of Borrower and its Subsidiaries for
such year.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to Agent a sufficient number
of copies for delivery to each Lender, of the following, in form and detail
satisfactory to Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of the Registered Public
Accounting Firm certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status
of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of Borrower;
(c) promptly after any request by the Agent or any Lender, copies of
any detailed audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of
directors) of Borrower by independent accountants in connection with the
accounts or books of Borrower or any Subsidiary, or any audit of any of
them;
-60-
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may
file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to Agent pursuant hereto;
(e) promptly after Borrower has notified Agent of any intention by
Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form
8886 or any successor form; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as Agent or any Lender may from time
to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
Borrower posts such documents, or provides a link thereto on Borrower's website
on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Agent have access (whether a
commercial, third-party website or whether sponsored by the Agent); provided
that: (i) Borrower shall deliver paper copies of such documents to the Agent or
any Lender that requests Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Agent or such Lender
and (ii) Borrower shall notify the Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the Agent
by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance Borrower shall be
required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Agent. Except for such Compliance Certificates, the Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
Borrower hereby acknowledges that (a) the Agent and/or the Arranger will
make available to the Lenders and the Agent materials and/or information
provided by or on behalf of Borrower hereunder (collectively, "Borrower
Materials") by posting Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to Borrower or its securities) (each, a
"Public Lender"). Borrower hereby agrees that (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," Borrower shall be deemed to have authorized the Agent, the Arranger,
and the Lenders to treat Borrower Materials as not containing any material
non-public information
-61-
with respect to Borrower or their respective securities for purposes of United
States Federal and state securities laws (provided, however, that to the extent
Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.07); (y) all Borrower Materials marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated "Public Investor;"
and (z) the Agent and the Arranger shall be entitled to treat Borrower Materials
that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not designated "Public Investor." Notwithstanding the foregoing,
Borrower shall not be under any obligation to ▇▇▇▇ Borrower Materials "PUBLIC."
6.03 NOTICES. Promptly notify Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by Borrower or any Subsidiary; and
(e) of the determination by the Registered Public Accounting Firm
providing the opinion required under Section 6.01(a)(ii) (in connection
with its preparation of such opinion) or Borrower's determination at any
time of the occurrence or existence of any Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of Borrower setting forth details of the occurrence referred
to therein and stating what action Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its
-62-
organization, except (i) in a transaction permitted by Section 7.04 or 7.05, and
(ii) in the case of Subsidiaries, where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of Borrower, insurance with respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days'
prior notice to Agent of termination, lapse or cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws, and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and
business of Borrower or such Subsidiary, as the case may be; and (b)
maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent contractors
of Agent and each Lender to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the expense of
Borrower and at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to Borrower;
provided, however, that when a Default exists Agent or any Lender (or any of
their respective representatives or
-63-
independent contractors) may do any of the foregoing at the expense of Borrower
at any time during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (i) to
finance Permitted Acquisitions; (ii) for working capital, (iii) for capital
expenditures, and (iv) for other general corporate purposes not in contravention
of any Law or of any Loan Document.
6.12 GUARANTORS. Notify Agent at the time that any Person becomes a
Domestic Subsidiary, and promptly thereafter (and in any event within 30 days),
cause such Person to (a) become a Guarantor by executing and delivering Agent a
counterpart of the Guaranty or such other document as Agent shall deem
appropriate for such purpose, and (b) deliver to Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and
any renewals or extensions thereof, provided that (i) the property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased except as contemplated by Section 7.03(b), (iii) the direct or
any contingent obligor with respect thereto is not changed, and (iv) any
renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;
-64-
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.01(h) or securing appeal or other
surety bonds relating to such judgments; and
(i) liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by Borrower or such Subsidiary in the form of
cash equivalents or short-term marketable debt securities;
(b) Permitted Acquisitions;
(c) Investments of Borrower in any Guarantor which is a wholly-owned
Domestic Subsidiary and Investments of any Guarantor in Borrower or in
another Guarantor which is a wholly-owned Subsidiary;
(d) Investments of any Foreign Subsidiary in any other Foreign
Subsidiary or in Borrower or any wholly-owned Guarantor;
(e) Investments of Borrower or any Guarantor in any Foreign
Subsidiary; provided, however, that such Investments to the extent made
after the Closing Date shall not at any time exceed 50% of Consolidated Net
Worth at such time;
(f) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss; and
-65-
(g) Guarantees permitted by Section 7.03;
it being understood that the Guarantee by Borrower of obligations of
Subsidiaries that are permitted to be incurred under this Agreement shall not be
deemed Investments restricted by this Section 7.02.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.03 hereto and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder;
(c) Guarantees of Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of Borrower or any Subsidiary;
(d) obligations (contingent or otherwise) of Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed assets within the
limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall
not exceed 10% of Consolidated Net Worth at such time; and
(f) such additional unsecured Indebtedness incurred by Borrower or any
Subsidiary as would not cause the Consolidated Leverage Ratio to exceed 3.0
to 1.0 as of the date of incurrence.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into, another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) Borrower, provided that Borrower
shall be the continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that when any wholly-owned Subsidiary is merging
with another Subsidiary, the
-66-
wholly-owned Subsidiary shall be the continuing or surviving Person, and
further provided that if a Guarantor is merging with another Subsidiary,
the Guarantor shall be the continuing or surviving Person; and
(b) any Subsidiary may dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise), to Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must also be a wholly-owned
Subsidiary, and further provided that if the transferor of such assets is a
Guarantor, the transferee thereof must either be Borrower or a Guarantor;
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property, or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement
property;
(d) Dispositions of property by any Subsidiary to Borrower or to a
wholly-owned Subsidiary, provided that if the transferor of such property
is a Guarantor, the transferee thereof must either be Borrower or a
Guarantor;
(e) Dispositions permitted by Section 7.04; and
(f) additional Dispositions provided that (i) such additional
Dispositions shall not in any fiscal year exceed 15% of Borrower's
consolidated assets as of the beginning of such fiscal year, and (ii) no
Default or Event of Default shall exist immediately before or after giving
effect thereto;
provided, however, that any Disposition pursuant to clauses (a) through (f)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Subsidiary may make Restricted Payments to Borrower and to
wholly-owned Subsidiaries (and, in the case of a Restricted Payment by a
non-wholly-owned Subsidiary, to Borrower and any Subsidiary and to each
other owner of capital stock or other equity interests of such Subsidiary
on a pro rata basis based on their relative ownership interests);
-67-
(b) Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common equity interests of such Person; and
(c) Borrower may declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash, provided
that immediately after giving effect to such proposed action, no Default or
Event of Default shall exist.
To the extent Borrower shall have purchased or otherwise acquired shares of its
capital stock pursuant to this Section 7.06, nothing herein shall prohibit the
cancellation or retirement by Borrower of such shares.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by Borrower and
its Subsidiaries on the date hereof.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
Borrower or such Subsidiary as would be obtainable by Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among Borrower and any of its wholly-owned
Subsidiaries or between and among any wholly-owned Subsidiaries.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to Borrower or any Guarantor or to
otherwise transfer property to Borrower or any Guarantor, (ii) of any Subsidiary
to Guarantee the Indebtedness of Borrower or (iii) of Borrower or any Subsidiary
to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10 MARGIN REGULATIONS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System of the United States) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
7.11 CAPITAL EXPENDITURES. If a Default or a Event of Default has occurred
and is continuing, expend, or be committed to expend for Consolidated Capital
Expenditures (including, without limitation, for the acquisition of fixed
assets) during any fiscal year in excess of the amount of Consolidated Capital
Expenditures estimated to be expended in such fiscal year by Borrower in the
projections delivered to the Lenders pursuant to Section 6.01(c).
-68-
7.12 FINANCIAL COVENANTS
(a) Consolidated Leverage Ratio. Permit its Consolidated Leverage
Ratio at the end of any fiscal quarter to exceed 3.00:1.0.
The Consolidated Leverage Ratio will be calculated at the end of each
fiscal quarter for which this Agreement requires Borrower to deliver
financial statements, using the results of the twelve month period ending
with that fiscal quarter, it being understood that to the extent any
Acquisition shall have occurred during such period, the Consolidated
Leverage Ratio shall be calculated as if such Acquisition occurred at the
beginning of such period.
(b) Consolidated Interest Coverage Ratio. Permit its Consolidated
Interest Coverage Ratio at the end of any fiscal quarter to be less than
3.0:1.0. The Consolidated Interest Coverage Ratio will be calculated at the
end of each fiscal quarter for which this Agreement requires Borrower to
deliver financial statements, using the results of the twelve month period
ending with that fiscal quarter.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, and in the currency required
hereunder, any amount of principal of any Loan, or any L/C Obligation, or
(ii) within three days after the same becomes due, any interest on any Loan
or on any L/C Obligation, or any commitment or other fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10, 6.11 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days or any default or event of default
occurs under any other Loan Document; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
Borrower or any other Loan Party herein, in any other Loan Document, or in
any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
(e) Cross-Default. (i) Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration,
-69-
demand, or otherwise) in respect of any Indebtedness or Guarantee (other
than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by Borrower or such Subsidiary as a result
thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any
such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay
its debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against Borrower or any Subsidiary (i)
one or more final judgments or orders for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order,
-70-
or (B) there is a period of 10 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold Amount, or (ii) Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party or any other Person
contests in any manner the validity or enforceability of any Loan Document;
or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or
(k) Change of Control. There occurs any Change of Control with respect
to Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of Agent to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by Borrower;
(c) require that Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and Lenders all rights and remedies
available to it and Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
Agent to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of
-71-
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of Agent or any
Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among Lenders in proportion
to the respective amounts described in this clause Fourth held by them;
Fifth, to Agent, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF AGENT. Each of the Lenders hereby
irrevocably appoints Bank of America to act on its behalf as the Agent hereunder
and under the other Loan Documents and authorizes the Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely
-72-
for the benefit of the Agent and the Lenders and Borrower shall no have rights
as a third party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Agent and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not the Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent
is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as the Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or
willful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent by
Borrower or a Lender.
The Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the
-73-
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Agent.
9.04 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper
Person. The Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender, the
Agent may presume that such condition is satisfactory to such Lender unless the
Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan or the issuance of such Letter of Credit. The Agent may
consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by
or through any one or more sub agents appointed by the Agent. The Agent and any
such sub agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub agent and to the Related
Parties of the Agent and any such sub agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.
9.06 RESIGNATION OF AGENT. The Agent may at any time give notice of its
resignation to the Lenders and Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may on
behalf of the Lenders, appoint a successor Agent meeting the qualifications set
forth above; provided that if the Agent shall notify Borrower and the Lenders
that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the
retiring Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents, and (2) all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be
made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Agent, and
-74-
the retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by Borrower to a successor
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between Borrower and such successor. After the retiring Agent's
resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section 10.04 shall continue in effect for the benefit of such
retiring Agent, its sub agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring
Agent was acting as Agent.
Any resignation by Bank of America as Agent pursuant to this Section shall
also constitute its resignation as issuer of Letters of Credit and provider of
Swing Line Loans. Upon the acceptance of a successor's appointment as Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Agent, (b) the retiring
Agent as issuer of Letters of Credit and provider of Swing Line Loans shall be
discharged from all of its respective duties and obligations hereunder or under
the other Loan Documents, and (c) the successor Agent shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the retiring
Agent to effectively assume the obligations of the retiring Agent with respect
to such Letters of Credit.
9.07 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender or
any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary notwithstanding,
none of the book managers, arrangers or syndication agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Agent or a Lender.
9.09 AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative
to any Loan Party, the Agent (irrespective of whether the principal of any Loan
or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Agent shall have made
any demand on Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
-75-
Agent and their respective agents and counsel and all other amounts due the
Lenders and the Agent under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Agent and, in the event that the Agent
shall consent to the making of such payments directly to the Lenders to pay to
the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender to authorize the Agent to vote in respect of the
claim of any Lender in any such proceeding.
9.10 GUARANTY MATTERS. The Lenders irrevocably authorize the Agent, at its
option and in its discretion, to release any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder. Upon request by the Agent at any time, the
Required Lenders will confirm in writing the Agent's authority to release any
Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and Borrower or the applicable Loan Party, as the
case may be, and acknowledged by Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender; provided, however, in the sole discretion
of the Agent, only a waiver by Agent shall be required with respect to
immaterial matters or items specified in Section 4.01(a) (iii) or (iv) with
respect to which Borrower has given assurances satisfactory to Agent that
such items shall be delivered promptly following the Closing Date;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
-76-
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to Lenders (or any of them) hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (ii) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of "Default
Rate" or to waive any obligation of Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender;
(f) amend Section 1.07 or the definition of "Alternative Currency"
without the written consent of each Lender;
(g) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or
(h) release any Guarantor from the Guaranty without the written
consent of each Lender, except for (i) releases pursuant to Section 9.10,
and (ii) the release of any Guarantor neither the assets nor revenues of
which represent a material portion of the consolidated assets or revenues
of Borrower;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Agent in addition to Lenders required above, affect the
rights or duties of Agent under this Agreement or any other Loan Document, (A)
as Agent, (B) as provider of Swing Line Loans, or (C) as Letter of Credit issuer
or under any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it; (ii) Section 10.06(h) may not be amended, waived
or otherwise modified without the consent of each Granting Lender all or any
part of whose Loans are being funded by an SPC at the time of such amendment,
waiver or other modification; (including, without limitation, any reduction in
any fee, charge, expense, cost or other amount payable to Agent for its own
account under this Agreement in any such capacity); and (iii) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the respective parties thereto. Notwithstanding anything to the contrary
herein, No Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
-77-
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to Borrower or the Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such
Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on
the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the Agent hereunder may be delivered or furnished by electronic
communication (including email and Internet or intranet websites) pursuant
to procedures approved by the Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or Borrower may, in its
discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by
it, provided that approval of such procedures may be limited to particular
notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as
by the "return receipt requested" function, as available, return e-mail or
other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the website address therefor.
-78-
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its
Related Parties (collectively, the "Agent Parties") have any liability to
Borrower, any Lender or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of Borrower's or the Agent's transmission of
Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court
of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however, that in no event shall any Agent Party have any
liability to Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).
(d) Change of Address, Etc. Each of Borrower and the Agent may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to Borrower and the Agent. In
addition, each Lender agrees to notify the Agent from time to time to
ensure that the Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(e) Reliance by Agent and Lenders. The Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed
Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf
of Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Borrower shall indemnify
the Agent, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of Borrower. All
telephonic notices to and other telephonic communications with the Agent
may be recorded by the Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the Agent
to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the
-79-
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. Borrower shall pay (i) all reasonable out of
pocket expenses incurred by the Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Agent), in
connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents, or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder, and (ii) all out of pocket
expenses incurred by the Agent or any Lender (including the fees, charges
and disbursements of any counsel for the Agent or any Lender), in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out of pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(b) Indemnification by Borrower. Borrower shall indemnify the Agent
(and any sub-agent thereof), each Lender and the Agent, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by Borrower or any other Loan Party arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal
by the Agent to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by Borrower
or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
-80-
gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee's obligations
hereunder or under any other Loan Document, if Borrower or such other Loan
Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Agent (or any sub-agent
thereof) or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Agent (or any such sub-agent), the Agent or
such Related Party, as the case may be, such Lender's Pro Rata Share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against
the Agent (or any such sub-agent), or against any Related Party of any of
the foregoing acting for the Agent (or any such sub-agent) in connection
with such capacity. The obligations of the Lenders under this subsection
(c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, Borrower shall assert, and hereby waives, any
claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court
of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Agent, the replacement of any Lender, the termination of
the Aggregate Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of
Borrower is made to the Agent or any Lender, or the Agent or any Lender
exercises its right of set off, and such payment or the proceeds of such set off
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief
-81-
Law or otherwise, then (a) to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such set off
had not occurred, and (b) each Lender severally agrees to pay to the Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, in the applicable currency of such
recovery or payment. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Agent and
each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to
an SPC in accordance with the provisions of subsection (h) of this Section
(and any other attempted assignment or transfer by any party hereto shall
be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to
the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent,
the Agent and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and
(B) in any case not described in subsection (b)(i)(A) of
this Section, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then
-82-
in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless each of the Agent and,
so long as no Event of Default has occurred and is continuing,
Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned, except that this clause (ii) shall not
apply to the Agent's rights and obligations in respect of Swing Line
Loans;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:
(A) the consent of Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of
such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the consent of the Agent, in its capacity as
administrative agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an
Approved Fund with respect to such Lender;
(C) the consent of the Agent, in its capacity as issuer of
Letters of Credit (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases
the obligation of the assignee to participate in exposure under
one or more Letters of Credit (whether or not then outstanding);
and
(D) the consent of the Agent, in its capacity as provider of
Swing Line Loans (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment
shall execute and deliver to the Agent an Assignment and Assumption,
together with a processing and recordation fee of $2,500; provided,
however, that the Agent may,
-83-
in its sole discretion, elect to waive such processing and recordation
fee in the case of any assignment. The assignee, if it is not a
Lender, shall deliver to the Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made
to Borrower or any of Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall
be made to a natural person.
Subject to acceptance and recording thereof by the Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this
Section.
(c) Register. The Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at the Agent's Office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, Borrower or the Agent, sell participations to any Person
(other than a natural person or Borrower or any of Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion
of its Commitment and/or the Loans (including such Lender's participations
in L/C Obligations and/or Swing Line Loans) owing to it); provided 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 and (iii) Borrower, the Agent and the
Lenders shall
-84-
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that affects such
Participant. Subject to subsection (e) of this Section, Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 3.01 unless Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Borrower, to comply with Section 3.01(e) as
though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Agent and Borrower (an "SPC") the option
to provide all or any part of any Committed Loan that such Granting Lender
would otherwise be obligated to make
-85-
pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or
any part of such Committed Loan, the Granting Lender shall be obligated to
make such Committed Loan pursuant to the terms hereof or, if it fails to do
so, to make such payment to the Agent as is required under Section
2.12(b)(ii). Each party hereto hereby agrees that (i) neither the grant to
any SPC nor the exercise by any SPC of such option shall increase the costs
or expenses or otherwise increase or change the obligations of Borrower
under this Agreement (including its obligations under Section 3.04), (ii)
no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder. The making of a Committed
Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in
full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency,
or liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any SPC
may (i) with notice to, but without prior consent of Borrower and the Agent
and with the payment of a processing fee in the amount of $2,500, assign
all or any portion of its right to receive payment with respect to any
Committed Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Committed Loans
to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as Agent after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all
of its Commitment and Loans pursuant to subsection (b) above, Bank of
America may, upon 30 days' notice to Borrower and the Lenders, resign as
Agent. In the event of any such resignation as Agent, Borrower shall be
entitled to appoint from among the Lenders a successor Agent hereunder;
provided, however, that no failure by Borrower to appoint any such
successor shall affect the resignation of Bank of America as Agent. If Bank
of America resigns as Agent, it shall retain all the rights, powers,
privileges and duties of the Agent hereunder with respect to (A) all
Letters of Credit outstanding as of the effective date of its resignation
as Agent and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)), and
(B) Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor
Agent, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Agent and (b) the
successor Agent shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to Bank of America
-86-
to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the Agent
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates' respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to Borrower and its obligations, (g) with the consent of Borrower or
(h) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the Agent, any
Lender or any of their respective Affiliates on a nonconfidential basis from a
source other than Borrower.
For purposes of this Section, "Information" means all information received
from Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Agent or any Lender on a nonconfidential basis prior to disclosure by
Borrower or any Subsidiary, provided that, in the case of information received
from Borrower or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
10.08 RIGHT OF SET OFF. If an Event of Default shall have occurred and be
continuing, each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender, the
Agent or any such Affiliate to or for the credit or the account of Borrower or
any other Loan Party against any and all of the obligations of Borrower or any
such other Loan Party now or
-87-
hereafter existing under this Agreement or any other Loan Document to such
Lender or the Agent, irrespective of whether or not such Lender or the Agent
shall have made any demand under this Agreement or any other Loan Document and
although such obligations of Borrower or such Loan Party may be contingent or
unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of set off) that
such Lender or their respective Affiliates may have. Each Lender agrees to
notify Borrower and the Agent promptly after any such set off and application,
provided that the failure to give such notice shall not affect the validity of
such set off and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to Borrower. In determining whether the interest
contracted for, charged, or received by the Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations
hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Agent and when the Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Agent and
each Lender, regardless of any investigation made by the Agent or any Lender or
on their behalf and notwithstanding that the Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the
-88-
remaining provisions of this Agreement and the other Loan Documents shall not be
affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then Borrower may, at its
sole expense and effort, upon notice to such Lender and the Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:
(a) Borrower shall have paid to the Agent the assignment fee specified
in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling Borrower to require such assignment and delegation cease
to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
(b) SUBMISSION TO JURISDICTION. BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS SITTING IN ▇▇▇▇ COUNTY
AND OF THE UNITED STATES DISTRICT
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, AND ANY APPELLATE COURT FROM
ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH
OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN
-90-
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all
aspects of each transaction contemplated hereby, Borrower acknowledges and
agrees that: (i) the credit facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection
with any amendment, waiver or other modification hereof or of any other Loan
Document) are an arm's-length commercial transaction between Borrower and its
Affiliates, on the one hand, and the Agent and the Arranger, on the other hand,
and Borrower is capable of evaluating and understanding and understand and
accept the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Agent and the Arranger each is and has been acting solely
as a principal and is not the financial advisor, agent or fiduciary, for
Borrower or any of its Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Agent nor the Arranger has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of Borrower with
respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the Agent or the
Arranger has advised or is currently advising Borrower or its Affiliates on
other matters) and neither the Agent nor the Arranger has any obligation to
Borrower or its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Agent and the Arranger and their respective Affiliates may
be engaged in a broad range of transactions that involve interests that differ
from those of the Borrower and its Affiliates, and neither the Agent nor the
Arranger has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Agent and the Arranger
have not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the transactions contemplated hereby (including
any amendment, waiver or other modification hereof or of any other Loan
Document) and the Borrower has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate. The Borrower hereby
waives and releases, to the fullest extent permitted by law, any claims that it
may have against the Agent and the Arranger with respect to any breach or
alleged breach of agency or fiduciary duty.
10.17 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Agent, as
applicable, to identify the Borrower in accordance with the Act.
10.18 TIME OF THE ESSENCE. Time IS of the essence of the Loan Documents.
10.19 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document
in one currency into
-91-
another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Agent could purchase the first currency with
such other currency on the Business Day preceding that on which final judgment
is given. The obligation of the Borrower in respect of any such sum due from it
to the Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Agent of any sum
adjudged to be so due in the Judgment Currency, the Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Agent from the Borrower in the Agreement Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent in such currency, the Agent agrees to return
the amount of any excess to the Borrower (or to any other Person who may be
entitled thereto under applicable law).
-92-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
LITTELFUSE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
BANK OF AMERICA, N.A., as
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANK OF AMERICA, N.A., as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NATIONAL CITY BANK OF THE MIDWEST
(F/K/A NATIONAL CITY
BANK OF MICHIGAN/ILLINOIS)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE NORTHERN TRUST COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPMORGAN CHASE BANK, N.A.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
SCHEDULE 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all
or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by Agent as a weighted
average of Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be
expressed as a percentage rate per annum. Agent will, at the request of
Borrower or any Lender, deliver to Borrower or such Lender as the case may
be, a statement setting forth the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to Agent. This percentage will be certified by such Lender in its notice to
Agent as the cost (expressed as a percentage of such Lender's participation
in all Loans made from such Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Loans made
from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by Agent as follows:
(a) in relation to any Loan in Sterling:
AB+C(B-D)+E x 0.01 per cent per annum
------------------
100 - (A+C)
(b) in relation to any Loan in any currency other than Sterling:
E x 0.01 per cent per annum
--------
300
Where:
"A" is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to
the first sentence of Section 2.08(b) and, in the case of interest
(other than on overdue amounts) charged at the Default Rate, without
counting any increase in interest rate effected by the charging of the
Default Rate) payable for the relevant Interest Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of England to
Agent on interest bearing Special Deposits.
"E" is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by Agent as being the average of the
most recent rates of charge supplied by Lenders to Agent pursuant to
paragraph 7 below and expressed in pounds per L1,000,000.
1. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the FSA Supervision Manual or such other law
or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Regulations
under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Regulations but
taking into account any applicable discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Regulations.
2. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5% will be included in the formula as 5 and
not as 0.05). A negative result obtained by subtracting D from B shall be
taken as zero. The resulting figures shall be rounded to four decimal
places.
3. If requested by Agent or Borrower, each Lender with a Lending Office in the
United Kingdom or a Participating Member State shall, as soon as
practicable after publication by the Financial Services Authority, supply
to Agent and Borrower, the rate of charge payable by such Lender to the
Financial Services Authority pursuant to the Fees Regulations in respect of
the relevant financial year of the Financial Services Authority (calculated
for this purpose by such Lender as being the average of the Fee Tariffs
-2-
applicable to such Lender for that financial year) and expressed in pounds
per L1,000,000 of the Tariff Base of such Lender.
4. Each Lender shall supply any information required by Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the Lending
Office out of which it is making available its participation in the
relevant Loan; and
(b) any other information that Agent may reasonably require for such
purpose.
Each Lender shall promptly notify Agent in writing of any change to the
information provided by it pursuant to this paragraph.
5. The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Lender notifies Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Lending Office in the same
jurisdiction as such Lender's Lending Office.
6. Agent shall have no liability to any Person if such determination results
in an Additional Cost Rate which over- or under-compensates any Lender and
shall be entitled to assume that the information provided by any Lender
pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.
7. Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender pursuant to
paragraphs 3, 7 and 8 above.
8. Any determination by Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all parties hereto.
9. Agent may from time to time, after consultation with Borrower and Lenders,
determine and notify to all parties any amendments which are required to be
made to this Schedule in order to comply with any change in law, regulation
or any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any case,
any other authority which replaces all or any of its functions) and any
such determination shall, in the absence of manifest error, be conclusive
and binding on all parties hereto.
-3-
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
--------------------------------- ----------- --------------
Bank of America, N.A. $25,000,000 33.333333333%
National City Bank of the Midwest $20,000,000 26.666666667%
The Northern Trust Company $15,000,000 20.000000000%
JPMorgan Chase Bank, N.A. $15,000,000 20.000000000%
Total $75,000,000 100.000000000%
-1-
SCHEDULE 5.06
LITIGATION
NONE
-1-
SCHEDULE 5.09
ENVIRONMENTAL MATTERS
NONE
-1-
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
US Taxpayer
SUBSIDIARIES JURISDICTION OF INCORPORATION % OWNERSHIP ID #
------------ ----------------------------- ----------- -----------
Teccor Electronics, Inc. United States 100% ▇▇-▇▇▇▇▇▇▇
Teccor Delaware, Inc. United States 100% ▇▇-▇▇▇▇▇▇▇
Littelfuse GP, Inc. United States 100% ▇▇-▇▇▇▇▇▇▇
Littelfuse I, L.P. United States 100% ▇▇-▇▇▇▇▇▇▇
Teccor Electronics Mexico Holdings LLC United States 100% N/A
Zie San Investments, Inc. United States 100% ▇▇-▇▇▇▇▇▇▇
SurgX Corporation United States 100% ▇▇-▇▇▇▇▇▇▇
Littelfuse S.A. de C.V. Mexico 100%
Teccor de Mexico S. de ▇.▇. de C.V. Mexico 100%
Littelfuse do Brasil Ltda Brazil 100%
Littelfuse do Amazonia, Ltda. Brazil 100%
Littelfuse Ireland Development Co., Ltd. Ireland 100%
Littelfuse Ireland Limited Ireland 100%
Littelfuse Ireland Holding Ltd. Ireland 100%
Littelfuse U.K. Ltd. United Kingdom 100%
Littelfuse AG Switzerland 100%
Littelfuse, B.V. Netherlands 100%
REMPAT Holding B.V. Netherlands 100%
REMPAT Financial B.V. Netherlands 100%
Littelfuse Europe Holding, B.V. Netherlands 100%
Littelfuse Holding GMBH Germany 100%
Littelfuse GMBH Germany 100%
Heinrich Industrie, A.G. Germany 100%
H.I. Verwaltungs, GmbH Germany 100%
Wickmann Group GmbH Germany 100%
H.I. Immobilien Management GmbH Germany 100%
Wickmann-Werke GmbH Germany 100%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GmbH Germany 100%
Littelfuse Beteiligungs, GmbH Germany 100%
Littelfuse Far East Pte Ltd. Singapore 100%
Littelfuse HK Limited Hong Kong 100%
Wickmann Asia Ltd. Hong Kong 100%
Suzhou Littelfuse OVS Ltd. Peoples Republic of China 100%
Dongguan Wickmann Electrical Products Co. Peoples Republic of China 100%
Concord Semiconductor (Wuxi) Company Peoples Republic of China 100%
Littelfuse KK Japan 100%
Littelfuse Triad Inc. South Korea 99%
Littelfuse Phils Inc. Philippines 100%
Littelfuse S&L, Inc. Taiwan 95%
Littelfuse Concord Semiconductor, Inc. Taiwan 100%
Cameo Device Corporation Taiwan 100%
Concord Holding (BVI) Co. Ltd. British Virgin Islands 100%
-1-
Part (b). Other Equity Investments.
ENTITY JURISDICTION OF INCORPORATION % OWNERSHIP
------ ----------------------------- -----------
Polytronics Technology Corporation Taiwan 8.94%
Motherson ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ltd. India 43.85%
-2-
SCHEDULE 5.18
INTELLECTUAL PROPERTY MATTERS
NONE
-1-
SCHEDULE 7.01
EXISTING LIENS
Liens securing indebtedness set forth in Schedule 7.03.
-1-
SCHEDULE 7.03
EXISTING INDEBTEDNESS
Notes Payable
Littelfuse Inc.
Due to: Bank of America and other
Lenders
Original Principal Amount: $50,000,000
Outstanding Principal Amount at July 21, 2006:
Interest Rate: Variable depending on type of
loan
Payment Terms: Open revolver line of credit,
no revolver principal due until
line matures on August 26, 2006
Final Payment Date: August 26, 2006
Littelfuse KK
Due to: Bank of America
Original Principal Amount: JPY 900,000 (Japanese Yen)
Outstanding Principal Amount at July 21, 2006: JPY 450,000 (Japanese Yen)
Interest Rate: 90 day TIBOR + 0.85%
Final Payment Date: August 26, 2006
Mortgages:
Littelfuse Concord Semiconductor
Due to: Taiwan Business Bank
Original Principal Amount: NTD 37.1M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 7.5M (New Taiwan Dollar)
Interest Rate: 2.26%
Final Payment Date: March 10, 2008
Secured Property: Land and Building
Due to: Taiwan Business Bank
Original Principal Amount: NTD 2.7M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 1.4M (New Taiwan Dollar)
Interest Rate: 2.26%
Final Payment Date: November 10, 2008
Secured Property: Land and Building
Due to: Taiwan Business Bank
Original Principal Amount: NTD 13.6M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 8.8M (New Taiwan Dollar)
Interest Rate: 2.26%
Final Payment Date: July 15, 2009
Secured Property: Land and Building
-1-
Due to: Taiwan Business Bank
Original Principal Amount: NTD 29.4M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 20.6M (New Taiwan Dollar)
Interest Rate: 2.26%
Final Payment Date: October 15, 2009
Secured Property: Machinery
Due to: Taiwan Business Bank
Original Principal Amount: NTD 15.8M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 15.0M (New Taiwan Dollar)
Interest Rate: 2.26%
Final Payment Date: January 15, 2011
Secured Property: Land and Building
Due to: Taiwan Business Bank
Original Principal Amount: NTD 30.0M (New Taiwan Dollar)
Outstanding Principal Amount at July 21, 2006: NTD 30.0M (New Taiwan Dollar)
Interest Rate: 2.27%
Final Payment Date: August 11, 2006
Secured Property: Land and Building
-2-
SCHEDULE 10.02
ADDRESSES FOR NOTICES
LITTELFUSE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasury Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
U.S. Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
BANK OF AMERICA
Address for Payments and Requests for Loans
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Acct.#: ▇▇▇-▇▇▇▇-▇▇▇
Ref: Littelfuse, Inc., Attn: Credit Services
ABA: ▇▇▇-▇▇▇-▇▇▇
Account No. (for Euro): ▇▇▇▇▇▇▇▇
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Sterling): 65280027
Ref: Littelfuse, Inc., Attn: Credit Services
London Sort Code: 16-50-50
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Yen): 606490681046
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Swiss Franc): 601490661012
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
-1-
Address for Receiving Letter of Credit Applications and related correspondence
Standby Letters of Credit:
Bank of America, N.A.
Trade Operations - Los Angeles
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Mail Code: CA9-705-07-05
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Tai ▇▇▇ ▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇_▇▇▇.▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Commercial Letters of Credit
Bank of America, N.A.
Trade Operations -Charlotte
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Mail Code: NC1-005-21-01
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and Operations Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices as Agent:
Bank of America, N.A.
Agency Management
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: IL1-231-08-30
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Lov
Agency Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices as a Lender:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: IL1-231-06-40
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
-2-
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE NORTHERN TRUST COMPANY
Requests for Credit Extensions:
The Northern Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: C-4S
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Loan Operations Representative
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 312-630-1566
Account No. 5186401000
Ref: Littelfuse
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: B-2
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Second Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇@▇▇▇▇.▇▇▇
NATIONAL CITY BANK OF THE MIDWEST
Requests for Credit Extensions:
National City Bank of the Midwest
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Operations Specialist
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇▇▇ @▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Account No. 151804-▇▇▇▇▇▇▇
Ref: Littelfuse, Inc.
ABA# ▇▇▇▇▇▇▇▇▇
-3-
Notices (other than Requests for Credit Extensions):
National City Bank of the Midwest
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ Pass
Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 312-384-4666
Electronic Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-4-
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of July 21,
2006 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among Littelfuse, Inc. ("Borrower"),
Lenders from time to time party thereto, and Bank of America, N.A., as Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation of
Committed Loans
1. On __________________________________________ (a Business Day).
2. In the amount of $____________________________.
3. Comprised of _______________________________.
[Type of Committed Loan requested]
4. In the following currency: _____________________.
5. For Eurocurrency Rate Loans: with an Interest Period of ___ months.
[The Committed Borrowing requested herein complies with the proviso to the
first sentence of Section 2.01 of the Credit Agreement.]
LITTELFUSE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of July 21,
2006 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among Littelfuse, Inc., a Delaware
corporation ("Borrower"), Lenders from time to time party thereto, and Bank of
America, N.A., as Agent.
The undersigned hereby requests a Swing Line Loan:
1. On __________________________________________ (a Business Day).
2. In the amount of $____________________________.
The Swing Line Borrowing requested herein complies with the requirements of
the proviso to the first sentence of Section 2.04(a) of the Credit Agreement.
LITTELFUSE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF NOTE
$______________ July __, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to pay to
the order of _____________________________ or registered assigns ("Lender"), in
accordance with the provisions of the Agreement (as hereinafter defined) the
principal amount of each Loan from time to time made by Lender to Borrower under
that certain Credit Agreement, dated as of July 21, 2006 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among Borrower, Lenders from time to time party thereto, and Bank of America,
N.A., as Agent.
Borrower promises to pay interest on the unpaid principal amount of each
Loan from the date of such Loan until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement. All payments
of principal and interest shall be made to Agent for the account of Lender in
the currency in which such Committed Loan was denominated and in Same Day Funds
at Agent's Office for such currency. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty, if any. Upon the occurrence and continuation of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Loans made by Lender shall be evidenced by one
or more loan accounts or records maintained by Lender in the ordinary course of
business. Lender may also attach schedules to this Note and endorse thereon the
date, amount, currency and maturity of its Loans and payments with respect
thereto.
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.
LITTELFUSE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1
Form of Committed Loan Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
CURRENCY AND END OF PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN INTEREST INTEREST PAID BALANCE THIS NOTATION MADE
DATE MADE MADE PERIOD THIS DATE DATE BY
------ ------------ -------------- -------- ------------- ------------ -------------
C-2
Form of Committed Loan Note
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ______________,
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of July 21,
2006 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Littelfuse, Inc. ("Borrower"), Lenders from
time to time party thereto, and Bank of America, N.A., as Agent.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the __________________ of Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to Agent on behalf of
Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
Borrower ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of Borrower during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period Borrower performed and observed all its
Obligations under the Loan Documents, and
[SELECT ONE:]
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
D-1
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of each such Default or Event of Default and its
nature and status:]
4. The representations and warranties of the Borrower contained in Article
V of the Agreement, or which are contained in any document furnished at any time
under or in connection with the Loan Documents, are true and correct on and as
of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a), (b) and (c) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_______________, ____________.
LITTELFUSE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
I. SECTION 7.12(A) -CONSOLIDATED LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $____________
B. Consolidated EBITDA for four consecutive fiscal quarters ending on $____________
above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $____________
2. Consolidated Interest Charges for Subject Period: $____________
3. Provision for income taxes for Subject Period: $____________
4. Depreciation expenses for Subject Period: $____________
5. Amortization expenses for Subject Period: $____________
6. Plus Non-cash reductions of Consolidated Net Income for Subject $____________
Period:
7. Minus Non-cash additions to Consolidated Net Income for Subject $____________
Period:
8. Consolidated EBITDA (Lines I.B.1 + 2 + 3 + 4 + $____________
5 + 6 -7):
C. Ratio (Line I.A. / Line I.B8.): _________ to 1.0
Maximum Required Consolidated 3.00:1.0
Leverage Ratio:
II. SECTION 7.12(B) - CONSOLIDATED INTEREST COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive fiscal quarters ending on $____________
above date ("Subject Period")(Line I.B.8):
B. Consolidated Interest Charges for Subject Period: $____________
C. Ratio (Line II.A / Line II.B) _________ to 1.0
Minimum Required: 3.00 to 1.0
D-3
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[the][each](1) Assignor identified in item 1 below ([the][each, an] "Assignor")
and [the][each](2) Assignee identified in item 2 below ([the][each, an]
"Assignee").(3) [It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees] hereunder are several and not joint.](4)
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells
and assigns to [the Assignee][the respective Assignees], and [the][each]
Assignee hereby irrevocably purchases and assumes from [the Assignor][the
respective Assignors], subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor's][the
respective Assignors'] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including, without limitation,
the Letters of Credit and the Swing Line Loans included in such facilities(5))
and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities
as Lenders)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i)
and (ii) above being referred to herein collectively as [the][an] "Assigned
Interest"). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][any] Assignor.
----------
(1) For bracketed language here and elsewhere in this form relating to the
Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
(2) For bracketed language here and elsewhere in this form relating to the
Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
(3) Select as appropriate.
(4) Include bracketed language if there are either multiple Assignors or
multiple Assignees.
(5) Include all applicable subfacilities.
E - 1
Form of Assignment and Assumption
1. Assignor[s]: ______________________________
______________________________
2. Assignee[s]: ______________________________
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]]
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of July 21, 2006, among
Littelfuse, Inc., the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender
6. Assigned Interest[s]:
Aggregate
Amount of Amount of Percentage
Facility Commitment Commitment Assigned of CUSIP
Assignor[s](6) Assignee[s](7) Assigned(8) for all Lenders(9) Assigned Commitment(10) Number
-------------- -------------- ----------- ------------------ -------------- -------------- ------
$ $ %
_________ _____________ _____________ ____________
$ $ %
_________ _____________ _____________ ____________
$ $ %
_________ _____________ _____________ ____________
[7. TRADE DATE: __________________](11)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
----------
(6) List each Assignor, as appropriate.
(7) List each Assignee, as appropriate.
(8) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment", etc.).
(9) Amounts in this column and in the column immediately to the right to be
adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date.
(10) Set forth, to at least 9 decimals, as a percentage of the Commitment of all
Lenders thereunder.
(11) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
E - 2
Form of Assignment and Assumption
By:
-------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------------
Title:
[Consented to and] Accepted:
BANK OF AMERICA, N.A., as
Agent
By:
-------------------------------
Title:
[Consented to:](12)
[BORROWER]
By:
-------------------------------
Title:
----------
(12) To be added only if the consent of Borrower and/or other parties (e.g. the
provider of Swing Line Loans, the issuer of Letters of Credit) is required
by the terms of the Credit Agreement.
E - 3
Form of Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [THE][EACH] Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of [THE][[THE RELEVANT] Assigned Interest,
(ii) [THE][SUCH] Assigned Interest is free and clear of any lien, encumbrance or
other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee. [THE][EACH] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all the requirements to be an assignee under Section 10.06(b)(iii), (v)
and (vi) of the Credit Agreement (subject to such consents, if any, as may be
required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [THE][THE RELEVANT]
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is
sophisticated with respect to decisions to acquire assets of the type
represented by [THE][SUCH] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [THE][SUCH] Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a
copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 6.01 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase [THE][SUCH]
Assigned Interest, (vi) it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase
[THE][SUCH] Assigned Interest, and (vii) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by [THE][SUCH] Assignee;
and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its
E-4
Annex 1 to Assignment and Assumption Agreement
own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of [THE][EACH] Assigned Interest (including
payments of principal, interest, fees and other amounts) to [THE][THE RELEVANT]
Assignor for amounts which have accrued to but excluding the Effective Date and
to [THE][THE RELEVANT] Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Illinois.
E-5
Annex 1 to Assignment and Assumption Agreement
EXHIBIT F
FORM OF GUARANTY
GUARANTY dated as of July 21 2006 made by the Persons listed on the
signature pages hereof under the caption "Original Guarantors" and the
Additional Guarantors (as defined in Section 8(b)) (such Persons so listed and
the Additional Guarantors being, collectively, the "Guarantors" and,
individually, each a "Guarantor") in favor of the Lenders (as defined in the
Credit Agreement referred to below).
PRELIMINARY STATEMENT. Littelfuse, Inc., a Delaware corporation (the
"Borrower"), is party to a Credit Agreement dated as of July 21, 2006 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with certain
Lenders party thereto, and Bank of America, N.A., as Agent for such Lenders.
Each Guarantor will derive substantial direct and indirect benefits from the
transactions contemplated by the Credit Agreement. It is a condition precedent
to the making of Loans or issuance of Letters of Credit by the Lenders or the
Agent under the Credit Agreement from time to time that each Guarantor shall
have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lenders and the Agent to make Loans and/or issue Letters of Credit under the
Credit Agreement from time to time, each Guarantor, jointly and severally with
each other Guarantor, hereby agrees as follows:
Section 1. Guaranty, Limitation of Liability
(a) Each Guarantor hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, reimbursement obligations, interest, premiums, fees,
penalties, indemnities, contract causes of action, costs, expenses or otherwise
and all Obligations of each other Loan Party now or hereafter existing in
respect of overdraft facilities, cash management services or repurchase
agreements (all such Obligations being collectively called the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by Agent or any other Lender
in enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any other Loan Party to any Lender under or in respect of the
Loan Documents but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
F-1
FORM OF GUARANTY
(b) Each Guarantor, and by its acceptance of this Guaranty, Agent and
each other Lender, hereby confirms that it is the intention of all such Persons
that this Guaranty and the Obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law
(as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, Agent, the other Lenders and
the Guarantors hereby irrevocably agree that the Obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Guaranty not constituting
a fraudulent transfer or conveyance. For purposes hereof, "Bankruptcy Law" means
any proceeding of the type referred to in Section 8.01(f) of the Credit
Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law
for the relief of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Lender under this
Guaranty or any other guaranty, such Guarantor will contribute, to the maximum
extent permitted by law, such amounts to each other Guarantor and each other
guarantor so as to maximize the aggregate amount paid to the Lenders under or in
respect of the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender with
respect thereto. The Obligations of each Guarantor under or in respect of this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under or in respect of the Loan Documents, and a
separate action or actions may be brought and prosecuted against each Guarantor
to enforce this Guaranty, irrespective of whether any action is brought against
Borrower or any other Loan Party or whether Borrower or any other Loan Party is
joined in any such action or actions. The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
each Guarantor hereby irrevocably waives (to the full extent permitted by law),
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other Obligations
of any other Loan Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any of
its Subsidiaries or otherwise;
(c) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
F-2
(d) any failure of any Lender to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Lender (each Guarantor waiving any duty on the part of
the Lenders to disclose such information);
(e) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement (as hereinafter defined) or any other guaranty
or agreement or the release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations; or
(f) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by any
Lender that might otherwise constitute a defense available to, or a discharge
of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or any other Person upon
the insolvency, bankruptcy or reorganization of Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments.
(a) Each Guarantor hereby unconditionally and irrevocably waives, to
the full extent permitted by law, promptness, diligence, notice of acceptance,
presentment, demand for performance, notice of nonperformance, default,
acceleration, protest or dishonor and any other notice with respect to any of
the Guaranteed Obligations and this Guaranty and any requirement that any Lender
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Loan Party or any other Person.
(b) Each Guarantor hereby unconditionally and irrevocably waives, to
the full extent permitted by law, any right to revoke this Guaranty and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives, to
the full extent permitted by law, (i) any defense arising by reason of any claim
or defense based upon an election of remedies by any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or other rights of such Guarantor to proceed against any of the other
Loan Parties, any other guarantor or any other Person and (ii) any defense based
on any right of set-off or counterclaim against or in respect of the Obligations
of such Guarantor hereunder.
(d) Each Guarantor acknowledges that Agent may, without notice to or
demand upon such Guarantor and without affecting the liability of such Guarantor
under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each
Guarantor hereby
F-3
waives any defense to the recovery by Agent and the other Lenders against such
Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives, to
the fullest extent permitted by law, any duty on the part of any Lender to
disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any other Loan Party or any of its Subsidiaries now or hereafter
known by such Lender.
(f) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 2 and this Section 3
are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire
against Borrower, any other Loan Party or any other insider guarantor that arise
from the existence, payment, performance or enforcement of such Guarantor's
Obligations under or in respect of this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Lender against Borrower, any other Loan Party or any
other insider guarantor, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from Borrower, any other Loan Party or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash,
all Letters of Credit shall have expired or been terminated and the Commitments
shall have expired or been terminated. If any amount shall be paid to any
Guarantor in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Guaranty, (b) the Maturity Date and (c)
the latest date of expiration or termination of all Letters of Credit, such
amount shall be received and held in trust for the benefit of the Lenders, shall
be segregated from other property and funds of such Guarantor and shall
forthwith be paid or delivered to Agent in the same form as so received (with
any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents. If (i) any Guarantor shall make payment to any Lender of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash, (iii) the Maturity Date shall have occurred and (iv) all Letters of Credit
shall have expired or been terminated, the Lenders will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
F-4
Section 5. Payments Free and Clear of Taxes, Etc.
(a) Any and all payments made by any Guarantor under or in respect of
this Guaranty or any other Loan Document shall be made, in accordance with
Section 2.11 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable under or in
respect of this Guaranty or any other Loan Document to any Lender, (i) the sum
payable by such Guarantor shall be increased as may be necessary so that after
such Guarantor and Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 5), such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make all such deductions and
(iii) such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future
Other Taxes that arise from any payment made by or on behalf of such Guarantor
under or in respect of this Guaranty or any other Loan Document or from the
execution, delivery or registration of, performance under, or otherwise with
respect to, this Guaranty and the other Loan Documents.
(c) Each Guarantor will indemnify each Lender for and hold it harmless
against the full amount of Taxes and Other Taxes (but not Excluded Taxes), and
for the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 5, imposed on or paid by such Lender and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by or on
behalf of any Guarantor, such Guarantor shall furnish to Agent, at its address
referred to in Section 9, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder by or on behalf of
any Guarantor through an account or branch outside the United States or by or on
behalf of such Guarantor by a payor that is not a United States person, if such
Guarantor determines that no Taxes are payable in respect thereof, such
Guarantor shall furnish or shall cause such payor to furnish, to Agent, at such
address, an opinion of counsel acceptable to Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 5,
the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
Section 6. Representations and Warranties. Each Guarantor hereby makes each
representation and warranty made in the Loan Documents by Borrower with respect
to such Guarantor and each Guarantor hereby further represents and warrants as
follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
F-5
(b) Such Guarantor has, independently and without reliance upon any
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Guaranty and each
other Loan Document to which it is or is to be a party, and such Guarantor has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing basis
will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan
Party.
Section 7. Covenants. Each Guarantor covenants and agrees that, so long as any
part of the Guaranteed Obligations shall remain unpaid, any Letter of Credit
shall be outstanding, or any Lender shall have any Commitment shall be in
effect, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set forth in the Loan Documents on its or their part to be performed or observed
or that Borrower has agreed to cause such Guarantor or such Subsidiaries to
perform or observe.
Section 8. Amendments, Guaranty Supplements, Etc.
(a) No amendment or waiver of any provision of this Guaranty and no
consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by Agent and the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender that is, at such time, a
Defaulting Lender), (a) reduce or limit the obligations of any Guarantor
hereunder, release any Guarantor hereunder or otherwise limit any Guarantor's
liability with respect to the Obligations owing to the Lenders under or in
respect of the Loan Documents, (b) postpone any date fixed for payment hereunder
or (c) change the number of Lenders or the percentage of the Aggregate
Commitments or of the unpaid principal amount of the Loans and L/C Obligations
which is required for the Lenders or any of them to take any action hereunder.
(b) Upon the execution and delivery by any Person of a guaranty
supplement in substantially the form of Exhibit A hereto (each, a "Guaranty
Supplement"), (i) such Person shall be referred to as an "Additional Guarantor"
and shall become and be a Guarantor hereunder, and each reference in this
Guaranty to a "Guarantor" shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to an "Original
Guarantor" shall also mean and be a reference to such Additional Guarantor, and
(ii) each reference herein to "this Guaranty", "hereunder", "hereof" or words of
like import referring to this Guaranty, and each reference in any other Loan
Document to the "Guaranty", "thereunder", "thereof" or words of like import
referring to this Guaranty, shall mean and be a reference to this Guaranty as
supplemented by such Guaranty Supplement.
Section 9. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and mailed, telecopied or delivered to it, if to
any Guarantor, addressed to it in care of Borrower at Borrower's address
specified in Section 10.02 of the Credit Agreement, if to Agent, at its address
specified in Section 10.02 of the Credit Agreement, if to
F-6
any other Lender, to the address specified in its Administrative Questionnaire
or, as to any party, at such other address as shall be designated by such party
in a written notice to each other party. Notices sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Delivery by telecopier of
an executed counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty or of any Guaranty Supplement to be executed and
delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
Section 10. No Waiver, Remedies. No failure on the part of any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during the continuance
of any Event of Default and (b) the making of the request or the granting of the
consent specified by Section 8.02 of the Credit Agreement to authorize Agent to
declare the Obligations due and payable pursuant to the provisions of said
Section 8.02, Agent and each Lender and each of their respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by Agent, such Lender or such Affiliate to or for the credit or
the account of any Guarantor against any and all of the Obligations of such
Guarantor now or hereafter existing under the Loan Documents, irrespective of
whether Agent or such Lender shall have made any demand under this Guaranty or
any other Loan Document and although such Obligations may be unmatured. Agent
and each Lender agrees promptly to notify such Guarantor after any such set-off
and application; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of Agent and
each Lender and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that Agent, such Lender and their respective Affiliates may have.
Section 12. Indemnification.
(a) Without limitation on any other Obligations of any Guarantor or
remedies of the Lenders under this Guaranty, each Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless
each Lender and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party in connection with or as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of any
Loan Party enforceable against such Loan Party in accordance with their terms.
F-7
(b) Each Guarantor hereby also agrees that none of the Indemnified
Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to any of the Guarantors or any of their respective Affiliates or
any of their respective officers, directors, employees, agents and advisors, and
each Guarantor hereby agrees not to assert any claim against any Indemnified
Party on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Commitments, the
actual or proposed use of the proceeds of the Loans or the Letters of Credit,
the Loan Documents or any of the transactions contemplated by the Loan
Documents.
(c) Without prejudice to the survival of any of the other agreements
of any Guarantor under this Guaranty or any of the other Loan Documents, the
agreements and obligations of each Guarantor contained in Section 1(a) (with
respect to enforcement expenses), the last sentence of Section 2, Section 5 and
this Section 12 shall survive the payment in full of the Guaranteed Obligations
and all of the other amounts payable under this Guaranty.
Section 13. Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to such Guarantor by each other Loan
Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of a, proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless Agent
otherwise agrees, no Guarantor shall demand, accept or take any action to
collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that
the Lenders shall be entitled to receive payment in full in cash of all
Guaranteed Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("Post Petition Interest"))
before such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if Agent
so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Lenders and deliver such payments to
Agent on account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
F-8
(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and to apply any amounts
received thereon to the Guaranteed Obligations (including any and all Post
Petition Interest), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to Agent for application to the
Guaranteed Obligations (including any and all Post Petition Interest).
Section 14. Continuing Guaranty, Assignments under the Credit Agreement. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the Maturity
Date and (iii) the latest date of expiration or termination of all Letters of
Credit, (b) be binding upon the Guarantor, its successors and assigns and (c)
inure to the benefit of and be enforceable by the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitments, the Loans
owing to it and the Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as and to the
extent provided in Section 10.07 of the Credit Agreement. No Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
Section 15. Execution in Counterparts. This Guaranty and each amendment, waiver
and consent with respect hereto may be executed in any number of counterparts
and by different parties thereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by telecopier shall be effective as delivery of
an original executed counterpart of this Guaranty.
Section 16. Severability. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining provisions of Guaranty shall not be affected or impaired thereby.
The invalidity of a provision in a particular jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 17. Governing Law, Jurisdiction, Waiver of Jury Trial, Etc.
(a) This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Illinois State
court or federal court of the United States of America sitting in Chicago, and
any appellate court from any
F-9
thereof, in any action or proceeding arising out of or relating to this Guaranty
or any of the other Loan Documents to which it is or is to be a party, or for
recognition or enforcement of any judgment, and each Guarantor hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such Illinois State
court or, to the extent permitted by law, in such federal court. Each Guarantor
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty or any other Loan
Document shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty or any other Loan Document in the
courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party in any Illinois State or federal court. Each
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
(d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS
OR THE ACTIONS OF ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
Section 18. Foreign Currency. If any claim arising under or related to this
Guaranty is reduced to judgment denominated in a currency (the "Judgment
Currency") other than the currencies in which the Guaranteed Obligations are
denominated (collectively the "Obligations Currency"), the judgment shall be for
the equivalent in the Judgment Currency of the amount of the claim denominated
in the Obligations Currency included in the judgment, determined as of the date
of judgment. The equivalent of any Obligations Currency amount in any Judgment
Currency shall be calculated at the spot rate for the purchase of the
Obligations Currency with the Judgment Currency quoted by the Agent in the place
of the Agent's choice at or about 8:00 a.m. on the date for determination
specified above. The Guarantor shall indemnify the Agent and each Lender and
hold the Agent and each Lender harmless from and against all loss or damage
resulting from any change in exchange rates between the date any claim is
reduced to judgment and the date of payment thereof by the Guarantor. If the
Agent so notifies the Guarantor in writing, at the Agents sole and absolute
discretion, payments under this Guaranty shall be the U.S. Dollar equivalent of
the Guaranteed Obligations or any portion thereof, determined as of the date
payment is made.
F-10
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
TECCOR ELECTRONICS, INC.,
a Texas corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
TECCOR DELAWARE, INC.,
a Delaware corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
LITTELFUSE I, L.P.,
a Delaware limited partnership
By: Littelfuse GP, Inc., its
general partner
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
TECCOR ELECTRONICS MEXICO HOLDINGS LLC,
a Delaware limited liability company
By: Littelfuse I L.P., it sole member
By: Littelfuse GP, Inc., its
general partner
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
LITTELFUSE GP, INC., a Delaware
corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
ZIE SAN INVESTMENTS, INC.,
a Georgia corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
SURGX CORPORATION, a Delaware
corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer
FORM OF GUARANTY SUPPLEMENT
__________ __, ____
Bank of America, N.A., as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Credit Agreement dated as of July 21, 2006 among
Littelfuse, Inc., a Delaware corporation
(the "Borrower"), the Lenders
party to the Credit Agreement, Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Guaranty referred to therein (such Guaranty, as in effect on the date hereof and
as it may hereafter be amended, supplemented or otherwise modified from time to
time, together with this Guaranty Supplement, being the "Guaranty"). The
capitalized terms defined in the Guaranty or in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability.
(a) The undersigned hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation., any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premium, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by Agent or any other Lender
in enforcing any rights under this Guaranty Supplement, the Guaranty or any
other Loan Document. Without limiting the generality of the foregoing, the
undersigned's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Lender
under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) The undersigned, and by its acceptance of this Guaranty
Supplement, Agent and each other Lender, hereby confirms that it is the
intention of all such Persons that this Guaranty Supplement, the Guaranty and
the Obligations of the undersigned hereunder and thereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to this Guaranty
Supplement, the Guaranty and the Obligations of the undersigned hereunder and
thereunder. To effectuate the foregoing intention, Agent, the other Lenders and
the undersigned hereby irrevocably agree that the
F-Supp-1
Obligations of the undersigned under this Guaranty Supplement and the Guaranty
at any time shall be limited to the maximum amount as will result in the
Obligations of the undersigned under this Guaranty Supplement and the Guaranty
not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Lender under this
Guaranty Supplement, the Guaranty or any other guaranty, the undersigned will
contribute, to the maximum extent permitted by applicable law, such amounts to
each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Lenders under or in respect of the Loan Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of
the date first above written, to be bound as a Guarantor by all of the terms and
conditions of the Guaranty to the same extent as each of the other Guarantors
thereunder. The undersigned further agrees, as of the date first above written,
that each reference in the Guaranty to an "Additional Guarantor" or a
"Guarantor" shall also mean and be a reference to the undersigned, and each
reference in any other Loan Document to an "Original Guarantor" or a "Loan
Party" shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby makes each
representation and warranty set forth in Section 6 of the Guaranty to the same
extent as each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a
signature page to this Guaranty Supplement by telecopier shall be effective as
delivery of an original executed counterpart of this Guaranty Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Guaranty Supplement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
(b) The undersigned hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any Illinois
State court or any federal court of the United States of America sitting in an
Illinois City, and any appellate court from any y thereof, in any action or
proceeding arising out of or relating to this Guaranty Supplement, the Guaranty
or any of the other Loan Documents to which it is or is to be a party, or for
recognition or enforcement of any judgment, and the undersigned hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such Illinois State
court or, to the extent permitted by law, in such federal court. The undersigned
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty Supplement or the
Guaranty or any other Loan Document shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it is or is
to be a party in the courts of any other jurisdiction.
F-Supp-2
(c) The undersigned irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty Supplement, the Guaranty or any of
the other Loan Documents to which it is or is to be a party in any Illinois
State or federal court. The undersigned hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR
THE ACTIONS OF ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By:
------------------------------------
Title:
---------------------------------
F-Supp-3
EXHIBIT G
FORM OF OPINION
July __, 2006
To Bank of America, N.A.,
as Agent
and Lenders
(as defined in the Loan Documents referred
to below)
Ladies and Gentlemen:
We have acted as counsel for Littelfuse, Inc., a Delaware corporation
("Littelfuse") and for its Subsidiaries listed on Annex I hereto (together with
Littelfuse, the "Loan Parties," and individually a "Loan Party"), in connection
with the negotiation, execution and delivery of the Credit Agreement ("Credit
Agreement") dated as of July 21, 2006, among Littelfuse, various lenders
("Lenders"), and Bank of America, N.A. ("Bank of America") as administrative
agent ("Agent"). Capitalized terms used herein without definition have the
meanings set forth in the Credit Agreement.
In connection with this opinion letter, we have examined executed copies of
the following documents each dated as of July 21, 2006 (the "Loan Documents"),
each in favor of Agent for the benefit of Lenders, and each together with all
schedules and exhibits thereto:
(i) the Credit Agreement;
(ii) Note(s); and
(iii) the Guaranty;
We have also reviewed the following:
(a) the certificate of incorporation, articles of incorporation,
limited partnership agreement or articles of formation, as the case
may be, of each Loan Party, and the by-laws of each corporate Loan
Party (collectively, the "Organization Documents"), and (b)
resolutions adopted on or as of July __, 2006, by the board of
directors, the general partner or the member, as the case may be, of
each Loan Party;
(b) As to each Loan Party, a certificate of the secretary of
state dated as of a recent date of the state of its incorporation or
formation listed opposite such Loan Party's name on Annex I attesting
to the continued corporate existence and good standing of such Loan
Party in that state; and
(c) the certificates of each Loan Party delivered in response to
Section 4.01(a) of the Credit Agreement (the "Certificates").
G-1
Form of Opinion
In addition, we have made such other investigations as we have deemed
necessary to enable us to express the opinions hereinafter set forth. In the
course of this examination we have assumed the genuineness of all signatures of
persons signing the Loan Documents on behalf of parties thereto other than the
Loan Parties, the authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all documents submitted to us
as certified, conformed or photostatic copies, and the due authorization,
execution and delivery of the Loan Documents by the parties thereto other than
the Loan Parties.
Based upon the foregoing, and further subject to the assumptions,
qualifications and exceptions set forth below, we hereby advise you that in our
opinion:
1. Each Loan Party is a [corporation,] [partnership] [limited liability
company] validly existing and in good standing under the laws of the state
listed opposite such Loan Party's name on Annex I hereto.
2. Each Loan Party has the full [corporate] power and authority and legal
right to make, enter into and perform the Loan Documents to which it is a party,
and has taken all necessary action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party.
3. No authorization, consent, approval, license, exemption of, notice to,
filing or registration with, or other action by or in respect of any
Governmental Authority or any other Person is required for the due execution,
delivery or performance by, or enforcement against, the Loan Parties of the Loan
Documents to which they are parties.
4. The Loan Documents have been duly executed and delivered on behalf of
each Loan Party. Each Loan Document constitutes the legal, valid and binding
obligations of each Loan Party thereto, enforceable against such Loan Party in
accordance with its respective terms.
5. The execution, delivery and performance by each Loan Party of the Loan
Documents to which it is a party and compliance with the provisions thereof do
not and will not (a) violate or conflict with or result in a breach of, any
provision of or require any consent under the Organization Documents of such
Loan Party, (b) violate or conflict with any federal law of the United States or
Illinois law, (c) to our knowledge, violate or contravene any judgment, decree,
injunction, writ or order of any court, or any arbitrator or other Governmental
Authority having jurisdiction over such Loan Party or such Loan Party's
properties or by which such Loan Party may be bound, (d) violate or conflict
with, or constitute a default under any of the Other Documents and Court Orders,
or (e) result in, or require, the creation or imposition of any Lien on any of
the properties of such Loan Party or any of its Subsidiaries.
6. We are unaware of any action, litigation or proceeding that is pending
or, after due and diligent investigation, threatened by or against any of the
Loan Parties or against their respective properties or revenues before any
court, arbitrator or other Governmental Authority which action, litigation or
proceeding seeks to enjoin the transactions contemplated by the Loan Documents.
G-2
Form of Opinion
7. The extension of credit under the Credit Agreement does not violate the
provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
8. No Loan Party or any Subsidiary thereof is or is required to be
registered as an "investment company" under the Investment Company Act of 1940.
* * *
Our opinions set forth in paragraph 4 above regarding enforceability are
subject to the qualification that the enforceability of the Loan Documents may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
equity principles.
We express no opinion herein concerning any law other than the law of the
State of Illinois, the general corporation law of the states listed on Annex I
hereto and the federal law of the United States. By rendering the opinions set
forth in paragraph 2 and we do not intend to indicate that we are experts on, or
qualified to render opinions on, the laws of any jurisdiction other than
Illinois law and the federal law of the United States.
This opinion letter has been furnished to you at the request of Littelfuse
pursuant to the Credit Agreement for your use in connection with the Credit
Agreement, and may not be relied upon by you or any other Person for any other
purpose without our consent, except that (i) this opinion may be disclosed to
(a) bank regulatory and other Governmental Authority having jurisdiction over
you requesting (or requiring) such disclosure and (b) prospective assignees and
participants and any successor Agent in connection with the potential transfer
of all or part of the Loans or Commitments of any Lender or any other rights or
duties under the Credit Agreement, and (ii) this opinion may be disclosed to and
relied upon by assignees of or participants in the Loans or Commitments and by
any successor Agent if such assignments or participations or such successions
are permitted under and made in accordance with the Credit Agreement.
Very truly yours,
G-3
Form of Opinion
ANNEX I
SUBSIDIARIES
NAME OF THE LOAN PARTY STATE OF INCORPORATION OR FORMATION
---------------------- -----------------------------------
Teccor Electronics, Inc. Texas
Teccor Delaware, Inc. Delaware
Littelfuse I L.P. Delaware
Teccor Electronics Mexico Holdings LLC Delaware
Littelfuse GP, Inc. Delaware
Zie San Investments, Inc. Georgia
SurgX Corporation Delaware
G-4
Annex I to Form of Opinion