EXHIBIT 4
▇▇▇▇▇▇▇▇ Governor Company
Credit Agreement dated March 14 2003
EXECUTION COPY
CREDIT AGREEMENT
Dated as of March 14, 2003
among
▇▇▇▇▇▇▇▇ GOVERNOR COMPANY,
as the Borrower
THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS
and
BANK ONE, NA (MAIN OFFICE CHICAGO)
as Administrative Agent
BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Runner
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I: DEFINITIONS...........................................................................................1
1.1. Certain Defined Terms....................................................................................1
1.2. References..............................................................................................30
ARTICLE II: REVOLVING LOAN FACILITIES...........................................................................31
2.1. Revolving Loans.........................................................................................31
2.2. Swing Line Loans........................................................................................32
2.3. Rate Options for all Advances; Maximum Interest Periods.................................................34
2.4. Optional Payments; Mandatory Prepayments................................................................34
2.5. Reduction of Commitments................................................................................35
2.6. Method of Borrowing.....................................................................................36
2.7. Method of Selecting Types, Currency and Interest Periods for Advances...................................36
2.8. Minimum Amount of Each Advance..........................................................................37
2.9. Method of Selecting Types, Currency and Interest Periods for Conversion and Continuation of Advances....37
2.10. Default Rate............................................................................................38
2.11. Method of Payment.......................................................................................38
2.12. Evidence of Debt........................................................................................40
2.13. Telephonic Notices......................................................................................41
2.14. Promise to Pay; Interest and Facility Fees; Interest Payment Dates; Interest and Fee Basis; Taxes.......41
2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan
Commitment Reductions.................................................................................49
2.16. Lending Installations...................................................................................50
2.17. Non-Receipt of Funds by the Administrative Agent........................................................50
2.18. Termination Date........................................................................................50
2.19. Replacement of Certain Lenders..........................................................................51
2.20. Judgment Currency.......................................................................................52
2.21. Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of Reimbursement Obligations...53
2.22. Increase of Aggregate Revolving Loan Commitment.........................................................54
ARTICLE III: THE LETTER OF CREDIT FACILITY......................................................................57
3.1. Obligation to Issue Letters of Credit...................................................................57
3.2. Transitional Letters of Credit..........................................................................58
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3.3. Types and Amounts.......................................................................................58
3.4. Conditions..............................................................................................58
3.5. Procedure for Issuance of Letters of Credit.............................................................59
3.6. Letter of Credit Participation..........................................................................60
3.7. Reimbursement Obligation................................................................................60
3.8. Letter of Credit Fees...................................................................................61
3.9. Issuing Bank Reporting Requirements.....................................................................62
3.10. Indemnification; Exoneration...........................................................................62
3.11. Cash Collateral........................................................................................64
ARTICLE IV: CHANGE IN CIRCUMSTANCES.............................................................................64
4.1. Yield Protection........................................................................................64
4.2. Changes in Capital Adequacy Regulations.................................................................65
4.3. Availability of Types of Advances.......................................................................66
4.4. Funding Indemnification.................................................................................67
4.5. Lender Statements; Survival of Indemnity................................................................67
ARTICLE V: CONDITIONS PRECEDENT.................................................................................68
5.1. Initial Advances and Letters of Credit..................................................................68
5.2. Each Advance and Letter of Credit.......................................................................69
ARTICLE VI: REPRESENTATIONS AND WARRANTIES......................................................................70
6.1. Organization; Corporate Powers..........................................................................70
6.2. Authority; Enforceability...............................................................................70
6.3. No Conflict; Governmental Consents......................................................................71
6.4. Financial Statements....................................................................................72
6.5. No Material Adverse Change..............................................................................72
6.6. Taxes...................................................................................................72
6.7. Litigation; Loss Contingencies and Violations...........................................................72
6.8. Subsidiaries............................................................................................73
6.9. ERISA...................................................................................................73
6.10. Accuracy of Information................................................................................74
6.11. Securities Activities..................................................................................74
6.12. Material Agreements....................................................................................74
6.13. Compliance with Laws...................................................................................75
6.14. Assets and Properties..................................................................................75
6.15. Statutory Indebtedness Restrictions....................................................................75
6.16. Labor Matters..........................................................................................75
6.17. Environmental Matters..................................................................................75
6.18. Insurance..............................................................................................77
ARTICLE VII: COVENANTS..........................................................................................77
7.1. Reporting...............................................................................................77
7.2. Affirmative Covenants...................................................................................83
7.3. Negative Covenants......................................................................................86
7.4. Financial Covenants.....................................................................................95
ARTICLE VIII: DEFAULTS..........................................................................................96
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8.1. Defaults................................................................................................96
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES.................................100
9.1. Termination of Revolving Loan Commitments; Acceleration................................................100
9.2. Preservation of Rights.................................................................................101
9.3. Amendments.............................................................................................101
ARTICLE X: GENERAL PROVISIONS..................................................................................102
10.1. Survival of Representations............................................................................102
10.2. Governmental Regulation................................................................................102
10.3. Intentionally Omitted..................................................................................103
10.4. Headings...............................................................................................103
10.5. Entire Agreement.......................................................................................103
10.6. Several Obligations; Benefits of this Agreement........................................................103
10.7. Expenses; Indemnification..............................................................................103
10.8. Numbers of Documents...................................................................................105
10.9. Confidentiality........................................................................................105
10.10. Severability of Provisions.............................................................................106
10.11. Nonliability of Lenders................................................................................106
10.12. GOVERNING LAW..........................................................................................106
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL................................................106
10.14. Subordination of Intercompany Indebtedness.............................................................107
ARTICLE XI: THE ADMINISTRATIVE AGENT...........................................................................108
11.1. Appointment; Nature of Relationship....................................................................108
11.2. Powers.................................................................................................109
11.3. General Immunity.......................................................................................109
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc...........................................109
11.5. Action on Instructions of Lenders......................................................................110
11.6. Employment of Administrative Agent and Counsel.........................................................110
11.7. Reliance on Documents; Counsel.........................................................................111
11.8. The Administrative Agent's Reimbursement and Indemnification...........................................111
11.9. Rights as a Lender.....................................................................................111
11.10. Lender Credit Decision.................................................................................112
11.11. Successor Administrative Agent.........................................................................112
11.12. No Duties Imposed Upon Arranger........................................................................112
11.13. Notice of Default......................................................................................113
11.14. Delegation to Affiliates...............................................................................113
11.15. Intercreditor Agreement and Subsidiary Guaranty........................................................113
ARTICLE XII: SETOFF; RATABLE PAYMENTS..........................................................................113
12.1. Setoff.................................................................................................113
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12.2. Ratable Payments.......................................................................................114
12.3. Application of Payments................................................................................114
12.4. Relations Among Lenders................................................................................115
12.5. Representations and Covenants Among Lenders............................................................116
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................116
13.1. Successors and Assigns; Designated Lenders.............................................................116
13.2. Participations.........................................................................................119
13.3. Assignments............................................................................................120
13.4. Dissemination of Information...........................................................................122
13.5. Tax Certifications.....................................................................................123
ARTICLE XIV: NOTICES...........................................................................................123
14.1. Giving Notice..........................................................................................123
14.2. Change of Address......................................................................................123
ARTICLE XV: COUNTERPARTS.......................................................................................123
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Revolving Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
(Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice
(Section 2.2, Section 2.7 and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit
(Section 3.4)
EXHIBIT D -- Form of Assignment Agreement
(Definitions and Section 13.3)
EXHIBIT E -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I -- Form of Subsidiary Guaranty
(Definitions)
EXHIBIT J -- Form of Revolving Loan Note
(If Requested) (Section 2.12(D))
EXHIBIT K -- Form of Intercreditor Agreement
(Definitions)
EXHIBIT L -- Form of Designation Agreement
(Section 13.1(B))
EXHIBIT M -- Form of Commitment and Acceptance
(Section 2.22)
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SCHEDULES
Schedule 1.1.1 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.2 -- Permitted Existing Investments (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 1.1.4 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.3 -- Conflicts; Governmental Consents (Section 6.3)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.9 -- ERISA (Section 6.9)
Schedule 6.17 -- Environmental Matters (Section 6.17)
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CREDIT AGREEMENT
This
CREDIT AGREEMENT, dated as of March 14, 2003, is entered into by and
among ▇▇▇▇▇▇▇▇ Governor Company, a Delaware corporation, as the Borrower, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to SECTION 13.3, and Bank
One, NA (Main Office Chicago), as Administrative Agent for itself and the other
Lenders. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1. CERTAIN DEFINED TERMS. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined.
As used in this Agreement:
"ACCOUNTING CHANGES" is defined in SECTION 10.9 hereof.
"ACQUISITION" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (other than transactions involving solely the Borrower and
its Subsidiaries) (i) acquires any going business or all or substantially all of
the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
Equity Interests of another Person.
"ADDITIONAL REQUIRED LENDER" means (i) a Lender with a Revolving Loan
Commitment equal to or greater than $10,000,000 that does not constitute a
Non-Required Lender, (ii) Lenders with combined Revolving Loan Commitments equal
to or greater than $10,000,000 that do not constitute Non-Required Lenders, and
(iii) if all Lenders constitute Non-Required Lenders other than (x) two Lenders
with combined Pro Rata Shares equal to or greater than 51% and (y) a third
Lender with any size Revolving Loan Commitment, such third Lender.
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
representative for itself and the Lenders pursuant to ARTICLE XI hereof and any
successor Administrative Agent appointed pursuant to ARTICLE XI hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the Borrower of the same Type and, in
the case of Eurocurrency Rate Advances, in the same currency and for the same
Interest Period.
"AFFECTED LENDER" is defined in SECTION 2.19 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than or equal to twenty percent (20%) or more of any class
of voting securities (or other voting interests) of the controlled Person or
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through ownership
of Capital Stock, by contract or otherwise.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the Revolving
Loan Commitments of all the Lenders, as may be increased or reduced from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is One Hundred Million and 00/100 Dollars ($100,000,000.00).
"AGREED CURRENCIES" means (i) Dollars, and (ii) so long as such currency
remains an Eligible Currency, British Pounds Sterling, Japanese Yen and euro.
"AGREEMENT" means this
Credit Agreement, as it may be amended, restated or
otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect from time to time in the United States of America.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
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"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurocurrency Rate Loans determined in
accordance with the provisions of SECTION 2.14(D)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under SECTION 2.14(C)(i) hereof determined in accordance with the
provisions of SECTION 2.14(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination, a
rate per annum used to calculate Letter of Credit fees equal to the Applicable
Eurocurrency Margin then in effect.
"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 One Capital Markets, Inc., in its capacity as lead
arranger and sole book runner for the loan transaction evidenced by this
Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement entered
into in connection with an assignment pursuant to SECTION 13.3 hereof in
substantially the form of EXHIBIT D.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
to any Person other than the Borrower or any of its Subsidiaries other than (i)
the sale of inventory in the ordinary course of business, and (ii) the sale or
other disposition of any obsolete, excess, damaged or worn-out equipment
disposed of in the ordinary course of business.
"AUTHORIZED OFFICER" means any of the President, Chief Executive Officer,
Chief Financial Officer or Treasurer of the Borrower, acting singly.
"BANK ONE" means Bank One, NA (Main Office Chicago), in its individual
capacity, and its successors.
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"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan) in respect of which the Borrower or any
other member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means ▇▇▇▇▇▇▇▇ Governor Company, a Delaware corporation,
together with its successors and permitted assigns, including a
debtor-in-possession on behalf of the Borrower.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING/ELECTION NOTICE" is defined in SECTION 2.7 hereof.
"BRITISH POUNDS STERLING" means the lawful currency of Great Britain.
"BUSINESS DAY" means:
(a) for the purpose of determining the Eurocurrency Base Rate, a day other
than a Saturday or Sunday on which banks are open for the transaction
of domestic and foreign exchange business in London, England;
(b) for the purpose of any payment to be made in Dollars, a day other than
a Saturday or Sunday on which banks are open in Chicago, Illinois, and
New York, New York for the conduct of substantially all of their
commercial lending activities, including the transaction of domestic
and foreign exchange business, interbank wire transfers can be made on
the Fedwire system, and dealings in Dollars are carried on in the
London interbank markets; and
(c) for any other purpose, means a day (i) other than a Saturday or Sunday
on which banks are open in Chicago, Illinois, and New York, New York
for the conduct of substantially all of their commercial lending
activities, including the transaction of domestic and foreign exchange
business, and interbank wire transfers can be made on the Fedwire
system, and (ii) with respect to borrowings, payment or rate selection
of Loans denominated in (A) euro, a day on which such clearing system
as is determined by the Administrative Agent to be suitable for
clearing or settlement of euro is open for business and (B) an Agreed
Currency
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other than Dollars and euro, a day on which the applicable
Eurocurrency Payment Office related to such currency is open for the
transaction of domestic and foreign exchange business.
"BUYING LENDER" is defined in SECTION 2.22 hereof.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a limited liability company, membership
interests, (iv) in the case of a partnership, partnership interests (whether
general or limited) and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person; PROVIDED, HOWEVER, that "Capital
Stock" shall not include any debt securities convertible into equity securities
prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the governments of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated BBB (or
better) by S&P or Fitch or Baa (or better) by ▇▇▇▇▇'▇, and which certificates of
deposit and time deposits are fully protected against currency fluctuations for
any such deposits with a term of more than ninety (90) days; (iii) shares of
money market, mutual or similar funds having assets in excess of $100,000,000
and the investments of which are limited to investment grade securities (i.e.,
securities rated BBB (or better) by S&P or
5
Fitch or Baa (or better) by ▇▇▇▇▇'▇; and (iv) commercial paper of United States
and foreign banks and bank holding companies and their subsidiaries and United
States and foreign finance, commercial industrial or utility companies which, at
the time of acquisition, are rated A-2 (or better) by S&P, P-2 (or better) by
▇▇▇▇▇'▇, or F-2 (or better) by Fitch; PROVIDED that the maturities of such Cash
Equivalents shall not exceed three hundred sixty-five (365) days from the date
of acquisition thereof.
"CHANGE" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means 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), becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, provided that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of thirty percent (30%) or more of the
combined voting power of the Borrower's outstanding Capital Stock
ordinarily having the right to vote at an election of directors; or
(b) the majority of the board of directors of the Borrower fails to
consist of Continuing Directors; or
(c) the Borrower consolidates with or merges into another corporation
or conveys, transfers or leases all or substantially all of its property to
any Person, in either event pursuant to a transaction in which the
outstanding Capital Stock of the Borrower is reclassified or changed into
or exchanged for cash, securities or other property.
"CLOSING DATE" means March 14, 2003.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
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"COMMITMENT AND ACCEPTANCE" is defined in SECTION 2.22 hereof.
"COMMITMENT INCREASE NOTICE" is defined in SECTION 2.22 hereof.
"CONSOLIDATED ASSETS" means the total assets of the Borrower and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles).
"CONSOLIDATED INTEREST EXPENSE" means the interest expense (including,
without limitation, yield owing upon or in connection with Receivables Facility
Attributed Indebtedness or any other amount that would be characterized as
interest if related Receivables Facility Attributed Indebtedness constituted a
secured loan) of the Borrower and its Subsidiaries calculated on a consolidated
basis (determined, subject to the foregoing parenthetical, in accordance with
Agreement Accounting Principles).
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity (including capital stock,
additional paid-in capital and retained earnings) on the consolidated balance
sheet for the Borrower and its consolidated Subsidiaries determined in
accordance with Agreement Accounting Principles.
"CONTAMINANT" means any pollutant, hazardous substance, toxic substance,
hazardous waste, special waste, petroleum or petroleum-derived substance,
asbestos, polychlorinated biphenyls ("PCBS"), or any constituent of any such
substance, and includes but is not limited to these terms as defined in
Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any Contractual
Obligation, contingent or otherwise, of that Person with respect to any
Indebtedness of another or other obligation or liability of another, including,
without limitation, any such Indebtedness, obligation or liability of another
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor, or
to provide funds for the payment or discharge thereof (whether in the form
7
of loans, advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial condition, or to
make payment other than for value received. The amount of any Contingent
Obligation shall be equal to the present value of the portion of the obligation
so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date of
determination, any member of the board of directors of such Person who (a) was a
member of such board of directors on the date of this Agreement, or (b) was
nominated for election or elected to such board of directors with the approval
of the Continuing Directors who were members of such board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision of
any equity or debt securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument, in any case in writing, to which that
Person is a party or by which it or any of its properties is bound, or to which
it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation which
is a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower; (ii) a partnership or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member
of the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Borrower, any corporation described in CLAUSE (i) above or any
partnership or trade or business described in CLAUSE (ii) above.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due and payable or (if
foreclosure, distraint, sale or other similar proceedings shall not have
been commenced or any such proceeding after being commenced is stayed)
which are being contested in good faith by appropriate proceedings properly
instituted
8
and diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained, which reserves and
provisions shall be maintained in accordance with generally accepted
accounting principles as in effect from time to time, if and to the extent
that such generally accepted accounting principles so require;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens
imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect
to which adequate reserves or other appropriate provisions are being
maintained, which reserves and provisions shall be maintained in accordance
with generally accepted accounting principles as may be in effect from time
to time, if and to the extent that such generally accepted accounting
principles so require;
(iii) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
or other types of social security benefits or to secure the performance of
bids, tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A) all such
Liens do not in the aggregate materially detract from the value of the
Borrower's or such Subsidiary's assets or property taken as a whole or
materially impair the use thereof in the operation of the businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in
connection with appeals do not secure at any time an aggregate amount
exceeding $15,000,000;
(iv) Liens arising with respect to zoning restrictions, easements,
encroachments, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges, restrictions or
encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary use or occupancy of the real
property or with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
9
(v) Liens of attachment or judgment with respect to judgments, writs
or warrants of attachment, or similar process against the Borrower or any
of its Subsidiaries which do not constitute a Default under SECTION 8.1(H)
hereof; and
(vi) any interest or title of the lessor in the property subject to any
operating lease entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business.
"DEFAULT" means an event described in ARTICLE VIII hereof.
"DESIGNATED LENDER" means, with respect to each Designating Lender, each
Eligible Designee designated by such Designating Lender pursuant to SECTION
13.1(B).
"DESIGNATING LENDER" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to SECTION 13.1(B).
"DESIGNATION AGREEMENT" is defined in SECTION 13.1(B).
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person succeeding
to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United States
of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount of
such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOMESTIC INCORPORATED SUBSIDIARY" means a Subsidiary of the Borrower
organized under the laws of a jurisdiction located in the United States of
America.
10
"EBIT" means, for any period, on a consolidated basis for the Borrower and
its Subsidiaries, the sum of the amounts for such period, without duplication,
of (i) Net Income, PLUS (ii) Interest Expense to the extent deducted in
computing Net Income, PLUS (iii) charges against income for foreign, federal,
state and local taxes to the extent deducted in computing Net Income, PLUS (iv)
any unusual non-cash charges to the extent deducted in computing Net Income,
MINUS (v) any unusual non-cash gains to the extent added in computing Net
Income. EBIT shall be calculated on a PRO FORMA basis giving effect to
acquisitions and Asset Sales on a last twelve (12) months' basis using, for any
Permitted Acquisition, historical financial statements containing reasonable
adjustments satisfactory to the Administrative Agent, broken down by fiscal
quarter in the Borrower's reasonable judgment.
"EBITDA" means, for any period, on a consolidated basis for the Borrower
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, PLUS (ii) Interest Expense to the extent
deducted in computing Net Income, PLUS (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
PLUS (iv) depreciation expense to the extent deducted in computing Net Income,
PLUS (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, PLUS (vi) any unusual non-cash charges to the extent deducted in
computing Net Income, MINUS (vii) any unusual non-cash gains to the extent added
in computing Net Income. EBITDA shall be calculated on a PRO FORMA basis giving
effect to acquisitions and Asset Sales on a last twelve (12) months' basis
using, for any Permitted Acquisition, historical financial statements containing
reasonable adjustments satisfactory to the Administrative Agent, broken down by
fiscal quarter in the Borrower's reasonable judgment.
"EFFECTIVE COMMITMENT AMOUNT" is defined in SECTION 2.22 hereof.
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect to
which the Administrative Agent or the Borrower has not given notice in
accordance with SECTION 2.21 and that is readily available, freely traded, in
which deposits are customarily offered to banks in the London interbank market,
convertible into Dollars in the international interbank market available to the
Lenders in such market and as to which an Equivalent Amount may be readily
calculated. If, after the designation by the Lenders at the request of the
Borrower of any
11
currency as an Agreed Currency, currency control or other exchange regulations
are imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, such country's currency is, in
the determination of the Administrative Agent, no longer readily available or
freely traded or (ii) as to which, in the determination of the Administrative
Agent, an Equivalent Amount is not readily calculable (each of CLAUSE (i) and
(ii), a "DISQUALIFYING EVENT"), then the Administrative Agent shall promptly
notify the Lenders and the Borrower, and such country's currency shall no longer
be an Agreed Currency until such time as the Disqualifying Event(s) no longer
exist, but in any event within five (5) Business Days of receipt of such notice
from the Administrative Agent, the Borrower shall repay all Loans in such
currency to which the Disqualifying Event applies or convert such Loan into
Loans in Dollars or another Agreed Currency, subject to the other terms
contained in ARTICLES II and IV.
"ELIGIBLE DESIGNEE" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of America or any state
thereof, (ii) is engaged primarily in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and (iii) issues (or
the parent of which issues) commercial paper rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 ET SEQ., the Occupational Safety and Health Act of
1970, 29 U.S.C. Section 651 ET SEQ., and the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Section 6901 ET SEQ., in each case including any
amendments thereto, any successor statutes, and any regulations or guidance
promulgated thereunder, and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental Authority
for (a) any liability under Environmental, Health or Safety Requirements of Law,
or (b) damages arising from, or costs incurred by such Governmental
12
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement of
law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUIVALENT AMOUNT" of any currency at any date shall mean the equivalent
in Dollars of such currency, calculated on the basis of the arithmetic mean of
the buy and sell spot rates of exchange of the Administrative Agent or an
Affiliate of the Administrative Agent in the London interbank market (or other
market where the Administrative Agent's foreign exchange operations in respect
of such currency are then being conducted) for such other currency at or about
11:00 a.m. (local time applicable to the transaction in question) on the date on
which such amount is to be determined, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time; PROVIDED,
HOWEVER, that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent or an Affiliate of the
Administrative Agent may use any reasonable method it deems appropriate (after
consultation with the Borrower) to determine such amount, and such determination
shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the lawful currency of the member states of the European Union
which adopted the Council Regulation E.C. No. 1103/97 dated 17 June 1997 passed
by the Council of the European Union, or, if different, the then lawful currency
of the member states of the European Union that participate in the third stage
of the Economic and Monetary Union.
13
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate Loan
for the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in the Agreed Currency as reported by any
generally recognized financial information service as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, as adjusted for Reserves
provided that, if no such British Bankers' Association LIBOR rate is available
to the Administrative Agent, the applicable Eurocurrency Base Rate for the
relevant Interest Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in the Agreed Currency with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, in the approximate
amount of Bank One's relevant Eurocurrency Rate Loan and having a maturity equal
to such Interest Period, as adjusted for Reserves.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean, for
each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency on EXHIBIT A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the Borrower and each Lender as its Eurocurrency Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for the
relevant Interest Period, the Eurocurrency Base Rate applicable to such Interest
Period PLUS the Applicable Eurocurrency Margin then in effect.
"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at the
Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made on a fully syndicated basis
pursuant to SECTION 2.1, which bears interest at the Eurocurrency Rate.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so
14
published for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Administrative Agent from three (3) Federal funds brokers of
recognized standing selected by the Administrative Agent in its sole discretion.
"FITCH" means Fitch Investors Service, L.P., together with its successors
and assigns.
"FIXED-RATE LOAN" means any Eurocurrency Rate Loan bearing a fixed rate of
interest for the applicable Interest Period.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal to
the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears interest
at the Floating Rate.
"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.
"GOVERNMENTAL ACTS" is defined in SECTION 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"HEDGING AGREEMENTS" is defined in SECTION 7.3(M) hereof.
"HEDGING ARRANGEMENTS" is defined in the definition of "Hedging
Obligations" below.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements,
15
devices or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, commodity prices, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants or any similar derivative
transactions ("HEDGING ARRANGEMENTS"), and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any of the foregoing.
"INDEBTEDNESS" of a person means, without duplication, such Person's (i)
obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade and other than
earn-outs or other similar forms of contingent purchase prices), (iii)
obligations, whether or not assumed, secured by Liens on or payable out of the
proceeds or production from property or assets now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi)
Contingent Obligations with respect to the Indebtedness of other Persons, (vii)
obligations with respect to letters of credit, (viii) Off-Balance Sheet
Liabilities, (ix) Receivables Facility Attributed Indebtedness, (x) Disqualified
Stock, and (xi) Hedging Obligations. The amount of Indebtedness of any Person at
any date shall be without duplication (i) the outstanding balance at such date
of all unconditional obligations as described above and the maximum liability of
any such Contingent Obligations at such date and (ii) in the case of
Indebtedness of others secured by a Lien to which the property or assets owned
or held by such Person is subject, the lesser of the fair market value at such
date of any asset subject to a Lien securing the Indebtedness of others and the
amount of the Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in SECTION 10.7(B) hereof.
"INDEMNITEES" is defined in SECTION 10.7(B) hereof.
"INITIAL OBLIGOR GROUP" means each member of the Obligor Group as of the
Closing Date.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated as of
March 14, 2003, in the form attached
16
hereto as EXHIBIT K, by and among the Administrative Agent and the Senior
Noteholders, as the same may be amended, restated, supplemented, or otherwise
modified from time to time.
"INTEREST COVERAGE RATIO" is defined in SECTION 7.4(C) hereof.
"INTEREST EXPENSE" means, without duplication, for any period, the total
interest expense of the Borrower and its consolidated Subsidiaries, whether paid
or accrued (including the interest component of Capitalized Leases, commitment
and letter of credit fees, Off-Balance Sheet Liabilities and net payments or
receipts (if any) pursuant to Hedging Arrangements relating to interest rate
protection), all as determined in conformity with Agreement Accounting
Principles.
"INTEREST PERIOD" means, with respect to a Eurocurrency Rate Loan, a period
of one (1), two (2), three (3) or six (6) months, commencing on a Business Day
selected by the Borrower on which a Eurocurrency Rate Advance is made to the
Borrower pursuant to this Agreement. Such interest Period shall end on (but
exclude) the day which corresponds numerically to such date one (1), two (2),
three (3) or six (6) months thereafter; PROVIDED, HOWEVER, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, PROVIDED, HOWEVER, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions, prepaid
expenses, accounts receivable, advances to employees and similar items made or
incurred in the ordinary course of business) or capital contribution by that
Person to any other Person, including all Indebtedness to such Person arising
from a
17
sale of property by such Person other than in the ordinary course of its
business.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"ISSUING BANKS" means Bank One or any of its Affiliates, or any other
Lender in its separate capacity as an issuer of Letters of Credit pursuant to
SECTION 3.1 and Wachovia Bank, N.A., in its separate capacity as an issuer of
letters of credit deemed to be Letters of Credit pursuant to SECTION 3.2. The
designation of any Lender as an Issuing Bank after the date hereof shall be
subject to the prior written consent of the Administrative Agent, which consent
shall not be unreasonably withheld or delayed.
"JAPANESE YEN" means the lawful currency of Japan.
"LAST TWELVE-MONTH PERIOD" means, with respect to any fiscal quarter, the
four-fiscal quarter period ending on the last day of such fiscal quarter.
"L/C DOCUMENTS" is defined in SECTION 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter of
Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in SECTION 3.6
hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the sum of
(i) the aggregate of the Dollar Amount then available for drawing under each of
the Letters of Credit and (ii) the aggregate outstanding Dollar Amount of all
Reimbursement Obligations at such time.
"LENDER INCREASE NOTICE" is defined in SECTION 2.22 hereof.
"LENDERS" means the lending institutions listed on the signature pages of
this Agreement or parties to Assignment Agreements delivered pursuant to SECTION
13.3, including the Issuing Banks, the Swing Line Banks and each of their
respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
18
"LETTER OF CREDIT" means the standby letters of credit (i) to be issued by
the Issuing Banks pursuant to SECTION 3.1 hereof or (ii) deemed issued by an
Issuing Bank pursuant to SECTION 3.2 hereof.
"LEVERAGE RATIO" is defined in SECTION 7.4(A) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to SECTION 2.1 hereof, as applicable, and in the case of
the Swing Line Bank, any Swing Line Loan made pursuant to SECTION 2.2 hereof,
and collectively, all Revolving Loans and Swing Line Loans, whether made or
continued as or converted to Floating Rate Loans or Fixed-Rate Loans.
"LOAN ACCOUNT" is defined in SECTION 2.12(A) hereof.
"LOAN DOCUMENTS" means this Agreement, any promissory notes executed
pursuant to SECTION 2.12(D), the Subsidiary Guaranty, the Intercreditor
Agreement, and all other documents, instruments, notes and agreements executed
in connection therewith or contemplated thereby, as the same may be amended,
restated or otherwise modified and in effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, financial condition, operations, affairs, assets, or properties of the
Borrower, or the Borrower and its Subsidiaries, taken as a whole, (b) the
ability of the Borrower or any of its Subsidiaries to perform its obligations
under the Loan Documents in any material respect, or (c) the ability of the
Lenders or the Administrative Agent to enforce in any material respect the
Obligations.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., together with its
successors and assigns.
19
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NET INCOME" means, for any period, the net income (or loss) after taxes of
the Borrower and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in conformity with Agreement Accounting
Principles.
"NON-ERISA COMMITMENTS" means:
(i) each pension, medical, dental, life, accident insurance,
disability, group insurance, sick leave, profit sharing, deferred
compensation, bonus, stock option, stock purchase, retirement, savings,
severance, stock ownership, performance, incentive, hospitalization or
other insurance, or other welfare, benefit or fringe benefit plan, policy,
trust, understanding or arrangement of any kind; and
(ii) each employee collective bargaining agreement and each agreement,
understanding or arrangement of any kind, with or for the benefit of any
present or prior officer, director, employee or consultant (including,
without limitation, each employment, compensation, deferred compensation,
severance or consulting agreement or arrangement and any agreement or
arrangement associated with a change in ownership of the Borrower or any
member of the Controlled Group);
to which the Borrower or any member of the Controlled Group is a party or with
respect to which the Borrower or any member of the Controlled Group is or will
be required to make any payment other than any Plans.
"NON-REQUIRED LENDER" is defined in the definition of "Required Lender".
"NOTE AGREEMENT" means that certain Note Purchase Agreement, dated as of
October 15, 2001, by and among the Borrower, as the issuer of the Senior Notes,
and the Senior Noteholders, as the same may be amended, restated, supplemented,
or otherwise modified from time to time.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower or any of
its Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank,
the Arranger, any
20
Affiliate of the Administrative Agent or any Lender, the Issuing Bank, or any
Indemnitee, of any kind or nature, present or future, arising under this
Agreement, the L/C Documents, the Subsidiary Guaranty, or any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all Hedging Obligations owing
under Hedging Agreements to any Lender or any Affiliate of any Lender, all
interest, charges, expenses, fees, attorneys' fees and disbursements,
paralegals' fees (in each case whether or not allowed), and any other sum
chargeable to the Borrower or any of its Subsidiaries under this Agreement or
any other Loan Document.
"OBLIGOR GROUP" means (a) the Borrower and (b) the Subsidiary Guarantors.
"OFF-BALANCE SHEET LIABILITIES" of a person means (a) any Receivables
Facility Attributed Indebtedness and repurchase obligations or liabilities of
such Person or any of its Subsidiaries with respect to Receivables or notes
receivable sold by such Person or any of its Subsidiaries, (b) any liabilities
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create liabilities on the consolidated balance sheet
of such Person, (c) any liabilities of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (d) any
obligations of such Person or any of its Subsidiaries arising with respect to
any other transaction which is the functional equivalent of or takes the place
of borrowing but which, in the case of the foregoing clauses (a) through (d),
does not constitute a liability on the consolidated balance sheets of such
Person and its Subsidiaries.
"ORIGINAL CURRENCY" is defined in SECTION 2.11(b) hereof.
"OTHER TAXES" is defined in SECTION 2.14(E)(ii) hereof.
"PARTICIPANTS" is defined in SECTION 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June, September
and December and the Termination Date.
21
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrower and its Subsidiaries identified as such on SCHEDULE
1.1.4 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Borrower
and its Subsidiaries identified as such on SCHEDULE 1.1.1 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.3 to this Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, subordination,
event of default and remedies) materially less favorable to the Borrower than
those applicable to the Indebtedness being replaced, renewed, refinanced or
extended.
"PERSON" means any individual, corporation, firm, enterprise, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company or other entity of any kind, or any
government or political subdivision or any agency, department or instrumentality
thereof.
22
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA in
respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"PROPOSED NEW LENDER" is defined in SECTION 2.22 hereof.
"PRO RATA SHARE" means, with respect to any Lender, the percentage obtained
by dividing (x) such Lender's Revolving Loan Commitment at such time (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement) by (y) the Aggregate Revolving Loan Commitment at such time;
PROVIDED, HOWEVER, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, PLUS (B) such Lender's share of the obligations to purchase
participations in Swing Line Loans and Letters of Credit, by (y) the sum of (A)
the aggregate outstanding amount of all Revolving Loans, PLUS (B) the aggregate
outstanding amount of all Swing Line Loans and all Letters of Credit.
"PURCHASERS" is defined in SECTION 13.3(A).
"RATE OPTION" means the Eurocurrency Rate or the Floating Rate, as
applicable.
"RECEIVABLE(S)" means and includes all of the Borrower's and each
Subsidiary's presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Borrower or such
Subsidiary to payment for goods sold or leased or for services rendered (except
those evidenced by instruments or chattel paper), whether or not they have been
earned by performance, and all rights in any merchandise or goods which any of
the same may represent, and all rights, title, security and guarantees with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be
23
characterized as principal if such facility were structured as a secured lending
transaction rather than as a purchase.
"REGISTER" is defined in SECTION 13.3(D) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including the movement of Contaminants through or in the
air, soil, surface water or groundwater.
"REPLACEMENT LENDER" is defined in SECTION 2.19 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days after such event occurs.
"REQUEST FOR LETTER OF CREDIT" is defined in SECTION 3.4(A) hereof.
24
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate,
are equal to or greater than fifty-one percent (51%); PROVIDED, HOWEVER, that
with respect to any action requiring the approval or consent of the Required
Lenders, if two Lenders have Pro Rata Shares which, when taken together, equal
or exceed 51%, and such Lenders approve or consent to such action, then, in
order for such action to be permitted hereunder, the consent of an Additional
Required Lender shall also be necessary; PROVIDED FURTHER, that:
(x) if any Lender shall have failed to fund its Pro Rata Share of:
(i) any Revolving Loan requested by the Borrower;
(ii) any Revolving Loan required to be made in connection with
reimbursement for any L/C Obligations; or
(iii) any Swing Line Loan as requested by the Administrative Agent,
which such Lenders are obligated to fund under the terms of this Agreement;
and any such failure has not been cured (any such Lender, a "NON-REQUIRED
LENDER"), then, for so long as such failure continues, "REQUIRED LENDERS"
means, subject to the necessity of the consent of an Additional Required
Lender, Lenders (excluding all Non-Required Lenders) whose Pro Rata Shares
represent at least fifty-one percent (51%) of the aggregate Pro Rata Shares
of such Lenders; and
(y) if the Revolving Loan Commitments have been terminated pursuant to the
terms of this Agreement, "REQUIRED LENDERS" means Lenders (without regard
to such Lenders' performance of their respective obligations hereunder)
whose aggregate ratable shares (stated as a percentage) of the aggregate
outstanding principal balance of all Loans and L/C Obligations are at least
fifty-one percent (51%). With respect to the first proviso hereof, by way
of example only, in the event (i) no Lender constitutes a Non-Required
Lender, (ii) two Lenders with Pro Rata Shares in excess of 51% approve an
action, and (iii) no remaining Lender possesses a Revolving Loan Commitment
equal to or greater than $10,000,000, then such action will not be approved
hereunder unless remaining Additional Required Lenders with combined
Revolving Loan Commitments equal to or greater than $10,000,000 approve
such action. However, if the two Lenders with Pro Rata Shares in excess of
51% were the only two Lenders that did not constitute Non-Required Lenders,
25
then no other Lender's consent would be required because no such remaining
Lender would be qualified to give such a consent.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act, the Securities Exchange Act of 1934,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) with respect
to "Eurocurrency liabilities" or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurocurrency
Rate Loans is determined or category of extensions of credit or other assets
which includes loans by a non-United States office of any Lender to United
States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution, direct
or indirect, on account of any Equity Interests of the Borrower now or hereafter
outstanding, except a dividend payable solely in the Borrower's Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Borrower or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any Equity
26
Interests of the Borrower, or any of its Subsidiaries, or of a claim for
reimbursement, indemnification or contribution arising out of or related to any
such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount
by which (x) the Aggregate Revolving Loan Commitment at such time exceeds (y)
the Dollar Amount of the Revolving Credit Obligations outstanding at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the outstanding principal Dollar Amount of the Revolving Loans at such time,
PLUS (ii) the outstanding principal amount of the Swing Line Loans at such time,
PLUS (iii) the Dollar Amount of outstanding L/C Obligations at such time.
"REVOLVING LOAN" is defined in SECTION 2.1 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of such
Lender to make Revolving Loans and to purchase participations in Letters of
Credit and to participate in Swing Line Loans in an aggregate amount not
exceeding the amount set forth on EXHIBIT A to this Agreement opposite its name
thereon under the heading "Revolving Loan Commitment" or the signature page of
the Assignment Agreement by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment Agreement.
"REVOLVING LOAN TERMINATION DATE" means March 14, 2006.
"RISK-BASED CAPITAL GUIDELINES" is defined in SECTION 4.2 hereof.
"S&P" means Standard and Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, together with its successors and assigns.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SELLING LENDER" is defined in SECTION 2.22 hereof.
"SENIOR NOTEHOLDER" means a Person holding a Senior Note.
"SENIOR NOTES" means the 6.39% Senior Notes due October 15, 2011, as the
same may be amended, restated, supplemented or otherwise modified from time to
time, issued by the Borrower
27
pursuant to the Note Agreement in an aggregate initial principal amount of
$75,000,000.
"SIGNIFICANT DOMESTIC INCORPORATED SUBSIDIARY" means any Domestic
Incorporated Subsidiary whose assets or sales represent more than 10% of the
Borrower's and its Subsidiaries' Consolidated Assets or consolidated sales, with
any determination of Consolidated Assets and consolidated sales based upon
amounts shown in the Borrower's most recently delivered annual consolidated
financial statements.
"SIGNIFICANT FOREIGN SUBSIDIARY" means a Subsidiary of the Borrower that is
not a Domestic Incorporated Subsidiary and whose assets represent more than 3%
of the Borrower's and its Subsidiaries' Consolidated Assets, with such
determination of Consolidated Assets based upon amounts shown in the Borrower's
most recently delivered annual consolidated financial statements.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty percent
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" means a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTORS" means (i) all of the Borrower's Significant
Domestic Incorporated Subsidiaries as of the Closing Date and (ii) all new
Significant Domestic Incorporated Subsidiaries which become Subsidiary
Guarantors in accordance with SECTION 7.2(K), together with their respective
successors and assigns.
"SUBSIDIARY GUARANTY" means that certain Subsidiary Guaranty, dated as of
the Closing Date, in form and substance substantially similar to EXHIBIT I
hereto, executed by the Subsidiary Guarantors in favor of the Administrative
Agent, for the ratable benefit of the Lenders, the Swing Line Bank and the
28
Issuing Banks (as it may be amended, modified, supplemented and/or restated
(including to add new Subsidiary Guarantors), and as in effect from time to
time), unconditionally guaranteeing all of the indebtedness, obligations and
liabilities of the Borrower arising under or in connection with the Loan
Documents.
"SWING LINE BANK" means Bank One or any other Lender as a successor Swing
Line Bank pursuant to the terms hereof.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to make
Swing Line Loans to the Borrower up to a maximum principal amount of $10,000,000
at any one time outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the Swing
Line Bank pursuant to SECTION 2.2 hereof.
"SWING LINE REPAYMENT DATE" is defined in SECTION 2.2(D).
"TAXES" is defined in SECTION 2.14(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan Termination
Date, and (b) the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to SECTION 2.5 hereof or the Revolving Loan Commitments
pursuant to SECTION 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA with respect to such Plan; (iii) the imposition of an
obligation under Section 4041 of ERISA to provide affected parties written
notice of intent to terminate a Benefit Plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate or appoint a trustee to administer a Benefit Plan; (v) any event or
condition which would constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Benefit Plan;
or (vi) the partial or complete withdrawal of the Borrower or any member of the
Controlled Group from a Multiemployer Plan.
"TRANSFEREE" is defined in SECTION 13.4.
29
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan
or a Fixed-Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans, the
amount (if any) by which the present value of all vested nonforfeitable benefits
under all Single Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans, and (ii) in the case of Multiemployer Plans, the
withdrawal liability that would be incurred by the Controlled Group if all
members of the Controlled Group completely withdrew from all Multiemployer
Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"WACHOVIA
CREDIT AGREEMENT" means the
Credit Agreement, dated as of June
15, 1998, by and among the Borrower, the lenders party thereto, and Wachovia
Bank, N.A., as agent, as amended or modified.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Any accounting terms used in this
Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles as in effect from time to time.
1.2. REFERENCES. Any references to Subsidiaries of the Borrower set forth
herein with respect to representations and warranties which deal with historical
matters shall be deemed to include the Borrower and its Subsidiaries and shall
not in any way be construed as consent by the Administrative Agent or any Lender
to the establishment, maintenance or acquisition of any Subsidiary, except as
may otherwise be permitted hereunder.
30
ARTICLE II: REVOLVING LOAN FACILITIES
2.1. REVOLVING LOANS.
(A) Upon the satisfaction of the conditions precedent set forth in SECTIONS
5.1 and 5.2, from and including the Closing Date and prior to the Termination
Date, each Lender severally and not jointly agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans to the Borrower from time
to time, in Dollars or Eurocurrency Rate Loans in any Agreed Currency, in a
Dollar Amount not to exceed such Lender's Pro Rata Share of Revolving Credit
Availability at such time (each individually, a "REVOLVING LOAN" and,
collectively, the "REVOLVING LOANS"); PROVIDED, HOWEVER, at no time shall the
Dollar Amount of the Revolving Credit Obligations exceed the Aggregate Revolving
Loan Commitment. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow Revolving Loans at any time prior to the Termination
Date. The Revolving Loans made on the Closing Date or on or before the third
(3rd) Business Day thereafter shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into
Eurocurrency Rate Loans in the manner provided in SECTION 2.9 and subject to the
other conditions and limitations therein set forth and set forth in this ARTICLE
II and set forth in the definition of Interest Period. Revolving Loans made
after the third (3rd) Business Day after the Closing Date shall be, at the
option of the Borrower, selected in accordance with SECTION 2.9, either Floating
Rate Loans or Eurocurrency Rate Loans. On the Termination Date, the Borrower
shall repay in full the outstanding principal balance of the Revolving Loans.
Each Advance under this SECTION 2.1 shall consist of Revolving Loans made by
each Lender ratably in proportion to such Lender's respective Pro Rata Share.
(B) BORROWING/ELECTION NOTICE. In accordance with SECTION 2.13, the
Borrower may telephonically request Advances hereunder. If a telephonic request
is not made with respect to any Advance in accordance with SECTION 2.13, then
the Borrower shall deliver to the Administrative Agent a Borrowing/Election
Notice, signed by it, in accordance with the terms of SECTION 2.7, in order to
request such Advance. In either case, the Administrative Agent shall promptly
notify each Lender of such request.
(C) MAKING OF REVOLVING LOANS. Promptly after receipt of the
Borrowing/Election Notice under SECTION 2.7 in respect of Revolving Loans, the
Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of
31
transmission, of the requested Revolving Loan. Each Lender shall make available
its Revolving Loan in accordance with the terms of SECTION 2.6. The
Administrative Agent will promptly make the funds so received from the Lenders
available to the Borrower at the Administrative Agent's office in Chicago,
Illinois or the Administrative Agent's Eurocurrency Payment Office on the
applicable Borrowing Date and shall disburse such proceeds in accordance with
the Borrower's disbursement instructions set forth in such Borrowing/Election
Notice. The failure of any Lender to deposit the amount described above with the
Administrative Agent on the applicable Borrowing Date shall not relieve any
other Lender of its obligations hereunder to make its Revolving Loan on such
Borrowing Date.
2.2. SWING LINE LOANS.
(A) AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the conditions
precedent set forth in SECTION 5.1 and 5.2, from and including the Closing Date
and prior to the Termination Date, the Swing Line Bank agrees, on the terms and
conditions set forth in this Agreement, to make swing line loans to the Borrower
from time to time, in Dollars, in an amount not to exceed the Swing Line
Commitment (each, individually, a "SWING LINE LOAN" and collectively, the "SWING
LINE LOANS"); PROVIDED, HOWEVER, at no time shall the Dollar Amount of the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment; and
PROVIDED, FURTHER, that at no time shall the sum of (a) the Swing Line Lender's
Pro Rata Share of the Swing Line Loans, plus (b) the outstanding Dollar Amount
of Revolving Loans made by the Swing Line Bank pursuant to SECTION 2.1, exceed
the Swing Line Bank's Revolving Loan Commitment at such time. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Swing Line
Loans at any time prior to the Termination Date.
(B) BORROWING/ELECTION NOTICE. The Borrower shall deliver to the
Administrative Agent and the Swing Line Bank a Borrowing/Election Notice, signed
by it, not later than 12:00 noon (Chicago time) on the Borrowing Date of each
Swing Line Loan, specifying (i) the applicable Borrowing Date (which date shall
be a Business Day and which may be the same date as the date the
Borrowing/Election Notice is given), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than $100,000.
(C) MAKING OF SWING LINE LOANS. Promptly after receipt of the
Borrowing/Election Notice under SECTION 2.2(B) in respect of Swing Line Loans,
the Administrative Agent shall notify each
32
Lender by telex or telecopy, or other similar form of transmission, of the
requested Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Bank shall make available its Swing
Line Loan, in funds immediately available in Chicago to the Administrative Agent
at its address specified pursuant to ARTICLE XIV. The Administrative Agent will
promptly make the funds so received from the Swing Line Bank available to the
Borrower on the Borrowing Date at the Administrative Agent's aforesaid address.
(D) REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be paid in
full by the Borrower or before the later to occur of (x) the fifth (5th)
Business Day after the Borrowing Date for such Swing Line Loan and (y) such
other Business Day as may be agreed to in writing by the Borrower and the Swing
Line Lender (the "SWING LINE REPAYMENT DATE"). The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans or, in a minimum
amount of $100,000 and increments of $100,000 in excess thereof, any portion of
the outstanding Swing Line Loans, upon notice to the Administrative Agent and
the Swing Line Bank. In addition, the Administrative Agent (i) may at any time
in its sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall on the Swing Line Repayment Date require each Lender (including the Swing
Line Bank) to make a Revolving Loan in the amount of such Lender's Pro Rata
Share of such Swing Line Loan, for the purpose of repaying such Swing Line Loan.
No later than 2:00 p.m. (Chicago time) on the date of any notice received
pursuant to this SECTION 2.2(D), each Lender shall make available its required
Revolving Loan or Revolving Loans, in funds immediately available in Chicago to
the Administrative Agent at its address specified pursuant to ARTICLE XIV.
Revolving Loans made pursuant to this SECTION 2.2(D) shall initially be Floating
Rate Loans and thereafter may be continued as Floating Rate Loans or converted
into Eurocurrency Rate Loans in the manner provided in SECTION 2.9 and subject
to the other conditions and limitations therein set forth and set forth in this
ARTICLE II. Unless a Lender shall have notified the Swing Line Bank, prior to
its making any Swing Line Loan, that any applicable condition precedent set
forth in SECTIONS 5.1 and 5.2 had not then been satisfied, such Lender's
obligation to make Revolving Loans pursuant to this SECTION 2.2(D) to repay
Swing Line Loans shall be unconditional, continuing, irrevocable and absolute
and shall not be affected by any circumstances, including, without limitation,
(a) any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Administrative Agent, the Swing Line Bank or any
other Person,
33
(b) the occurrence or continuance of a Default or Unmatured Default, (c) any
adverse change in the condition (financial or otherwise) of the Borrower, or (d)
any other circumstances, happening or event whatsoever. In the event that any
Lender fails to make payment to the Administrative Agent of any amount due under
this SECTION 2.2(D), the Administrative Agent shall be entitled to receive,
retain and apply against such obligation the principal and interest otherwise
payable to such Lender hereunder until the Administrative Agent receives such
payment from such Lender or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Lender fails to make payment to
the Administrative Agent of any amount due under this SECTION 2.2(D), such
Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.3. RATE OPTIONS FOR ALL ADVANCES; MAXIMUM INTEREST PERIODS. The Swing
Line Loans shall be Floating Rate Advances or shall bear interest at such other
rate as may be agreed to between the Borrower and the Swing Line Bank at the
time of the making of any such Swing Line Loan. The Revolving Loans may be
Floating Rate Advances or Eurocurrency Rate Advances, or a combination thereof,
selected by the Borrower in accordance with SECTION 2.9. The Borrower may
select, in accordance with SECTION 2.9, Rate Options and Interest Periods
applicable to portions of the Revolving Loans; PROVIDED that there shall be no
more than eight (8) Interest Periods in effect with respect to all of the Loans
at any time.
2.4. OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
(A) OPTIONAL PAYMENTS. The Borrower may from time to time and at any time
upon at least one (1) Business Day's prior written notice repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate Advances
in an aggregate minimum amount of $1,000,000 and in integral multiples of
$100,000 in excess thereof. Eurocurrency Rate Advances may be voluntarily repaid
or prepaid prior to the last day of the applicable Interest Period, subject to
the indemnification
34
provisions contained in SECTION 4.4 in an aggregate minimum amount of $5,000,000
and in integral multiples of $1,000,000 in excess thereof, provided, that the
Borrower may not so prepay Eurocurrency Rate Advances unless it shall have
provided at least three (3) Business Days' prior written notice to the
Administrative Agent of such prepayment if the Agreed Currency is Dollars and
four (4) Business Days' prior written notice to the Administrative Agent if the
Agreed Currency is a Currency other than Dollars.
(B) MANDATORY PREPAYMENTS OF REVOLVING LOANS.
(i) If at any time and for any reason (other than fluctuations in
currency exchange rates) the Dollar Amount of the Revolving Credit
Obligations are greater than the Aggregate Revolving Loan Commitment, the
Borrower shall immediately make a mandatory prepayment of the Obligations
in an amount equal to such excess.
(ii) If at any time:
(x) the Dollar Amount of the Revolving Credit Obligations exceeds one
hundred five percent (105%) of the Aggregate Revolving Loan
Commitment, whether as a result of fluctuations in currency
exchange rates, or otherwise, the Borrower for the ratable
benefit of the Lenders shall immediately prepay Loans in an
aggregate amount such that after giving effect thereto the Dollar
Amount of the Revolving Credit Obligations is less than or equal
to the Aggregate Revolving Loan Commitment; or
(y) the Dollar Amount of the aggregate outstanding principal amount
of Revolving Loans made pursuant to SECTION 2.1(A) in a currency
other than Dollars exceeds $25,000,000, whether as a result of
fluctuations in currency exchange rates or otherwise, the
Borrower shall on such date prepay loans in an amount sufficient
to eliminate such excess.
2.5. REDUCTION OF COMMITMENTS. The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $5,000,000 with respect thereto and
integral multiples of $1,000,000 in excess of that amount with respect thereto
(unless the Aggregate Revolving Loan Commitment is
35
reduced in whole), upon at least three (3) Business Day's prior written notice
to the Administrative Agent, which notice shall specify the amount of any such
reduction; PROVIDED, HOWEVER, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the aggregate principal Dollar Amount of the
outstanding Revolving Credit Obligations. All accrued facility fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.6. METHOD OF BORROWING. Not later than 1:00 p.m. (Chicago time) on each
Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Administrative Agent
at its address specified pursuant to ARTICLE XIV, unless the Administrative
Agent has notified the Lenders that such Loan is to be made available to the
Borrower at the Administrative Agent's Eurocurrency Payment Office, in which
case each Lender shall make available its Loan or Loans, in funds immediately
available to the Administrative Agent at its Eurocurrency Payment Office, not
later than 1:00 p.m. (local time in the city of the Administrative Agent's
Eurocurrency Payment Office) in the Agreed Currency designated by the
Administrative Agent. The Administrative Agent will promptly make the funds so
received from the Lenders available to the Borrower at the Administrative
Agent's aforesaid address, as applicable.
2.7. METHOD OF SELECTING TYPES, CURRENCY AND INTEREST PERIODS FOR
ADVANCES. The Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period and Agreed Currency applicable to
each Advance from time to time. The Borrower shall give the Administrative Agent
irrevocable notice in substantially the form of EXHIBIT B hereto (a
"BORROWING/ELECTION NOTICE") not later than 12:00 noon (Chicago time) (a) on the
Borrowing Date of each Floating Rate Advance, and (b) three (3) Business Days
before the Borrowing Date for each Eurocurrency Rate Advance to be made in
Dollars, and (c) four (4) Business Days before the Borrowing Date for each
Eurocurrency Rate Advance to be made in any Agreed Currency other than Dollars,
specifying: (i) the Borrowing Date (which shall be a Business Day) of such
Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurocurrency Rate Advance, the Interest
Period and Agreed Currency applicable thereto. Each Floating Rate Advance and
all Obligations other than Loans shall bear interest from and including the date
of the making of such Advance, in the case of Loans, and the date such
Obligation is
36
due and owing in the case of such other Obligations, to (but not including) the
date of repayment thereof at the Floating Rate changing when and as such
Floating Rate changes. Changes in the rate of interest on that portion of any
Advance maintained as a Floating Rate Loan will take effect simultaneously with
each change in the Alternate Base Rate. Each Eurocurrency Rate Advance shall
bear interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurocurrency Rate Advance.
2.8. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance (other than an Advance
to repay Swing Line Loans or a Reimbursement Obligation) shall be in the minimum
amount of $5,000,000 (or the approximate Equivalent Amount of any Agreed
Currency other than Dollars) and in multiples of $1,000,000 (or the approximate
Equivalent Amount of any Agreed Currency other than Dollars) if in excess
thereof; PROVIDED, HOWEVER, that any Floating Rate Advance may be in the amount
of the unused Aggregate Revolving Loan Commitment.
2.9. METHOD OF SELECTING TYPES, CURRENCY AND INTEREST PERIODS FOR
CONVERSION AND CONTINUATION OF ADVANCES.
(A) RIGHT TO CONVERT. The Borrower may elect from time to time, subject to
the provisions of SECTION 2.3 and this SECTION 2.9, to convert all or any part
of a Loan of any Type into any other Type or Types of Loan; provided that any
conversion of any Eurocurrency Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans in Dollars shall
continue as Eurocurrency Rate Loans in Dollars until the end of the then
applicable Interest Period therefor, at which time such Eurocurrency Rate Loans
shall be automatically converted into Floating Rate Loans unless the Borrower
shall have given the Administrative Agent notice in accordance with SECTION
2.9(D) requesting that, at the end of such Interest Period, such Eurocurrency
Rate Loans continue as a Eurocurrency Rate Loan. Unless a Borrowing/Election
Notice shall have timely been given in accordance with the terms of this SECTION
2.9, Eurocurrency Rate Advances in an Agreed Currency other than Dollars shall
automatically continue as Eurocurrency Rate Advances in the same Agreed Currency
with an Interest Period of one (1) month.
37
(C) NO CONVERSION POST-DEFAULT; LIMITED CONVERSION POST-UNMATURED DEFAULT.
Notwithstanding anything to the contrary contained in SECTION 2.9(A) or SECTION
2.9(B), (x) no Loan may be converted into or continued as a Eurocurrency Rate
Loan (except with the consent of the Required Lenders) when any Default has
occurred and is continuing and (y) no Loan may be converted into or continued as
a Eurocurrency Rate Loan with an Interest Period greater than one month (except
with the consent of the Required Lenders) when any Unmatured Default has
occurred and is continuing.
(D) BORROWING/ELECTION NOTICE. The Borrower shall give the Administrative
Agent an irrevocable Borrowing/Election Notice of each conversion of a Floating
Rate Loan into a Eurocurrency Rate Loan or continuation of a Eurocurrency Rate
Loan not later than 12:00 noon (Chicago time) (x) three (3) Business Days prior
to the date of the requested conversion or continuation, with respect to any
Loan to be converted or continued as a Eurocurrency Rate Loan in Dollars, and
(y) four (4) Business Days prior to the date of the requested conversion or
continuation with respect to any Loan to be converted or continued as a
Eurocurrency Rate Loan in an Agreed Currency other than Dollars, specifying: (i)
the requested date (which shall be a Business Day) of such conversion or
continuation; (ii) the amount and Type of the Loan to be converted or continued;
and (iii) the amount of Eurocurrency Rate Loan(s) into which such Loan is to be
converted or continued, the Agreed Currency, and the duration of the Interest
Period applicable thereto.
(E) LIMITATIONS ON CONVERSION. Notwithstanding anything herein to the
contrary, at the election of the Borrower under this SECTION 2.9, Eurocurrency
Rate Advances in an Agreed Currency may be converted and/or continued as
Eurocurrency Rate Advances only in the same Agreed Currency.
2.10. DEFAULT RATE. After the occurrence and during the continuance of a
Default, at the option of the Administrative Agent or at the direction of the
Required Lenders, the interest rate(s) applicable to the Obligations shall be
equal to the Floating Rate hereunder PLUS two percent (2.0%) per annum, and the
fee described in SECTION 3.8(A) shall be equal to the then Applicable L/C Fee
Percentage PLUS two percent (2.0%) per annum.
2.11. METHOD OF PAYMENT. (a) All payments of principal, interest, fees,
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in SECTION 2.14(E)), in
immediately
38
available funds to the Administrative Agent (i) at the Administrative Agent's
address specified pursuant to ARTICLE XIV with respect to Advances or other
Obligations denominated in Dollars and (ii) at the Administrative Agent's
Eurocurrency Payment Office with respect to any Advance or other Obligations
denominated in an Agreed Currency other than Dollars, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 1:00 p.m. (Chicago time) on the date
when due and shall be made ratably among the Lenders (unless such amount is not
to be shared ratably in accordance with the terms hereof). Each Advance shall be
repaid or prepaid in the Agreed Currency in which it was made in the amount
borrowed and interest payable thereon shall also be paid in such currency. Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds which the Administrative Agent received at its address
specified pursuant to ARTICLE XIV or at any Lending Installation specified in a
notice received by the Administrative Agent from such Lender. Any payment owing
by the Borrower to a Lender shall be deemed to have been paid to such Lender by
the Borrower upon the Administrative Agent's receipt of such payment from the
Borrower. The Borrower authorizes the Administrative Agent to charge the account
of the Borrower maintained with Bank One for each payment of principal,
interest, fees, commissions and L/C Obligations as it becomes due hereunder.
Each reference to the Administrative Agent in this SECTION 2.11 shall also be
deemed to refer, and shall apply equally, to each Issuing Bank, in the case of
payments required to be made by the Borrower to any Issuing Bank pursuant to
ARTICLE III.
(b) Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such Agreed
Currency with the result that different types of such Agreed Currency (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or the Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the Borrower hereunder in
such currency shall be made to the Administrative Agent in such amount and such
type of the New Currency or Dollars as shall be equivalent to the amount of such
payment otherwise due hereunder in the Original Currency. In addition,
notwithstanding the foregoing provisions of this Section, if,
39
after the making of any Advance in any currency other than Dollars, the Borrower
is not able to make payment to the Administrative Agent for the account of the
Lenders in the type of currency in which such Advance was made because of the
imposition of any such currency control or exchange regulation, then such
Advance shall instead be repaid when due in Dollars in a principal amount equal
to the Dollar Amount (as of the date of repayment) of such Advance.
2.12. EVIDENCE OF DEBT.
(A) LOAN ACCOUNT. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness
of the Borrower to such Lender owing to such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(B) REGISTER. The Register maintained by the Administrative Agent pursuant
to SECTION 13.3(D) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, (iii) the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto pursuant to SECTION
13.3, (iv) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(C) ENTRIES IN LOAN ACCOUNT AND REGISTER. The entries made in the Loan
Account, the Register and the other accounts maintained pursuant to subsections
(A) or (B) of this Section shall be conclusive and binding for all purposes,
absent manifest error, gross negligence or willful misconduct, unless the
Borrower objects to information contained in the Loan Accounts, the Register or
the other accounts within forty-five (45) days of the Borrower's receipt of such
information; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms
of this Agreement.
40
(D) NOTES UPON REQUEST. Any Lender may request that the Loans made by it
each be evidenced by a promissory note in substantially the form of EXHIBIT J to
evidence such Lender's Revolving Loans. In such event, the Borrower shall
prepare, execute and deliver to such Lender such a promissory note for such
Loans payable to the order of such Lender. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to SECTION 13.3) be represented by one or more promissory
notes in such form payable to the order of the payee named therein.
2.13. TELEPHONIC NOTICES. The Borrower authorizes the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation, signed by an Authorized Officer (or
such other officer designated in writing to the Administrative Agent by an
Authorized Officer so long as such other officer is also permitted to make such
delivery under the Borrower's organizational documents), if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice.
If the written confirmation differs in any material respect from the action
taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error, gross
negligence or willful misconduct. In case of disagreement concerning such
notices, if the Administrative Agent has recorded telephonic borrowing notices,
such recordings will be made available to the Borrower upon the Borrower's
request therefor.
2.14. PROMISE TO PAY; INTEREST AND FACILITY FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES.
(A) PROMISE TO PAY. The Borrower unconditionally promises to pay when due
the principal amount of each Loan incurred by it and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in accordance
with the terms of this Agreement and the other Loan Documents.
(B) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or otherwise). Interest
accrued on each Fixed-Rate Loan shall be
41
payable on the last day of its applicable Interest Period, on any date on which
such Fixed-Rate Loan is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Fixed-Rate Loan having an Interest Period
longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued on the
principal balance of all other Obligations shall be payable in arrears (i) on
each Payment Date, commencing on the first such Payment Date following the
incurrence of such Obligations, (ii) upon repayment thereof in full or in part,
and (iii) if not theretofore paid in full, at the time such other Obligations
become due and payable (whether by acceleration or otherwise).
(C) FEES.
(i) The Borrower shall pay to the Administrative Agent, for the account
of the Lenders in accordance with their Pro Rata Shares, from and after the
date of this Agreement until the date on which the Aggregate Revolving Loan
Commitment shall be terminated in whole, a facility fee accruing at the
rate of the then Applicable Facility Fee Percentage, on the amount of the
Aggregate Revolving Loan Commitment in effect on the date of such payment.
All such facility fees payable under this clause (C)(i) shall be payable
quarterly in arrears on each Payment Date occurring after the date of this
Agreement (with the first such payment being calculated for the period from
the Closing Date and ending on March 31, 2003), and, in addition, on the
date on which the Aggregate Revolving Loan Commitment shall be terminated
in whole.
(ii) The Borrower agrees to pay to the Administrative Agent or the
Arranger the fees set forth in the letter agreement between the
Administrative Agent, the Arranger and the Borrower dated January 13, 2003,
payable at the times and in the amounts set forth therein.
(D) INTEREST AND FEE BASIS; APPLICABLE EUROCURRENCY MARGIN, APPLICABLE L/C
FEE PERCENTAGE AND APPLICABLE FACILITY FEE PERCENTAGE.
(i) Interest on all Eurocurrency Rate Loans and on all fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest
on all Floating Rate Loans shall be calculated for actual days elapsed on
the basis of a 365-, or when appropriate 366-, day year. Interest shall be
payable for the day an Obligation is incurred but not for the day of any
payment on the amount
42
paid if payment is received prior to 2:00 p.m. (local time) at the place of
payment. If any payment of principal of or interest on a Loan or any
payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall
be included in computing interest, fees and commissions in connection with
such payment.
(ii) The Applicable Eurocurrency Margin, Applicable L/C Fee Percentage
and Applicable Facility Fee Percentage shall be determined on the basis of
the then applicable Leverage Ratio as described in this SECTION
2.14(D)(ii), from time to time by reference to the following table:
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
(LEVERAGE RATIO IS (LEVERAGE RATIO IS (LEVERAGE RATIO IS
(LEVERAGE RATIO IS GREATER THAN 1.0 TO GREATER THAN 1.5 TO GREATER THAN 2.0 TO (LEVERAGE RATIO IS
LESS THAN OR EQUAL 1.0 AND LESS THAN OR 1.0 AND LESS THAN OR 1.0 AND LESS THAN OR GREATER THAN
TO 1.0 TO 1.0) EQUAL TO 1.5 TO 1.0) EQUAL TO 2.0 TO 1.0) EQUAL TO 2.5 TO 1.0) 2.5 TO 1.0 )
----------------------------------------------------------------------------------------------------------------------------------
EUROCURRENCY MARGIN
AND L/C FEE
PERCENTAGE 0.50% 0.60% 0.675% .775% 1.00%
----------------------------------------------------------------------------------------------------------------------------------
FACILITY FEE
PERCENTAGE 0.125% 0.15% 0.20% 0.225% 0.25%
----------------------------------------------------------------------------------------------------------------------------------
For purposes of this SECTION 2.14(D)(ii), the Leverage Ratio shall be calculated
as provided in SECTION 7.4(A). Upon receipt of the financial statements
delivered pursuant to SECTIONS 7.1(A)(i) and (ii), as applicable, the Applicable
Eurocurrency Margin, the Applicable L/C Fee Percentage and Applicable Facility
Fee Percentage shall be adjusted, such adjustment being effective five (5)
Business Days following the day such financial statements and compliance
certificates are required to be delivered pursuant to SECTION 7.1(A); PROVIDED,
that if the
43
Borrower shall not have timely delivered its financial statements and compliance
certificates in accordance with the applicable provisions of SECTION 7.1(A), and
such failure continues for five (5) days after notice from the Administrative
Agent to the Borrower, then, at the discretion of the Required Lenders,
commencing on the date upon which such financial statements and compliance
certificates should have been delivered and continuing until five (5) days after
such financial statements and compliance certificates are actually delivered, it
shall be assumed for purposes of determining the Applicable Eurocurrency Margin,
Applicable L/C Fee Percentage and Applicable Facility Fee Percentage that the
Leverage Ratio was greater than 2.5 to 1.0 and Level V pricing shall be
applicable.
(iii) Notwithstanding anything herein to the contrary, from the
Closing Date through the fifth (5th) Business Day following the day
financial statements are required to be delivered pursuant to SECTION
7.1(A) for the fiscal quarter ending March 31, 2003, the Applicable
Eurocurrency Margin, the Applicable L/C Percentage and the Applicable
Facility Fee Percentage shall be determined based upon a Leverage Ratio
equal to Level II.
(E) TAXES.
(i) Any and all payments by the Borrower hereunder (whether in respect
of principal, interest, fees or otherwise) shall be made free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings or any interest, penalties or
liabilities with respect thereto imposed by any Governmental Authority
including those arising after the date hereof as a result of the adoption
of or any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but
excluding, in the case of each Lender and the Administrative Agent, such
taxes (including income taxes, franchise taxes and branch profit taxes) as
are imposed on or measured by such Lender's or the Administrative Agent's,
as the case may be, net income or similar taxes imposed by the United
States of America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the case may
be, is organized or maintains a Lending Installation (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings, and liabilities
which
44
the Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments, the
Loans or the Letters of Credit being hereinafter referred to as "TAXES").
If the Borrower or the Administrative Agent shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums payable
under this SECTION 2.14(E)) such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had
no such deductions or withholdings been made, (ii) the Borrower shall make
such deductions or withholdings, and (iii) the Borrower shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law. If any Tax, including, without
limitation, any withholding tax, of the United States of America or any
other Governmental Authority shall be or become applicable (y) after the
date of this Agreement, to such payments by the Borrower made to the
Lending Installation or any other office that a Lender may claim as its
Lending Installation, or (z) after such Lender's selection and designation
of any other Lending Installation, to such payments made to such other
Lending Installation, such Lender shall use reasonable efforts to make,
fund and maintain its Loans through another Lending Installation of such
Lender in another jurisdiction so as to reduce the Borrower's liability
hereunder, if the making, funding or maintenance of such Loans through such
other Lending Installation of such Lender does not, in the reasonable
judgment of such Lender, otherwise adversely and materially affect such
Loans, or obligations under the Revolving Loan Commitments of such Lender.
(ii) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder, from the
issuance of Letters of Credit hereunder, or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the other
Loan Documents, the Revolving Loan Commitments, the Loans or the Letters of
Credit (hereinafter referred to as "OTHER TAXES").
45
(iii) The Borrower indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental Authority
on amounts payable under this SECTION 2.14(E)) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within thirty (30) days after
the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount payable
to any Lender or the Administrative Agent under this SECTION 2.14(E)
submitted to the Borrower and the Administrative Agent (if a Lender is so
submitting) by such Lender or the Administrative Agent shall show in
reasonable detail the amount payable and the calculations used to determine
such amount and shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. With respect to such deduction or
withholding for or on account of any Taxes and to confirm that all such
Taxes have been paid to the appropriate Governmental Authorities, the
Borrower shall promptly (and in any event not later than thirty (30) days
after receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
judgment of such Lender or the Administrative Agent) to establish any tax
credit to which such Lender or the Administrative Agent may be entitled. In
the event such Lender or the Administrative Agent receives any such tax
credit, such Lender or the Administrative Agent shall pay to the Borrower
such amount (if any) not exceeding the increased amount paid by the
Borrower to, or on behalf of, such Lender or the Administrative Agent that
is allocable to such increased amount. Any of the Administrative Agent or
any Lender requesting compensation under this SECTION 2.14(E) shall use its
reasonable efforts to notify the Borrower (with a copy to the
Administrative Agent) in writing of the event giving rise to such demand
for compensation not more than ninety (90) days following the date upon
which the responsible account officer for the Administrative Agent or the
applicable Lender knows of such event. Such written demand shall be
rebuttably presumed correct for all purposes. If any Lender or the
Administrative Agent demands compensation under this SECTION 2.14(E) more
than ninety (90) days following the
46
date upon which a responsible account officer for such Lender or the
Administrative Agent knows that Taxes or Other Taxes have begun to accrue
with respect to which such Lender or the Administrative Agent is entitled
to compensation under this SECTION 2.14(E), then any Taxes or Other Taxes
attributable to the period prior to the ninety (90) day period immediately
preceding the date on which such Lender or the Administrative Agent
provided such notice and demand for compensation shall be excluded from the
indemnity obligations of the Borrower under this SECTION 2.14(E).
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by the Borrower, the Borrower shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 2.14(E) shall survive the payment in full of all
Obligations hereunder, the termination of the Letters of Credit and the
termination of this Agreement for a period of one year.
(vi) Each Lender (including any Replacement Lender or Purchaser) that
is not created or organized under the laws of the United States of America
or a political subdivision thereof (each a "NON-U.S. LENDER") shall deliver
to the Borrower and the Administrative Agent on or before the Closing Date,
or, if later, the date on which such Lender becomes a Lender pursuant to
SECTION 13.3 hereof (and from time to time thereafter upon the request of
the Borrower or the Administrative Agent, but only for so long as such
Non-U.S. Lender is legally entitled to do so), either (1) two (2) duly
completed copies of either (A) IRS Form W-8BEN, or (B) IRS Form W-8ECI, or
in either case an applicable successor form; or (2) in the case of a
Non-U.S. Lender that is not legally entitled to deliver the forms listed in
CLAUSE (vi)(1), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (A) a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code, or (C) a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code (such
47
certificate, an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed
copies of IRS Form W-8BEN or applicable successor form. Each such Lender
further agrees to deliver to the Borrower and the Administrative Agent from
time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender in a form satisfactory to the
Borrower and the Administrative Agent, before or promptly upon the
occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Borrower and the Administrative Agent
pursuant to this SECTION 2.14(E)(vi). Further, each Lender which delivers a
form or certificate pursuant to this CLAUSE (vi) covenants and agrees to
deliver to the Borrower and the Administrative Agent within fifteen (15)
days prior to the expiration of such form, for so long as this Agreement is
still in effect, another such certificate and/or two (2) accurate and
complete original newly-signed copies of the applicable form (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder).
Each Lender shall promptly furnish to the Borrower and the
Administrative Agent such additional documents as may be reasonably
required by the Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld. Notwithstanding any other provision of this SECTION
2.14(E), the Borrower shall not be obligated to gross up any payments to
any Lender pursuant to SECTION 2.14(E)(i), or to indemnify any Lender
pursuant to SECTION 2.14(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure of
such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to SECTION
2.14(E)(vi), (y) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or the
information or certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (z) the Lender
designating a successor Lending Installation at which it maintains its
Loans which has the effect of causing such Lender to become obligated for
tax payments in excess of those in effect immediately prior to such
designation; PROVIDED, HOWEVER, that the Borrower shall be obligated to
gross up any payments to any such Lender pursuant to SECTION 2.14(E)(i),
and to indemnify any
48
such Lender pursuant to SECTION 2.14(E)(iii), in respect of United States
federal withholding taxes if (x) any such failure to deliver a form or
forms or an Exemption Certificate or the failure of such form or forms or
exemption certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable
law or any interpretation of any of the foregoing occurring after the date
such Lender became a party hereto, which change rendered such Lender no
longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S.
federal withholding tax, or rendered the information or the certifications
made in such form or forms or Exemption Certificate untrue or inaccurate in
any material respect, (ii) the redesignation of the Lender's Lending
Installation was made at the request of the Borrower or (iii) the
obligation to gross up payments to any such Lender pursuant to SECTION
2.14(E)(i), or to indemnify any such Lender pursuant to SECTION
2.14(E)(iii), is with respect to a Purchaser that becomes a Purchaser as a
result of an assignment made at the request of the Borrower.
(vii) Upon the request, and at the expense of the Borrower, each Lender
to which the Borrower is required to pay any additional amount pursuant to
this SECTION 2.14(E), shall reasonably afford the Borrower the opportunity
to contest, and shall reasonably cooperate with the Borrower in contesting,
the imposition of any Tax giving rise to such payment; PROVIDED, that (i)
such Lender shall not be required to afford the Borrower the opportunity to
so contest unless the Borrower shall have confirmed in writing to such
Lender its obligation to pay such amounts pursuant to this Agreement; and
(ii) the Borrower shall reimburse such Lender for its attorneys' and
accountants' fees and disbursements incurred in so cooperating with the
Borrower in contesting the imposition of such Tax; PROVIDED, HOWEVER, that
notwithstanding the foregoing, no Lender shall be required to afford the
Borrower the opportunity to contest, or cooperate with the Borrower in
contesting, the imposition of any Taxes, if such Lender in good faith
determines that to do so would have an adverse effect on it.
2.15. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE
REVOLVING LOAN COMMITMENT REDUCTIONS.
49
Promptly after receipt thereof, the Administrative Agent will notify each Lender
of the contents of each Aggregate Revolving Loan Commitment reduction notice,
Borrowing/Election Notice, and repayment notice received by it hereunder. The
Administrative Agent will notify each Lender of the interest rate and Agreed
Currency applicable to each Eurocurrency Rate Loan promptly upon determination
of such interest rate and Agreed Currency and will give each Lender prompt
notice of each change in the Alternate Base Rate.
2.16. LENDING INSTALLATIONS. Each Lender may book its Loans or Letters of
Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time upon reasonable written notice thereof to
the Borrower. All terms of this Agreement shall apply to any such Lending
Installation. Each Lender may, by written or facsimile notice to the
Administrative Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments and/or
payments of L/C Obligations are to be made.
2.17. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment by
the Borrower, the interest rate applicable to the relevant Loan.
2.18. TERMINATION DATE. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement, until (A)
all of the Obligations (other than
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contingent indemnity obligations) shall have been fully paid and satisfied in
cash, (B) all financing arrangements among the Borrower and the Lenders shall
have been terminated and (C) all of the Letters of Credit shall have expired,
been canceled, terminated or cash collateralized in accordance with SECTION
3.11, all of the rights and remedies under this Agreement and the other Loan
Documents shall survive.
2.19. REPLACEMENT OF CERTAIN LENDERS. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans pursuant to SECTION 2.2(D), which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured, (ii)
requested compensation from the Borrower under SECTIONS 2.14(E), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being requested generally by the other Lenders, (iii) delivered a
notice pursuant to SECTION 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Borrower for reasons not generally applicable to
the other Lenders, (iv) invoked SECTION 10.2, or (v) failed to consent to a
waiver or amendment hereto which has otherwise been consented to by the Required
Lenders, then, in any such case, the Borrower or the Administrative Agent may
make written demand on such Affected Lender (with a copy to the Administrative
Agent in the case of a demand by the Borrower and a copy to the Borrower in the
case of a demand by the Administrative Agent) for the Affected Lender to assign,
and such Affected Lender shall use commercially reasonable efforts to assign
pursuant to one or more duly executed Assignment Agreements five (5) Business
Days after the date of such demand, to one or more financial institutions that
comply with the provisions of SECTION 13.3(A) which the Borrower or the
Administrative Agent, as the case may be, shall have engaged for such purpose
("REPLACEMENT LENDER"), all of such Affected Lender's rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Revolving Loan Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit and Swing Line Loans hereunder) in
accordance with SECTION 13.3. The Administrative Agent agrees, upon the
occurrence of such events with respect to an Affected Lender and upon the
written request of the Borrower, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute one or more of such
assignment agreements as
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attorney-in-fact for any Affected Lender failing to execute and deliver the same
within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
SECTIONS 2.14(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under SECTION 2.14(C) in the event of any replacement of
any Affected Lender under CLAUSE (ii) or CLAUSE (iii) of this SECTION 2.19;
PROVIDED that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of SECTIONS 2.14(E), 4.1, 4.2, 4.4, and 10.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under SECTION 11.8 for such amounts, obligations and liabilities as
are due and payable up to and including (but not after) the date such Affected
Lender is replaced pursuant hereto. Upon the replacement of any Affected Lender
pursuant to this SECTION 2.19, the provisions of SECTION 9.2 shall continue to
apply with respect to Loans which are then outstanding with respect to which the
Affected Lender failed to fund its Pro Rata Share and which failure has not been
cured.
2.20. JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due from the Borrower hereunder in the
currency expressed to be payable herein (the "SPECIFIED CURRENCY") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main office in Chicago, Illinois on the Business Day preceding that on
which the final, non-appealable judgment is given. The obligations of the
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified
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currency with such other currency. If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be, in
the specified currency and (b) any amounts shared with other Lenders as a result
of allocations of such excess as a disproportionate payment to such Lender under
SECTION 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the Borrower.
2.21. MARKET DISRUPTION; DENOMINATION OF AMOUNTS IN DOLLARS; DOLLAR
EQUIVALENT OF REIMBURSEMENT OBLIGATIONS.
(A) MARKET DISRUPTION. Notwithstanding the satisfaction of all conditions
referred to in this ARTICLE II with respect to any Advance in any Agreed
Currency other than Dollars, if there shall occur on or prior to the date of
such Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the reasonable opinion of the Borrower, the Administrative Agent or the
Required Lenders make it impracticable for the Eurocurrency Rate Loans
comprising such Advance to be denominated in the Agreed Currency, specified by
the Borrower, then the Administrative Agent shall forthwith give notice thereof
to the Borrower, and the Lenders, and such Eurocurrency Rate Loans shall not be
denominated in such currency but shall be made on such Borrowing Date in
Dollars, in an aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related Borrowing Notice, as
Floating Rate Loans, unless the Borrower notifies the Administrative Agent at
least one (1) Business Day before such date that (i) it elects not to borrow on
such date or (ii) it elects to borrow on such date in a different Agreed
Currency, in which the denomination of such Loans would in the opinion of the
Administrative Agent and the Required Lenders be practicable and in an aggregate
principal amount equal to the Dollar Amount of the aggregate principal amount
specified in the related Borrowing Notice.
(B) CALCULATION OF AMOUNTS. Except as set forth below, all amounts
referenced in this ARTICLE II shall be calculated using the Dollar Amount
determined based upon the Equivalent
53
Amount in effect as of the date of any determination thereof; provided, however,
that to the extent the Borrower shall be obligated hereunder to pay in Dollars
any Advance denominated in a currency other than Dollars, such amount shall be
paid in Dollars using the Dollar Amount of the Advance (calculated based upon
the Equivalent Amount in effect on the date of payment thereof) and in the event
that the Borrower does not reimburse the Administrative Agent and the Lenders
are required to fund a purchase of a participation in such Advance, such
purchase shall be made in Dollars in an amount equal to the Dollar Amount of
such Advance (calculated based upon the Equivalent Amount in effect on the date
of payment thereof). Notwithstanding anything herein to the contrary, the full
risk of currency fluctuations shall be borne by the Borrower and the Borrower
agrees to indemnify and hold harmless each Issuing Bank, the Administrative
Agent and the Lenders from and against any loss resulting from any borrowing
denominated in a currency other than in Dollars and for which the Lenders are
not reimbursed on the day of such borrowing as it relates to the Borrower's
respective obligations.
2.22. INCREASE OF AGGREGATE REVOLVING LOAN COMMITMENT. (A) At any time and
from time to time, the Borrower may request (in consultation with the
Administrative Agent) that the Aggregate Revolving Loan Commitment be increased
without the prior written consent of all of the Lenders, PROVIDED, THAT, (a) the
Aggregate Revolving Loan Commitment shall at no time exceed $175,000,000; (b)
the Borrower shall not previously have reduced the Aggregate Revolving Loan
Commitment; and (c) the Borrower shall not be entitled to make such request more
than twice. Such request shall be made in a written notice given to the
Administrative Agent and the Lenders by the Borrower not less than twenty (20)
Business Days prior to the proposed effective date of such increase, which
notice (a "COMMITMENT INCREASE NOTICE") shall specify the amount of the proposed
increase in the Aggregate Revolving Loan Commitment and the proposed effective
date of such increase. In the event of such a Commitment Increase Notice, each
of the Lenders shall be given the opportunity to participate in the requested
increase ratably in proportions that their respective Revolving Loan Commitments
bear to the Aggregate Revolving Loan Commitment. No Lender shall have any
obligation to increase its Revolving Loan Commitment pursuant to a Commitment
Increase Notice. On or prior to the date that is ten (10) Business Days after
receipt of the Commitment Increase Notice, each Lender shall submit to the
Administrative Agent a notice indicating the maximum amount by which it is
willing to increase its Revolving Loan Commitment
54
in connection with such Commitment Increase Notice (any such notice to the
Administrative Agent being herein a "LENDER INCREASE NOTICE"). Any Lender which
does not submit a Lender Increase Notice to the Administrative Agent prior to
the expiration of such ten (10) Business Day period shall be deemed to have
denied any increase in its Revolving Loan Commitment. In the event that the
increases of Revolving Loan Commitments set forth in the Lender Increase Notices
exceed the amount requested by the Borrower in the Commitment Increase Notice,
the Administrative Agent and the Arranger shall have the right, in consultation
with the Borrower, to allocate the amount of increases necessary to meet the
Borrower's Commitment Increase Notice. In the event that the Lender Increase
Notices are less than the amount requested by the Borrower, not later than three
(3) Business Days prior to the proposed effective date the Borrower may notify
the Administrative Agent of any financial institution that shall have agreed to
become a "Lender" party hereto (a "PROPOSED NEW LENDER") in connection with the
Commitment Increase Notice. Any Proposed New Lender shall be subject to the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to
commit to the shortfall from the Lender Increase Notices, then the Borrower
shall be deemed to have reduced the amount of its Commitment Increase Notice to
the aggregate amount set forth in the Lender Increase Notices. Based upon the
Lender Increase Notices, any allocations made in connection therewith and any
notice regarding any Proposed New Lender, if applicable, the Administrative
Agent shall notify the Borrower and the Lenders on or before the Business Day
immediately prior to the proposed effective date of the amount of each Lender's
and Proposed New Lenders' Revolving Loan Commitment (the "EFFECTIVE COMMITMENT
AMOUNT") and the amount of the Aggregate Revolving Loan Commitment, which amount
shall be effective on the following Business Day. Any increase in the Aggregate
Revolving Loan Commitment shall be subject to the following conditions
precedent: (i) the Borrower shall have obtained the consent thereto of any
guarantor of the Obligations and its reaffirmation of the Loan Document(s), if
any, executed by it, which consent and reaffirmation shall be in writing and in
form and substance reasonably satisfactory to the Administrative Agent, (ii) as
of the date of the Commitment Increase Notice and as of the proposed effective
date of the increase in the Aggregate Revolving Loan Commitment, all
representations and warranties shall be true and correct in all material
respects as though made on such date and no event shall have occurred and then
be continuing which constitutes a Default or Unmatured
55
Default, (iii) the Borrower, the Administrative Agent and each Proposed New
Lender or Lender that shall have agreed to provide a "Revolving Loan Commitment"
in support of such increase in the Aggregate Revolving Loan Commitment shall
have executed and delivered a Commitment and Acceptance ("COMMITMENT AND
ACCEPTANCE") substantially in the form of EXHIBIT M hereto, and (iv) the
Borrower and the Proposed New Lender shall otherwise have executed and delivered
such other instruments and documents as may be required under ARTICLE V or that
the Administrative Agent shall have reasonably requested in connection with such
increase. In the event any provision of a Commitment and Acceptance shall be
inconsistent with any provision of this Agreement, then this Agreement shall
govern. If any fee shall be charged by the Lenders in connection with any such
increase, such fee shall be in accordance with then prevailing market
conditions, which market conditions shall have been reasonably documented by the
Administrative Agent to the Borrower. Upon satisfaction of the conditions
precedent to any increase in the Aggregate Revolving Loan Commitment, the
Administrative Agent shall promptly advise the Borrower and each Lender of the
effective date of such increase. Upon the effective date of any increase in the
Aggregate Revolving Loan Commitment that is provided by a Proposed New Lender,
such Proposed New Lender shall be a party to this Agreement as a Lender and
shall have the rights and obligations of a Lender hereunder. Nothing contained
herein shall constitute, or otherwise be deemed to be, a commitment on the part
of any Lender to increase its Revolving Loan Commitment hereunder at any time.
(B) For purposes of this SECTION 2.22(B), (i) the term "BUYING LENDER(S)"
shall mean (a) each Lender the Effective Commitment Amount of which is greater
than its Revolving Loan Commitment prior to the effective date of any increase
in the Aggregate Revolving Loan Commitment and (b) each Proposed New Lender that
is allocated an Effective Commitment Amount in connection with any Commitment
Increase Notice, and (ii) the term "SELLING LENDER(S)" shall mean each Lender
whose Revolving Loan Commitment is not being increased from that in effect prior
to such increase in the Aggregate Revolving Loan Commitment. Effective on the
effective date of any increase in the Aggregate Revolving Loan Commitment
pursuant to SECTION 2.22(A) above, each Selling Lender hereby sells, grants,
assigns and conveys to each Buying Lender, without recourse, warranty, or
representation of any kind, except as specifically provided herein, an undivided
percentage in such Selling Lender's right, title and interest in and to its
outstanding Loans in the respective Dollar Amounts and percentages necessary so
that,
56
from and after such sale, each such Selling Lender's outstanding Loans shall
equal such Selling Lender's Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the outstanding Loans. Effective on the effective date of
the increase in the Aggregate Revolving Loan Commitment pursuant to SECTION
2.22(A) above, each Buying Lender hereby purchases and accepts such grant,
assignment and conveyance from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the portion of the outstanding
Loans purchased hereby shall equal the respective Dollar Amount necessary so
that, from and after such payments, each Buying Lender's outstanding Loans shall
equal such Buying Lender's Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the outstanding Loans. Such amount shall be payable on
the effective date of the increase in the Aggregate Revolving Loan Commitment by
wire transfer of immediately available funds to the Administrative Agent. The
Administrative Agent, in turn, shall wire transfer any such funds received to
the Selling Lenders, in same day funds, for the sole account of the Selling
Lenders. Each Selling Lender hereby represents and warrants to each Buying
Lender that such Selling Lender owns the Loans being sold and assigned hereby
for its own account and has not sold, transferred or encumbered any or all of
its interest in such Loans, except for participations which will be extinguished
upon payment to Selling Lender of an amount equal to the portion of the
outstanding Loans being sold by such Selling Lender. Each Buying Lender hereby
acknowledges and agrees that, except for each Selling Lender's representations
and warranties contained in the foregoing sentence, each such Buying Lender has
entered into its Commitment and Acceptance with respect to such increase on the
basis of its own independent investigation and has not relied upon, and will not
rely upon, any explicit or implicit written or oral representation, warranty or
other statement of the Lenders or the Administrative Agent concerning the
authorization, execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents. The
Borrower hereby agrees to compensate each Selling Lender for all losses,
expenses and liabilities incurred by each Lender in connection with the sale and
assignment of any Eurocurrency Rate Loan hereunder on the terms and in the
manner as set forth in ARTICLE IV.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1. OBLIGATION TO ISSUE LETTERS OF CREDIT. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower
57
herein set forth, each Issuing Bank hereby agrees to issue for the account of
the Borrower through such Issuing Bank's branches as it and the Borrower may
jointly agree, one or more Letters of Credit denominated in Dollars or an Agreed
Currency in accordance with this ARTICLE III, from time to time during the
period, commencing on the Closing Date and ending on the Business Day prior to
the Termination Date.
3.2. TRANSITIONAL LETTERS OF CREDIT. SCHEDULE 3.2 contains a schedule of
certain letters of credit issued for the account of the Borrower prior to the
Closing Date. Subject to the satisfaction of the conditions contained in
SECTIONS 5.1 and 5.2, from and after the Closing Date such letters of credit
shall be deemed to be Letters of Credit issued pursuant to this ARTICLE III.
3.3. TYPES AND AMOUNTS. No Issuing Bank shall have any obligation to and
no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date of issuance (or
amendment), before or after giving effect to the Letter of Credit requested
hereunder, (i) the Dollar Amount of the Revolving Credit Obligations at such
time would exceed the Aggregate Revolving Loan Commitment at such time, or (ii)
the aggregate outstanding Dollar Amount of the L/C Obligations would exceed
$15,000,000; or
(B) issue (or amend) any Letter of Credit which has an expiration date
later than the date which is the earlier of (x) one (1) year after the date of
issuance thereof or (y) five (5) Business Days immediately preceding the
Revolving Credit Termination Date; PROVIDED, that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which in no event shall extend beyond the date referred to in clause
(y) above.
3.4. CONDITIONS. In addition to being subject to the satisfaction of the
conditions contained in SECTIONS 5.1 and 5.2, the obligation of an Issuing Bank
to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(A) the Borrower shall have delivered to the applicable Issuing Bank (and,
if the Issuing Bank is a Lender other than Bank One, with a copy to the
Administrative Agent) at such times and in such manner as such Issuing Bank may
reasonably prescribe, a request for issuance of such Letter of Credit in
substantially the form of EXHIBIT C hereto (each such request a
58
"REQUEST FOR LETTER OF Credit"), duly executed applications for such Letter of
Credit, and such other documents, instructions and agreements as may be required
pursuant to the terms thereof (all such applications, documents, instructions,
and agreements being referred to herein as the "L/C DOCUMENTS"), and the
proposed Letter of Credit shall be reasonably satisfactory to such Issuing Bank
as to form and content; and
(B) as of the date of issuance no order, judgment or decree of any court,
arbitrator or Governmental Authority shall purport by its terms to enjoin or
restrain the applicable Issuing Bank from issuing such Letter of Credit and no
law, rule or regulation applicable to such Issuing Bank and no request or
directive (whether or not having the force of law) from a Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit or request that such
Issuing Bank refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
(C) In the event of any conflict between the terms of this Agreement and
the terms of any application for a Letter of Credit, the terms of this Agreement
shall control.
3.5. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(A) Subject to the terms and conditions of this ARTICLE III and provided
that the applicable conditions set forth in SECTIONS 5.1 and 5.2 hereof have
been satisfied, the applicable Issuing Bank shall, on the requested date, issue
a Letter of Credit on behalf of the Borrower in accordance with such Issuing
Bank's usual and customary business practices and, in this connection, such
Issuing Bank may assume that the applicable conditions set forth in SECTION 5.2
hereof have been satisfied unless it shall have received notice to the contrary
from the Administrative Agent or a Lender or has knowledge that the applicable
conditions have not been met.
(B) The applicable Issuing Bank shall give the Administrative Agent written
or telex notice, or telephonic notice confirmed promptly thereafter in writing,
of the issuance of a Letter of Credit; provided, however, that the failure to
provide such notice shall not result in any liability on the part of such
Issuing Bank.
(C) No Issuing Bank shall extend or amend any Letter of Credit unless the
requirements of this SECTION 3.5 are met as though a new Letter of Credit was
being requested and issued.
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3.6. LETTER OF CREDIT PARTICIPATION. On the date of this Agreement with
respect to the Letters of Credit identified on SCHEDULE 3.2 and immediately upon
the issuance of each Letter of Credit hereunder, each Lender with a Pro Rata
Share shall be deemed to have automatically, irrevocably and unconditionally
purchased and received from the applicable Issuing Bank an undivided interest
and participation in and to such Letter of Credit, the obligations of the
Borrower in respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C INTEREST") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Share. Each Issuing Bank will notify each Lender promptly upon
presentation to it of an L/C Draft or upon any other draw under a Letter of
Credit. On or before the Business Day on which an Issuing Bank makes payment of
each such L/C Draft or, in the case of any other draw on a Letter of Credit, on
demand by the Administrative Agent or the applicable Issuing Bank, each Lender
shall make payment to the Administrative Agent, for the account of the
applicable Issuing Bank, in immediately available funds in the Agreed Currency
in an amount equal to such Lender's Pro Rata Share of the Dollar Amount of such
payment or draw. The obligation of each Lender to reimburse the Issuing Banks
under this SECTION 3.6 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this SECTION 3.6, the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that nothing
contained in this sentence shall relieve such Lender of its obligation to
reimburse the applicable Issuing Bank for such amount in accordance with this
SECTION 3.6.
3.7. REIMBURSEMENT OBLIGATION. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Administrative Agent for an advance made under a
Letter of Credit or L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by the Borrower no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, if the
Borrower shall have received notice of a Reimbursement
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Obligation later than 11:00 a.m. (Chicago time), on any Business Day or on a day
which is not a Business Day, no later than 11:00 a.m. (Chicago time), on the
immediately following Business Day or, in the case of any other draw on a Letter
of Credit, the date specified in the demand of such Issuing Bank. If the
Borrower at any time fails to repay a Reimbursement Obligation pursuant to this
SECTION 3.7, the Borrower shall be deemed to have elected to borrow Revolving
Loans from the Lenders, as of the date of the advance giving rise to the
Reimbursement Obligation, equal in amount to the Dollar Amount of the unpaid
Reimbursement Obligation. Such Revolving Loans shall be made as of the date of
the payment giving rise to such Reimbursement Obligation, automatically, without
notice and without any requirement to satisfy the conditions precedent otherwise
applicable to an Advance of Revolving Loans. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of which Advance shall be used
to repay such Reimbursement Obligation. If, for any reason, the Borrower fails
to repay a Reimbursement Obligation on the day such Reimbursement Obligation
arises and, for any reason, the Lenders are unable to make or have no obligation
to make Revolving Loans, then such Reimbursement Obligation shall bear interest
from and after such day, until paid in full, at the interest rate applicable to
a Floating Rate Advance plus two percent (2.0%) per annum.
3.8. LETTER OF CREDIT FEES. The Borrower agrees to pay:
(A) quarterly, in arrears, to the Administrative Agent for the ratable
benefit of the Lenders a letter of credit fee at a rate per annum equal to the
Applicable L/C Fee Percentage on the average daily outstanding Dollar Amount
available for drawing under each standby Letter of Credit;
(B) quarterly, in arrears, to the applicable Issuing Bank, a letter of
credit fronting fee equal to 0.125% per annum on the average daily outstanding
face amount available for drawing under each standby Letter of Credit issued by
such Issuing Bank; and
(C) to the applicable Issuing Bank, all customary fees and other issuance,
amendment, cancellation, document examination, negotiation, transfer and
presentment expenses and related charges in connection with the issuance,
amendment, cancellation, presentation of L/C Drafts, negotiation, transfer and
the like customarily charged by such Issuing Banks with respect to standby
Letters of Credit, payable at the time of invoice of such amounts.
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3.9. ISSUING BANK REPORTING REQUIREMENTS. In addition to the notices
required by SECTION 3.5(B), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, expiration date and the reference number of each Letter of Credit
issued by it outstanding at any time during such month and the aggregate amount
payable by the Borrower during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative
Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
will provide to such Lender information concerning such Letters of Credit.
3.10. INDEMNIFICATION; EXONERATION.
(A) In addition to amounts payable as elsewhere provided in this ARTICLE
III, the Borrower hereby agrees to protect, indemnify, pay and save harmless the
Administrative Agent, each Issuing Bank and each Lender from and against any and
all liabilities and costs which the Administrative Agent, such Issuing Bank or
such Lender may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit other than, in the case of the
applicable Issuing Bank, to the extent resulting from its gross negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Borrower, the Lenders, the Administrative Agent and the
Issuing Banks, the Borrower assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letter of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Borrower at the time of request for any Letter of Credit,
neither the Administrative Agent, any Issuing Bank nor any Lender shall be
responsible (in
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the absence of gross negligence or willful misconduct in connection therewith,
as determined by the final judgment of a court of competent jurisdiction): (i)
for the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the application for and
issuance of a Letter of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) 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; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Banks
and the Lenders, including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any Issuing Bank's
rights or powers under this SECTION 3.10.
(C) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative Agent or any
Lender under any resulting liability to the Borrower or relieve the Borrower of
any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
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3.11. CASH COLLATERAL. Notwithstanding anything to the contrary herein or
in any application for a Letter of Credit, following the occurrence and during
the continuance of a Default or upon payout or termination of this Agreement in
full in cash, the Borrower shall, on the Business Day that it receives
Administrative Agent's demand, deliver to the Administrative Agent for the
benefit of the Lenders and the Issuing Banks, cash, or other collateral of a
type satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to one hundred five percent (105%) of the aggregate Dollar Amount
of the outstanding L/C Obligations. Any such collateral shall be held by the
Administrative Agent in a separate account appropriately designated as a cash
collateral account in relation to this Agreement and the Letters of Credit and
retained by the Administrative Agent for the benefit of the Lenders and the
Issuing Banks as collateral security for the Borrower's obligations in respect
of this Agreement and each of the Letters of Credit. Such amounts shall be
applied to reimburse the Issuing Banks for drawings or payments under or
pursuant to Letters of Credit, or if no such reimbursement is required, to
payment of such of the other Obligations as the Administrative Agent shall
determine. Amounts remaining in any cash collateral account established pursuant
to this SECTION 3.11 which are not to be applied to reimburse an Issuing Bank
for amounts actually paid or to be paid by such Issuing Bank in respect of a
Letter of Credit, shall be returned to the Borrower within one (1) Business Day
(after deduction of the Administrative Agent's expenses incurred in connection
with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1. YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date the relevant Lender became a
party to this Agreement and having general applicability to all banks within the
jurisdiction in which such Lender operates (excluding, for the avoidance of
doubt, the effect of and phasing in of capital requirements or other regulations
or guidelines passed prior to the date of this Agreement), or any interpretation
or application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith,
(A) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from the
Borrower (excluding taxation of
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the overall net income of any Lender or taxation of a similar basis, which
are governed by SECTION 2.14(E), and excluding any other taxes for which
such Lender has been reimbursed by the Borrower), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan
Commitment, Loans, its L/C Interests, the Letters of Credit or other
amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurocurrency Rate Loans) with respect to its Revolving Loan
Commitment, Loans, L/C Interests or the Letters of Credit, or
(C) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Revolving Loan Commitment, the Loans, the L/C
Interests or the Letters of Credit or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with Loans or
Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of
its Revolving Loan Commitment, Loans or the L/C Interests held or interest
received by it or by reference to the Letters of Credit, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment, Loans, L/C
Interests, or Letters of Credit or to reduce any amount received under this
Agreement, then, within fifteen (15) days after receipt by the Borrower of
written demand by such Lender pursuant to SECTION 4.5, the Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Loans, L/C Interests, Letters of Credit and its Revolving
Loan Commitment; PROVIDED, HOWEVER, that the Borrower shall not be required to
pay any additional amounts pursuant to this SECTION 4.1 incurred more than 90
days prior to the date of the relevant Lender's demand therefor.
4.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines (i)
the amount of capital required to be maintained
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by such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a "Change" (as defined
below), and (ii) such increase in capital will result in an increase in the cost
to such Lender of maintaining its Revolving Loan Commitment, Loans, L/C
Interests, the Letters of Credit or its obligation to make Loans hereunder,
then, within fifteen (15) days after receipt by the Borrower of written demand
by such Lender pursuant to SECTION 4.5, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans, its L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy); PROVIDED, HOWEVER, that the Borrower shall not
be required to pay any additional amounts pursuant to this SECTION 4.2 incurred
more than 90 days prior to the date of the relevant Lender's demand therefor.
"CHANGE" means (i) any change after the date the relevant Lender became a party
to this Agreement in the "Risk-Based Capital Guidelines" (as defined below)
excluding, for the avoidance of doubt, the effect of any phasing in of such
Risk-Based Capital Guidelines or any other capital requirements passed prior to
the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date the relevant Lender became a party to this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date the
relevant Lender became a party to this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date the relevant Lender became a party to this Agreement.
4.3. AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines that
maintenance of its Fixed-Rate Rate Loans at a suitable Lending Installation
would violate any applicable law,
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rule, regulation or directive, whether or not having the force of law, or (ii)
the Required Lenders determine that (x) deposits of a type, currency or maturity
appropriate to match fund Fixed-Rate Loans are not available or (y) the interest
rate applicable to Fixed-Rate Loans does not accurately reflect the cost of
making or maintaining such an Advance, then the Administrative Agent shall
suspend the availability of the affected Type of Advance and, in the case of any
occurrence set forth in CLAUSE (i), require any Advances of the affected Type to
be repaid or converted into another Type.
4.4. FUNDING INDEMNIFICATION. Subject to SECTION 2.4(B), if any payment
of a Fixed-Rate Loan occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment, or
otherwise, or a Fixed-Rate Loan is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower shall
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed-Rate Loan.
4.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of the Borrower to such Lender
under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under SECTION 4.3, so long as such designation is not materially
disadvantageous, in the judgment of the Lender, to such Lender. Any demand for
compensation pursuant to SECTION 2.14(E) or this ARTICLE IV shall be in writing
and shall state the amount due, if any, under SECTION 2.14(E), 4.1, 4.2, or 4.4
and shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive, and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Fixed-Rate Loan shall be calculated as
though each Lender funded its Fixed-Rate Loan through the purchase of a deposit
of the type, currency and maturity corresponding to the deposit used as a
reference in determining the Eurocurrency Rate applicable to such Loan, whether
in fact that is the case or not. The obligations of the Borrower under SECTIONS
2.14(E), 4.1, 4.2, or 4.4 shall survive payment of the Obligations and
termination of this Agreement. If the obligation of any Lender to make a Loan
has been suspended under this ARTICLE IV for more than three consecutive months,
or any Lender has requested compensation under this
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ARTICLE IV, then the Borrower, provided no Default exists, shall have the right,
subject to the Administrative Agent's prior written consent (such consent not to
be unreasonably withheld), to substitute a financial institution for such
Lender. Such substitution shall result in such financial institution acquiring
such Lender's rights, duties and obligations hereunder and assuming such
Lender's Revolving Loan Commitment hereunder. Upon such acquisition and
assumption, the obligations of the Lender subject thereto shall be discharged,
such Lender's Revolving Loan Commitment shall be reduced to zero, and such
Lender shall cease to be obligated to make further Revolving Loans.
ARTICLE V: CONDITIONS PRECEDENT
5.1. INITIAL ADVANCES AND LETTERS OF CREDIT. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Borrower has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, all in form and substance satisfactory to the
Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation (or other comparable
constituent document) of each member of the Initial Obligor Group, together
with all amendments and a certificate of good standing, both certified by
the appropriate governmental officer in its jurisdiction of organization;
(2) Copies, certified by the Secretary or Assistant Secretary of
each member of the Initial Obligor Group, of its By-Laws (or other
comparable governing document) and of its Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed necessary by counsel
for any Lender) authorizing the execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each member of the Initial Obligor Group, which
shall identify by name and title and bear the signature of the officers of
the members of the Initial Obligor Group authorized to sign the Loan
Documents (and, in the case of the Borrower, to make borrowings hereunder),
upon which certificate the Lenders shall be entitled to rely until informed
of any change in writing by the Borrower;
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(4) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of the
Borrower, stating that on the date of this Agreement all the
representations in this Agreement are true and correct in all material
respects (unless such representation and warranty is made as of a specific
date, in which case, such representation and warranty shall be true in all
material respects as of such date) and no Default or Unmatured Default has
occurred and is continuing;
(5) Documentation, in form and substance reasonably satisfactory to
the Administrative Agent, evidencing the termination of the Wachovia
Credit
Agreement and the repayment of all obligations owing thereunder;
(6) Written money transfer instructions reasonably requested by the
Administrative Agent, addressed to the Administrative Agent and signed by
an Authorized Officer;
(7) Evidence satisfactory to the Administrative Agent that the
Borrower has paid to the Administrative Agent and the Arranger the fees
agreed to in the fee letter dated January 13, 2003, among the
Administrative Agent, the Arranger and the Borrower;
(8) The written opinions of the Borrower's and the Subsidiary
Guarantors' counsel in the forms of the opinions attached hereto as EXHIBIT
E, addressed to the Administrative Agent, the Issuing Banks and the
Lenders, in form and substance acceptable to the Administrative Agent and
its counsel, with respect to (without limitation) the due authorization,
execution and enforceability of this Agreement and the other Loan
Documents;
(9) A fully executed copy of the Intercreditor Agreement; and
(10) Such other documents as the Administrative Agent or any Lender
or its counsel may have reasonably requested, including, without
limitation, the Subsidiary Guaranty and each other document reflected on
the List of Closing Documents attached as EXHIBIT F to this Agreement.
5.2. EACH ADVANCE AND LETTER OF CREDIT. The Lenders shall not be required
to make any Advance, or issue any Letter of Credit, unless on the applicable
Borrowing Date, or in the case
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of a Letter of Credit, the date on which the Letter of Credit is to be issued:
(A) There exists no Default or Unmatured Default;
(B) The representations and warranties contained in ARTICLE VI are true and
correct in all material respects as of such Borrowing Date (unless such
representation and warranty is made as of a specific date, in which case, such
representation and warranty shall be true in all material respects as of such
date); and
(C) The Revolving Credit Obligations do not, and after making such proposed
Advance or issuing such Letter of Credit would not, exceed the Aggregate
Revolving Loan Commitment.
Each Borrowing/Election Notice with respect to each such Advance and the
letter of credit application with respect to each Letter of Credit shall
constitute a representation and warranty by the Borrower that the conditions
contained in SECTIONS 5.2(A), (B) and (C) have been satisfied.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and the other financial accommodations
to the Borrower and to issue the Letters of Credit described herein, the
Borrower represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, giving effect to the consummation
of the transactions contemplated by the Loan Documents on the Closing Date, and
thereafter on each date as required by SECTION 5.2:
6.1. ORGANIZATION; CORPORATE POWERS. Each of the Borrower and its
Subsidiaries (i) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign entity and is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing would reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite power
and authority to own, operate and encumber its property and to conduct its
business as presently conducted and as proposed to be conducted.
6.2. AUTHORITY; ENFORCEABILITY.
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(A) Each of the Borrower and each of its Subsidiaries has the requisite
power and authority to execute, deliver and perform each of the Loan Documents
which have been executed by it as required by this Agreement and the other Loan
Documents.
(B) The execution, delivery, and performance, of each of the Loan Documents
which have been executed as required by this Agreement, the other Loan Documents
or otherwise to which the Borrower or any of its Subsidiaries is party, and the
consummation of the transactions contemplated thereby, have been duly authorized
by all requisite corporate, partnership or limited liability company acts
(including any required shareholder or partner approval) of the Borrower and its
Subsidiaries.
(C) Each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and general equitable principles).
6.3. NO CONFLICT; GOVERNMENTAL CONSENTS. The execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or
articles of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization or formation, by-laws, operating
agreement or other management agreement (or other applicable constituent
documents) of the Borrower or any such Subsidiary, (ii) conflict with, result in
a breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of the Borrower
or any such Subsidiary, or require termination of any Contractual Obligation,
except such breach, default or termination which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect, or
(iii) result in or require the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Borrower or any such Subsidiary, other
than Liens permitted or created by the Loan Documents. Except as set forth on
SCHEDULE 6.3 to this Agreement, the execution, delivery and performance of each
of the Loan Documents to which the Borrower or any of its Subsidiaries is a
party do not and will not require any registration with, consent or approval of,
or notice to, or other action to, with or by any Governmental Authority,
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including under any Environmental Property Transfer Act, except filings,
consents or notices which have been made, obtained or given, or which, if not
made, obtained or given, individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect.
6.4. FINANCIAL STATEMENTS. The consolidated financial statements of the
Borrower and its Subsidiaries at and for the year ended September 30, 2002
heretofore delivered to the Administrative Agent and the Lenders were prepared
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared and fairly present the consolidated financial
condition and operation of the Borrower and its Subsidiaries at September 30,
2002 and the consolidated results of their operations for the period then ended.
6.5. NO MATERIAL ADVERSE CHANGE. Since September 30, 2002, except as
disclosed (x) in any of the Borrower's Form 10-Q, 10-K, or 8-K filings with the
Commission subsequent to September 30, 2002 but prior to the Closing Date, or
(y) in any letter or confidential offering memorandum delivered by the Borrower
to the Administrative Agent and the Lenders prior to the Closing Date, there has
occurred no change in the business, properties, financial condition,
performance, or results of operations of the Borrower, or the Borrower and its
Subsidiaries taken as a whole, or any other event which has had or would
reasonably be expected to have a Material Adverse Effect.
6.6. TAXES. Each of the Borrower and its Subsidiaries has filed or caused
to be filed all federal, state and local tax returns which are required to be
filed by it and, except for taxes and assessments being contested in good faith
and reserved for in accordance with generally accepted accounting principles as
in effect from time to time (if and to the extent so required), have paid or
caused to be paid all taxes as shown on said returns on any assessment received
by it, to the extent that such taxes have become due. The Borrower has no
knowledge of any proposed tax assessment against the Borrower or any of its
Subsidiaries that will have or could reasonably be expected to have a Material
Adverse Effect.
6.7. LITIGATION; LOSS CONTINGENCIES AND VIOLATIONS. There is no action,
suit, proceeding, arbitration or, to the Borrower's knowledge, investigation
before or by any Governmental Authority or private arbitrator pending or, to the
Borrower's knowledge, threatened in writing against the Borrower, any of its
Subsidiaries or any property of any of them
72
which could reasonably be expected to have a Material Adverse Effect.
6.8. SUBSIDIARIES. SCHEDULE 6.8 to this Agreement (as updated from time
to time by the Borrower after the formation, acquisition or dissolution of any
Subsidiary (i) contains a description of the corporate structure of the
Borrower, its Subsidiaries and any other Person in which the Borrower or any of
its Subsidiaries holds an Equity Interest; and (ii) accurately sets forth (A)
the correct legal name and the jurisdiction of organization, (B) a listing of
all of the Borrower's or any Domestic Incorporated Subsidiary's Significant
Domestic Incorporated Subsidiaries, (C) the authorized, issued and outstanding
shares of each class of Capital Stock of each of the Borrower's Subsidiaries and
the owners of such shares, and (D) a summary of the direct and indirect
partnership, joint venture, or other Equity Interests, if any, which the
Borrower and each Subsidiary of the Borrower holds in any Person that is not a
corporation. Except as disclosed on SCHEDULE 6.8, none of the issued and
outstanding Capital Stock of the Borrower or any of the Borrower's Subsidiaries
is subject to any vesting, redemption, or repurchase agreement, and there are no
warrants or options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of each of the Borrower's Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and is not Margin
Stock.
6.9. ERISA. Except as disclosed on SCHEDULE 6.9, no Benefit Plan has
incurred any material accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Code) whether or not waived. Neither the
Borrower nor any member of the Controlled Group has incurred any material
liability to the PBGC which remains outstanding other than the payment of
premiums. As of the last day of the most recent prior plan year, the market
value of assets under each Benefit Plan, other than any Multiemployer Plan, was
not by a material amount less than the present value of benefit liabilities
thereunder (determined in accordance with the actuarial valuation assumptions
described therein). Neither the Borrower nor any member of the Controlled Group
has (i) failed to make a required contribution or payment to a Multiemployer
Plan of a material amount or (ii) incurred a material complete or partial
withdrawal under Section 4203 or Section 4205 of ERISA from a Multiemployer
Plan. Neither the Borrower nor any member of the Controlled Group has failed to
make an installment or any other payment of a material amount required under
Section 412 of the Code on or before the due date for such installment or other
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payment. There have been no and there is no prohibited transaction described in
Sections 406 of ERISA or 4975 of the Code with respect to any Plan for which a
statutory or administrative exemption does not exist which could reasonably be
expected to subject the Borrower or any of is Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled Group has taken
or failed to take any action which would constitute or result in a Termination
Event, which action or inaction could reasonably be expected to subject the
Borrower or any of its Subsidiaries to material liability. Neither the Borrower
nor any member of the Controlled Group is subject to any material liability
under, or has any potential material liability under, Section 4063, 4064, 4069,
4204 or 4212(c) of ERISA. For purposes of this SECTION 6.9, "material" means any
amount, noncompliance or other basis for liability which could reasonably be
expected to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate with each other basis for liability under this
SECTION 6.9, in excess of $15,000,000.
6.10. ACCURACY OF INFORMATION. The information, exhibits and reports
furnished by the Borrower and any of its Subsidiaries, or by the Borrower on
behalf of any of its Subsidiaries, to the Administrative Agent or to any Lender
in connection with the negotiation of, or compliance with, the Loan Documents,
the representations and warranties of the Borrower and its Subsidiaries
contained in the Loan Documents, and all certificates and documents delivered to
the Administrative Agent and the Lenders pursuant to the terms thereof
(excluding any forecasts and projections of financial information and results
submitted to any Lender as works in process or as materials not otherwise
required to be submitted to the Commission), taken as a whole, do not contain as
of the date thereof any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading in any material respect.
6.11. SECURITIES ACTIVITIES. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12. MATERIAL AGREEMENTS.
(a) Neither the Borrower nor any Subsidiary is a party to or subject
to any Contractual Obligation, which, as of such date, individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
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(b) No member of the senior management of either the Borrower or any of
its Subsidiaries has received written notice that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation to which it is a party, or
(ii) any condition exists which, with the giving of notice or the lapse of time
or both, would constitute a default with respect to any such Contractual
Obligation, in each case, which default has, or if not remedied within any
applicable grace period could reasonably be likely to have, a Material Adverse
Effect.
6.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect.
6.14. ASSETS AND PROPERTIES. Each of the Borrower and its Subsidiaries has
good and sufficient title to all of its material real and personal properties
owned by it or a valid leasehold interest in all of its leased assets (except
insofar as marketability may be limited by any laws or regulations of any
Governmental Authority affecting such assets), and all such assets and property
are free and clear of all Liens, except Liens permitted under SECTION 7.3(C),
and except for those defects in title and Liens that, individually or in the
aggregate, would not have a Material Adverse Effect.
6.15. STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Borrower nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, or the Investment Company Act of
1940, or any other foreign, federal or state statute or regulation which limits
its ability to incur indebtedness or its ability to consummate the transactions
contemplated hereby.
6.16. LABOR MATTERS. To the knowledge of the Borrower, no attempt to
organize the employees of the Borrower or any of its Subsidiaries, and no labor
disputes, strikes or walkouts affecting the operations of the Borrower or any of
its Subsidiaries, is pending, or, to the Borrower's or such Subsidiaries'
knowledge, threatened, planned or contemplated which would reasonably be
expected to have a Material Adverse Effect.
6.17. ENVIRONMENTAL MATTERS.
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(A) Except as disclosed on SCHEDULE 6.17 to this Agreement
(i) the operations of the Borrower and its Subsidiaries comply in all
material respects with Environmental, Health or Safety Requirements of Law;
(ii) the Borrower and its Subsidiaries have all permits, licenses or
other authorizations required under Environmental, Health or Safety
Requirements of Law and are in material compliance with such permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of their
respective present property or operations, or, to the Borrower's or any of
its Subsidiaries' knowledge, any of their respective past property or
operations, are subject to or the subject of, any investigation known to
the Borrower or any of its Subsidiaries, any judicial or administrative
proceeding, order, judgment, decree, settlement or other agreement
respecting: (A) any material violation of Environmental, Health or Safety
Requirements of Law; (B) any material remedial action; or (C) any material
claims or liabilities arising from the Release or threatened Release of a
Contaminant into the environment;
(iv) there is not now, nor to the Borrower's or any of its
Subsidiaries' knowledge has there ever been, on or in the property of the
Borrower or any of its Subsidiaries any material landfill, waste pile,
underground storage tanks, aboveground storage tanks, surface impoundment
or hazardous waste storage facility of any kind, any material
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any material asbestos containing
material; and
(v) to the knowledge of the Borrower or any of its Subsidiaries,
neither the Borrower nor any of its Subsidiaries has any material
Contingent Obligation in connection with any Release or threatened Release
of a Contaminant into the environment.
(B) For purposes of this SECTION 6.17 "material" means any noncompliance or
basis for liability which could reasonably be likely to subject the Borrower or
any of its Subsidiaries to liability, individually or in the aggregate, in
excess of $15,000,000.
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6.18. INSURANCE. The Borrower maintains, and has caused each Subsidiary to
maintain, with financially sound and reputable insurance companies, insurance on
all of its property in such amounts, subject to deductibles and self-insurance
retentions, and covering such properties and risks, as is consistent with sound
business practices.
ARTICLE VII: COVENANTS
The Borrower covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit (or cash collateralization thereof in accordance with SECTION
3.11), unless the Required Lenders shall otherwise give prior written consent:
7.1. REPORTING. The Borrower shall:
(A) FINANCIAL REPORTING. Furnish to the Administrative Agent (with
sufficient copies for each of the Lenders, which copies shall be distributed to
the Lenders by the Administrative Agent):
(i) QUARTERLY REPORTS. As soon as practicable, and in any event no
later than the earlier to occur of (x) the sixtieth (60th) day after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, and (y) the tenth (10th) day after the date on which any of the
following items are required to be delivered to the Commission, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such period and the related statement of consolidated earnings of
the Borrower and its Subsidiaries for such fiscal quarter and the related
statements of consolidated earnings and consolidated cash flows of the
Borrower and its Subsidiaries for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, certified by the
chief financial officer of the Borrower on behalf of the Borrower as fairly
presenting in all material respects the consolidated financial position of
the Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and cash flows for the periods indicated in accordance
with generally accepted accounting principles as in effect from time to
time, subject to normal year-end audit adjustments and the absence of
footnotes. With respect to any fiscal quarter, if all of the foregoing
information is fairly, accurately
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and completely set forth in the Borrower's Form 10-Q filing with the
Commission for such fiscal quarter, the Borrower may deliver such Form 10-Q
filing in lieu of a separate report setting forth such information;
PROVIDED, HOWEVER, that the Borrower must comply with the foregoing timing
requirements for such delivery whether constituting a Form 10-Q filing or
another report and must deliver any corresponding compliance certificates
hereunder when due.
(ii) ANNUAL REPORTS. As soon as practicable, and in any event no later
than the earlier to occur of (x) the one-hundredth (100th) day after the
end of each fiscal year of the Borrower, and (y) the tenth (10th) day after
the date on which any of the following items are required to be delivered
to the Commission, (a) the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year and the related
statements of consolidated earnings, consolidated shareholders' equity and
consolidated cash flows of the Borrower and its Subsidiaries for such
fiscal year, and in comparative form the corresponding figures for the
previous fiscal year in form and substance sufficient to calculate the
financial covenants set forth in SECTION 7.4, and (b) an audit report on
the items listed in CLAUSE (a) hereof of independent certified public
accountants of recognized national standing, which audit report shall be
unqualified and shall state that such financial statements fairly present
the consolidated financial position of the Borrower and its Subsidiaries as
at the dates indicated and the results of their operations and cash flows
for the periods indicated in conformity with generally accepted accounting
principles as in effect from time to time and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards. The
deliveries made pursuant to this CLAUSE (ii) shall be accompanied by a
certificate of such accountants that, in the course of their examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default under SECTION 7.4, or if, in
the opinion of such accountants, any Default or Unmatured Default shall
exist under SECTION 7.4, stating the nature and status thereof. With
respect to any fiscal year, if all of the foregoing information is fairly,
accurately and completely set forth in the Borrower's Form 10-K filing with
the Commission for such fiscal year, the Borrower may deliver such Form
10-K filing in lieu of a separate report
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setting forth such information; PROVIDED, HOWEVER, that the Borrower must
comply with the timing requirements for such delivery whether constituting
a Form 10-K filing or another report and must deliver any corresponding
compliance certificates hereunder when due.
(iii) OFFICER'S CERTIFICATE. Together with each delivery of any
financial statement (a) pursuant to CLAUSES (i) and (ii) of this SECTION
7.1(A), an Officer's Certificate of the Borrower, substantially in the form
of EXHIBIT G attached hereto and made a part hereof, stating that (x) the
representations and warranties of the Borrower contained in ARTICLE VI
hereof shall have been true and correct in all material respects (unless
such representation or warranty is made as of a specific date, in which
case, such representation and warranty shall be true in all material
respects as of such date) at all times during the period covered by such
financial statements and as of the date of such Officer's Certificate, (y)
as of the date of such Officer's Certificate no Default or Unmatured
Default exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof and (z) the Borrower, the Borrower's chief
executive officer, and the Borrower's chief financial officer are in
compliance with all requirements of Section 302 and Section 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations related thereto
(or such other officers as may be required from time to time thereunder),
and (b) pursuant to CLAUSES (i) and (ii) of this SECTION 7.1(A), a
compliance certificate, substantially in the form of EXHIBIT H attached
hereto and made a part hereof, signed by the Borrower's chief financial
officer, (1) demonstrating compliance, when applicable, with the provisions
of SECTIONS 7.3(A) through (N) and SECTION 7.4, and (2) calculating the
Leverage Ratio for purposes of determining the then Applicable Eurocurrency
Margin, Applicable L/C Fee Percentage and Applicable Facility Fee
Percentage.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive officer,
chief financial officer, or treasurer of the Borrower obtaining knowledge (i) of
any condition or event which constitutes a Default or Unmatured Default, or
becoming aware that any Lender or Administrative Agent has given any written
notice to any Authorized Officer with respect to a claimed Default or Unmatured
Default under this Agreement, or (ii) that any Person has given any written
notice to any Authorized Officer of the Borrower or any Subsidiary of the
Borrower or
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taken any other action with respect to a claimed default or event or condition
of the type referred to in SECTION 8.1(E), the Borrower shall deliver to the
Administrative Agent and the Lenders an Officer's Certificate specifying (a) the
nature and period of existence of any such claimed default, Default, Unmatured
Default, condition or event, (b) the notice given or action taken by such Person
in connection therewith, and (c) what action the Borrower has taken, is taking
and proposes to take with respect thereto.
(C) LAWSUITS. (i) Promptly upon the Borrower's chief executive officer,
chief financial officer, or treasurer obtaining knowledge of the institution of,
or written threat of, any action, suit, proceeding, governmental investigation
or arbitration, by or before any Governmental Authority, against or affecting
the Borrower or any of its Subsidiaries or any property of the Borrower or any
of its Subsidiaries not previously disclosed pursuant to SECTION 6.7, which
action, suit, proceeding, governmental investigation or arbitration exposes, or
in the case of multiple actions, suits, proceedings, governmental investigations
or arbitrations arising out of the same general allegations or circumstances
which expose, in the Borrower's reasonable judgment, the Borrower or any of its
Subsidiaries to liability in an amount aggregating $10,000,000 or more
(exclusive of claims covered by insurance policies of the Borrower or any of its
Subsidiaries unless the insurers of such claims have disclaimed coverage or
reserved the right to disclaim coverage on such claims and exclusive of claims
covered by the indemnity of a financially responsible indemnitor in favor of the
Borrower or any of its Subsidiaries unless the indemnitor has disclaimed or
reserved the right to disclaim coverage thereof), give written notice thereof to
the Administrative Agent and the Lenders and provide such other information as
may be reasonably available to enable each Lender to evaluate such matters; and
(ii) in addition to the requirements set forth in clause (i) of this SECTION
7.1(C), upon request of the Administrative Agent or the Required Lenders,
promptly give written notice of the status of any action, suit, proceeding,
governmental investigation or arbitration covered by a report delivered pursuant
to clause (i) above and provide such other information as may be reasonably
available to it that would not jeopardize any attorney-client privilege by
disclosure to the Lenders to enable each Lender and the Administrative Agent and
its counsel to evaluate such matters.
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(D) ERISA NOTICES. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Borrower's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after any member of the Controlled
Group obtains knowledge that a Termination Event has occurred which could
reasonably be expected to subject the Borrower or its Subsidiaries to
liability individually or in the aggregate in excess of $15,000,000, a
written statement of the chief financial officer of the Borrower describing
such Termination Event and the action, if any, which the member of the
Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL or
PBGC with respect thereto;
(ii) within ten (10) Business Days after the filing of any funding
waiver request with the IRS, a copy of such funding waiver request and
thereafter all communications received by the Borrower or a member of the
Controlled Group with respect to such request within ten (10) Business Days
such communication is received;
(iii) within ten (10) Business Days after the Borrower or any member
of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan,
or (c) the PBGC has instituted or will institute proceedings under Section
4042 of ERISA to terminate a Multiemployer Plan, a notice describing such
matter; and
(iv) within ten (10) Business Days after the Borrower or any member of
the Controlled Group fails to make a required installment or any other
required payment to a Benefit Plan which could result in the imposition of
a lien under Section 412(a) of the Code, a notice thereof.
For purposes of this SECTION 7.1(D), the Borrower and any member of the
Controlled Group shall be deemed to know all facts known by the administrator of
any Plan of which the Borrower or any member of the Controlled Group is the plan
sponsor.
(E) LABOR MATTERS. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer of the Borrower learning of (i) any
material labor dispute to which the Borrower or any of its Subsidiaries may
become a party,
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including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities, which dispute would reasonably be
expected to have a Material Adverse Effect and (ii) any Worker Adjustment and
Retraining Notification Act liability incurred with respect to the closing of
any plant or other facility of the Borrower or any of its Subsidiaries which
would reasonably be expected to have a Material Adverse Effect.
(F) OTHER INDEBTEDNESS. Deliver to the Administrative Agent (i) a copy of
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Borrower to the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $15,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Borrower from the holders of funded Indebtedness with an aggregate outstanding
principal amount in excess of $15,000,000 regarding potential or actual defaults
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Borrower.
(G) OTHER REPORTS. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of (i) all financial statements, reports and
notices, if any, sent by the Borrower to its securities holders or filed with
the Commission by the Borrower, and (ii) all notifications received from the
Commission by the Borrower or its Subsidiaries pursuant to the Securities
Exchange Act of 1934 and the rules promulgated thereunder. The Borrower shall
include the Administrative Agent and the Lenders on its standard distribution
lists for all press releases made available generally by the Borrower to the
public concerning material developments in the business of the Borrower or any
such Subsidiary.
(H) ENVIRONMENTAL NOTICES. As soon as possible and in any event within
twenty (20) days after receipt by the Borrower, a copy of (i) any notice or
claim to the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the Release by the Borrower, any of its
Subsidiaries, or any other Person of any Contaminant into the environment, and
(ii) any notice alleging any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries if, in either
case, such
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notice or claim relates to an event which could reasonably be expected to
subject the Borrower and each of its Subsidiaries to liability individually or
in the aggregate in excess of $15,000,000.
(I) OTHER INFORMATION. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the Borrower, any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
7.2. AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. Except as permitted pursuant to SECTION
7.3(I), the Borrower shall, and shall cause each of its Subsidiaries to, at all
times maintain its valid existence and (to the extent such concept applies to
such entity) in good standing as a corporation, partnership or limited liability
company in its jurisdiction of incorporation or organization, as the case may
be, and preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses, unless, in the good
faith judgment of the Borrower, the failure to preserve any such rights or
franchises would not reasonably be expected to have a Material Adverse Effect.
(B) CORPORATE POWERS; CONDUCT OF BUSINESS. The Borrower shall, and shall
cause each of its Subsidiaries to, qualify and remain qualified to do business
in each jurisdiction in which the nature of its business requires it to be so
qualified and where the failure to be so qualified will have or would reasonably
be expected to have a Material Adverse Effect.
(C) COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law (including, without
limitation, Section 302 and Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) and
all restrictive covenants affecting such Person or the business, properties,
assets or operations of such Person, and (b) obtain as needed all permits
necessary for its operations and maintain such permits in good standing unless
failure to comply with such Requirements of Law or such covenants or to obtain
or maintain such permits would not reasonably be expected to have a Material
Adverse Effect.
(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Borrower shall pay,
and cause each of its Subsidiaries to pay,
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(i) all material taxes, assessments and other governmental charges imposed upon
it or on any of its properties or assets or in respect of any of its franchises,
business, income or property before any penalty accrues thereon, and (ii) all
claims (including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Lien permitted by SECTION 7.3(C)) upon any of
the Borrower's or such Subsidiary's property or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided, however,
that no such taxes, assessments and governmental charges referred to in clause
(i) above or claims referred to in clause (ii) above (and interest, penalties or
fines relating thereto) need be paid if (x) being contested in good faith by
appropriate proceedings diligently instituted and conducted and if such reserve
or other appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles as in effect from time to time shall
have been made therefor, or (y) the nonpayment of all such taxes, assessments
and other governmental charges would not reasonably be expected to have a
Material Adverse Effect.
(E) INSURANCE. The Borrower shall maintain for itself and its Subsidiaries,
or shall cause each of its Subsidiaries to maintain in full force and effect,
such insurance policies and programs as reflect coverage that is reasonably
consistent with prudent industry practice for companies operating in the same or
similar locations.
(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall permit and cause each of the Borrower's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender to visit and inspect any of the properties of the Borrower or any of
its Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers, all upon reasonable notice
and at such reasonable times during normal business hours, as often as may be
reasonably requested. The Borrower shall keep and maintain, in all material
respects, proper books of record and account on a consolidated basis in which
entries in conformity with Agreement Accounting Principles shall be made of all
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dealings and transactions in relation to their respective businesses and
activities. The Borrower shall cause each of its Subsidiaries to keep and
maintain, in all material respects, proper books of record and account. If a
Default has occurred and is continuing, the Borrower, upon the Administrative
Agent's request, shall provide copies of such records to the Administrative
Agent or its representatives.
(G) ERISA COMPLIANCE. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain and operate all Plans to comply in all material
respects with the provisions of ERISA and shall operate all Plans and Non-ERISA
Commitments to comply in all material respects with the applicable provisions of
the Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans and Non-ERISA Commitments, unless the failure to maintain, operate and
comply with the foregoing, as applicable, would not reasonably be expected to
subject Borrower or its Subsidiaries to a liability in excess of $15,000,000.
(H) MAINTENANCE OF PROPERTY. The Borrower shall cause all material property
used in the conduct of its business or the business of any Subsidiary to be
maintained and kept in adequate condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this SECTION 7.2(H) shall prevent the Borrower from
discontinuing the operation or maintenance of any of such property if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its business or the business of any Subsidiary.
(I) ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $15,000,000.
(J) USE OF PROCEEDS. The Borrower shall use the proceeds of the Revolving
Loans for general corporate purposes of the Borrower and its Subsidiaries
(including, without limitation, to consummate Permitted Acquisitions). The
Borrower will not, nor
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will it permit any Subsidiary to, use any of the proceeds of the Loans to
purchase or carry any Margin Stock.
(K) SUBSIDIARY GUARANTEES. The Borrower will, including in connection with
a Permitted Acquisition, (a) cause each Significant Domestic Incorporated
Subsidiary to execute the Subsidiary Guaranty (and from and after the Closing
Date cause each Significant Domestic Incorporated Subsidiary to execute and
deliver to the Administrative Agent, as promptly as possible, but in any event
within sixty (60) days after becoming a Significant Domestic Incorporated
Subsidiary of the Borrower, an executed Supplement to become a Subsidiary
Guarantor under the Subsidiary Guaranty in the form of Annex I to EXHIBIT I
attached hereto (whereupon such Subsidiary shall become a "Subsidiary Guarantor"
under this Agreement)), and (b) deliver and cause each such Subsidiary to
deliver corporate resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent; PROVIDED,
HOWEVER, that upon the Borrower's written request of and certification to the
Administrative Agent that a Domestic Incorporated Subsidiary is no longer a
Significant Domestic Incorporated Subsidiary, the Administrative Agent, as
contemplated in the Subsidiary Guaranty, shall release such Domestic
Incorporated Subsidiary from its duties and obligations under the Subsidiary
Guaranty; PROVIDED, FURTHER, that if such Domestic Incorporated Subsidiary
subsequently qualifies as a Significant Domestic Incorporated Subsidiary, it
shall be required to re-execute the Subsidiary Guaranty.
7.3. NEGATIVE COVENANTS.
(A) INDEBTEDNESS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(iii) Indebtedness in respect of obligations secured by Customary
Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by
SECTION 7.3(E);
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(v) Indebtedness arising from intercompany loans and advances in an
aggregate principal amount not to exceed a Dollar Amount equal to
$50,000,000 at any time; PROVIDED, that such intercompany loans and
advances shall be subject to the subordination provisions of SECTION 10.14
of this Agreement and Section 6 of the Subsidiary Guaranty.
(vi) Indebtedness in respect of Hedging Obligations permitted under
SECTION 7.3(M);
(vii) Indebtedness with respect to surety, appeal and performance
bonds obtained by the Borrower or any of its Subsidiaries in the ordinary
course of business;
(viii) Indebtedness evidenced by the Senior Notes (including any
Indebtedness of the Subsidiary Guarantors arising under a guaranty of the
Senior Notes) in an aggregate principal amount not to exceed $75,000,000;
(ix) secured or unsecured purchase money Indebtedness (including
Capitalized Leases) incurred by the Borrower or any of its Subsidiaries to
finance the acquisition of assets used in its business, if (1) at the time
of such incurrence no Default or Unmatured Default has occurred and is
continuing or would result from such incurrence, (2) such Indebtedness does
not exceed the lower of the fair market value or the cost of the applicable
assets on the date acquired, (3) such Indebtedness does not exceed
$10,000,000 in the aggregate outstanding at any time, and (4) any Lien
securing such Indebtedness is permitted under SECTION 7.3(C).
(x) Receivables Facility Attributed Indebtedness in an aggregate
amount not to exceed $75,000,000 at any time; and
(xi) other Indebtedness in addition to that referred to elsewhere in
this SECTION 7.3(A) incurred by the Borrower and its Subsidiaries; PROVIDED
that no Default or Unmatured Default shall have occurred and be continuing
at the date of such incurrence or would result therefrom; and PROVIDED
FURTHER that the aggregate outstanding amount of all Indebtedness incurred
by the Borrower and its Subsidiaries (other than Indebtedness incurred
pursuant to CLAUSES (i) through (x) of this SECTION 7.3(A)) shall not at
any time exceed $75,000,000.
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(B) SALES OF ASSETS. Neither the Borrower nor any of its Subsidiaries shall
consummate any Asset Sale, except:
(i) transfers of assets between the Borrower and any wholly-owned
Subsidiary of the Borrower or between wholly-owned Subsidiaries of the
Borrower not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business of equipment
that is obsolete, excess, or no longer used or useful in the Borrower's or
any Subsidiary's business;
(iv) sales, transfers or assignments of Receivables in connection with
receivables purchase facilities; PROVIDED, that the aggregate amount of
Receivables Facility Attributed Indebtedness arising in connection
therewith does not exceed amounts permitted under SECTION 7.3(A)(x); and
(v) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets if such transaction (a) is for not less than
fair market value (as determined in good faith by the Borrower's management
or board of directors) and (b) when combined with all such other
transactions (each such transaction being valued at book value) during the
then current fiscal year, represents the disposition of assets with an
aggregate book value not greater than 15% of the aggregate book value of
Consolidated Assets as of the end of the immediately preceding fiscal year.
If the proceeds resulting from an Asset Sale are used by the Borrower or
the applicable Subsidiary within 180 days of the date on which such
proceeds arose to acquire property of a similar nature to be used in the
Borrower's or such Subsidiary's ordinary course of business, then, only for
purposes of determining compliance with this SECTION 7.3(B)(v), such Asset
Sale shall not be included in such determination.
(C) LIENS. Neither the Borrower nor any of its Subsidiaries shall directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any of their respective property or assets except:
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(i) Liens created by the Loan Documents or otherwise securing the
Obligations;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
(iv) purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at the time of
the Borrower's acquisition thereof) securing Indebtedness permitted
pursuant to SECTION 7.3(A)(ix); PROVIDED that such Liens shall not apply to
any property of the Borrower or its Subsidiaries other than that purchased
or subject to such Capitalized Lease;
(v) Liens with respect to property acquired by the Borrower or any of
its Subsidiaries after the Closing Date (and not created in contemplation
of such acquisition) pursuant to a Permitted Acquisition; PROVIDED, that
such Liens shall extend only to the property so acquired;
(vi) Liens arising under or in connection with the Senior Notes and
the Note Agreement which are PARI PASSU to the Liens securing the
Obligations to the extent that the collateral securing such Liens also
secures the Obligations;
(vii) Liens securing Receivables Facility Attributed Indebtedness
permitted under SECTION 7.3(A); and
(viii) other Liens securing Indebtedness not to exceed $10,000,000 in
the aggregate.
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent for the benefit of itself and
the Lenders, as collateral for the Obligations; PROVIDED, FURTHER, that the Note
Agreement may prohibit the creation of a Lien in favor of the Administrative
Agent for the benefit of itself and the Lenders, as collateral for the
Obligations, unless the Senior Noteholders shall be provided with an equal and
ratable Lien.
(D) INVESTMENTS. Except to the extent permitted pursuant to paragraph (G)
below, neither the Borrower nor any of its
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Subsidiaries shall directly or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than the
amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by the
Borrower and its Subsidiaries;
(v) Investments in any Guarantors;
(vi) Investments constituting Permitted Acquisitions;
(vii) Investments constituting Indebtedness permitted by SECTION
7.3(A), Contingent Obligations permitted by SECTION 7.3(E) or Restricted
Payments permitted by SECTION 7.3(F);
(viii) Investments consisting of any right of the Borrower or its
wholly-owned Domestic Incorporated Subsidiaries to payment for goods sold
or for services rendered, whether or not it has been earned by performance;
(ix) Investments comprised of capital contributions (whether in the
form of cash, a note, or other assets) to a Subsidiary or other special
purpose entity created solely to engage in transactions giving rise to
Receivables Facility Attributed Indebtedness permitted hereunder or
otherwise resulting from transfers of assets permitted hereunder to such a
Subsidiary or special purpose entity; and
(x) Investments in addition to those referred to elsewhere in this
SECTION 7.3(D) in an aggregate amount not to exceed $10,000,000 at any time
outstanding.
(E) CONTINGENT OBLIGATIONS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of
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negotiable instruments for collection in the ordinary course of business; (ii)
Permitted Existing Contingent Obligations; (iii) obligations, warranties,
guarantees and indemnities, not relating to Indebtedness of any Person, which
have been or are undertaken or made in the ordinary course of business and not
for the benefit of or in favor of an Affiliate of the Borrower or such
Subsidiary; (iv) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the ordinary
course of business, (v) Contingent Obligations of the Subsidiary Guarantors
under the Subsidiary Guaranty, (vi) Contingent Obligations of the Subsidiary
Guarantors under any guaranty of the Indebtedness arising under the Senior Notes
and the Note Agreement, (vii) obligations arising under or related to the Loan
Documents, (viii) Contingent Obligations arising in connection with Receivables
Facility Attributed Indebtedness permitted under SECTION 7.3(A); (ix) Contingent
Obligations in respect of representations and warranties customarily given in
respect of Asset Sales otherwise permitted hereunder; and (x) Contingent
Obligations, in an aggregate amount not to exceed $150,000,000, arising as a
result of the guaranty of any Indebtedness not described in clauses (i) through
(ix) hereof and otherwise permitted under SECTION 7.3(A).
(F) RESTRICTED PAYMENTS. The Borrower shall not declare or make any
Restricted Payment if either a Default or an Unmatured Default shall have
occurred and be continuing at the date of declaration or payment thereof or
would result therefrom PROVIDED, HOWEVER, that the Borrower may make dividend
payments to holders of its Equity Interests subsequent to the occurrence of a
Default or an Unmatured Default if the payment of such dividends was publicly
announced to such holders of Equity Interests prior to the occurrence of such
Default or Unmatured Default.
(G) CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS. Neither the Borrower
nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Borrower on the date hereof and any business or
activities which are reasonably similar, related or incidental thereto or
logical extensions thereof. The Borrower shall not create, acquire or capitalize
any Subsidiary after the date hereof unless (i) no Default or Unmatured Default
which is not being cured shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct in all
material respects (unless such representation
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and warranty is made as of a specific date, in which case, such representation
or warranty shall be true in all material respects as of such date); and (iii)
after such creation, acquisition or capitalization the Borrower shall be in
compliance with the terms of SECTION 7.2(K) and SECTION 7.3(L). The Borrower
shall not make any Acquisitions, other than Acquisitions meeting the following
requirements or otherwise approved by the Required Lenders (each such
Acquisition constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of any
Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis;
(iii) prior to each such Acquisition with a purchase price in excess
of $50,000,000, the Borrower shall deliver to the Administrative Agent and
the Lenders a certificate from one of the Authorized Officers,
demonstrating to the reasonable satisfaction of the Administrative Agent
that after giving effect to such Acquisition and the incurrence of any
Indebtedness permitted by SECTION 7.3(A) in connection therewith, on a PRO
FORMA basis using, for any Acquisition, historical financial statements
containing reasonable adjustments satisfactory to the Administrative Agent,
as if the Acquisition and such incurrence of Indebtedness had occurred on
the first day of the twelve-month period ending on the last day of the
Borrower's most recently completed fiscal quarter, the Borrower would have
been in compliance with the financial covenants in SECTION 7.4 and not
otherwise in Default;
(iv) the aggregate purchase price of all such Acquisitions entered
into in any one fiscal year does not exceed $100,000,000 (PROVIDED HOWEVER
that, for purposes of this SECTION 7.3(G)(iv), the aggregate purchase price
payable in cash or indebtedness in connection with all Acquisitions
consummated in any one fiscal year shall not exceed $75,000,000); and
(v) the businesses being acquired shall be reasonably similar, related
or incidental to, or a logical extension of, the businesses or activities
engaged in by the Borrower on the Closing Date.
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(H) TRANSACTIONS WITH AFFILIATES. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
the Borrower, on terms that are (a) not authorized by the Board of Directors or
(b) less favorable to the Borrower or any of its Subsidiaries, as applicable,
than those that might be obtained in an arm's length transaction at the time
from Persons who are not such an Affiliate, except for (i) Restricted Payments
permitted by SECTION 7.3(F), (ii) Investments permitted by SECTION 7.3(D), (iii)
transactions in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and (iv) loans and
advances to employees in the ordinary course of business and in amounts
consistent with practice in effect prior to the Closing Date.
(I) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Borrower nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Borrower's consolidated business or property,
whether now or hereafter acquired, except (i) transactions permitted under
SECTIONS 7.3(B), 7.3(D) or 7.3(G) and, (ii) a Subsidiary of the Borrower may be
merged into or consolidated with the Borrower (in which case the Borrower shall
be the surviving corporation) or any wholly-owned Domestic Incorporated
Subsidiary of the Borrower, and (iii) any liquidation of any Subsidiary of the
Borrower into the Borrower or another Subsidiary of the Borrower, as applicable.
(J) MARGIN REGULATIONS. Neither the Borrower nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(K) ERISA. The Borrower shall not:
(i) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Code), with respect to any Benefit
Plan, whether or not waived;
(ii) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in
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liability of the Borrower or any Controlled Group member under Title IV of
ERISA; or
(iii) fail, or permit any Controlled Group member to fail, to pay any
required installment or any other payment required under Section 412 of the
Code on or before the due date for such installment or other payment;
except where such transactions, events, circumstances, or failures are not,
individually or in the aggregate, reasonably expected to result in liability
individually or in the aggregate in excess of $15,000,000.
(L) DOMESTIC INCORPORATED SUBSIDIARY COVENANTS. The Borrower will not, and
will not permit any Domestic Incorporated Subsidiary to, create or otherwise
cause to become effective any consensual encumbrance or restriction of any kind
on the ability of any Domestic Incorporated Subsidiary to pay dividends or make
any other distribution on its stock, or make any other Restricted Payment, pay
any Indebtedness or other Obligation owed to the Borrower or any other Domestic
Incorporated Subsidiary, make loans or advances or other Investments in the
Borrower or any other Domestic Incorporated Subsidiary, or sell, transfer or
otherwise convey any of its property to the Borrower or any other Domestic
Incorporated Subsidiary other than pursuant to (i) applicable law, (ii) this
Agreement or the other Loan Documents or (iii) restrictions imposed by the
holder of a Lien permitted by SECTION 7.3(C).
(M) HEDGING OBLIGATIONS. The Borrower shall not and shall not permit any of
its Subsidiaries to enter into any interest rate, commodity or foreign currency
exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower or such
Subsidiary pursuant to which the Borrower or such Subsidiary has hedged its
reasonably estimated interest rate, foreign currency or commodity exposure,
which are non-speculative in nature. Such permitted hedging agreements entered
into by the Borrower and any Lender or any affiliate of any Lender are sometimes
referred to herein as "HEDGING AGREEMENTS."
(N) ISSUANCE OF DISQUALIFIED STOCK. From and after the Closing Date,
neither the Borrower, nor any of its Subsidiaries shall issue any Disqualified
Stock unless after giving effect to the next sentence, such Disqualified Stock
and Indebtedness is issued in accordance with the terms of this Agreement. All
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issued and outstanding Disqualified Stock shall be treated as Indebtedness for
all purposes of this Agreement (and as funded Indebtedness for purposes of
SECTION 7.1(F)), and the amount of such deemed Indebtedness shall be the
aggregate amount of the liquidation preference of such Disqualified Stock.
7.4. FINANCIAL COVENANTS. The Borrower shall comply with the following:
(A) MAXIMUM LEVERAGE RATIO. The Borrower and its consolidated Subsidiaries
shall not permit the ratio (the "LEVERAGE RATIO") of (i) Indebtedness of the
Borrower and its consolidated Subsidiaries to (ii) EBITDA to be greater than
3.00 to 1.00 for each four (4) fiscal quarter period of the Borrower beginning
with the fiscal quarter ending March 31, 2003.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter of the Borrower based upon (a) for Indebtedness,
Indebtedness as of the last day of each such fiscal quarter; and (b) for EBITDA,
the actual amount for the Last Twelve-Month Period, PROVIDED, that the Leverage
Ratio shall be calculated, with respect to Permitted Acquisitions, on a PRO
FORMA basis using historical financial statements and containing reasonable
adjustments satisfactory to the Administrative Agent, broken down by fiscal
quarter in the Borrower's reasonable judgment.
(B) MINIMUM CONSOLIDATED NET WORTH. The Borrower shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a) $285,000,000
(the "BASE AMOUNT") PLUS (b) on the last Business Day of each fiscal year,
beginning with the fiscal year ending September 30, 2003, the sum of fifty
percent (50%) of Net Income (if positive) for such fiscal year, PLUS (c) one
hundred percent (100%) of the net cash proceeds resulting from the issuance by
the Borrower of any Capital Stock, other than shares of Capital Stock issued
pursuant to employee stock option or ownership plans; PROVIDED that the effect
of adjustments (not in excess of the Maximum Adjustment Amount) in the
accumulated other comprehensive earnings accounts of the Borrower and its
Subsidiaries, shall in each case be excluded in calculating the Borrower's
Consolidated Net Worth. For purposes of this SECTION 7.4(B), "MAXIMUM ADJUSTMENT
AMOUNT" means 10% of the Base Amount. The Borrower's compliance with this
covenant shall be calculated and tested as of the end of each fiscal quarter.
(C) INTEREST COVERAGE RATIO. The Borrower and its consolidated Subsidiaries
shall not permit the ratio (the
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"INTEREST COVERAGE RATIO") of (i) EBIT of the Borrower and its consolidated
Subsidiaries to (ii) Consolidated Interest Expense to be less than 3.00 to 1.00
for each four (4) fiscal quarter period of the Borrower beginning with the
fiscal quarter ending March 31, 2003.
The Interest Coverage Ratio shall be calculated, in each case, determined as of
the last day of each fiscal quarter of the Borrower based upon (a) for EBIT, the
actual amount for the Last Twelve-Month Period; and (b) for Consolidated
Interest Expense, Consolidated Interest Expense as of the last day of each such
fiscal quarter, PROVIDED, that the Interest Coverage Ratio shall be calculated,
with respect to Permitted Acquisitions, on a PRO FORMA basis using historical
financial statements and containing reasonable adjustments satisfactory to the
Administrative Agent, broken down by fiscal quarter in the Borrower's reasonable
judgment.
ARTICLE VIII: DEFAULTS
8.1. DEFAULTS. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall (i) fail to pay
when due any of the Obligations consisting of principal with respect to the
Loans or Reimbursement Obligations or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(B) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) SECTIONS 7.1 or 7.2 and such failure shall continue unremedied for
fifteen (15) days, or
(ii) SECTIONS 7.3 or 7.4.
(C) BREACH OF REPRESENTATION OR WARRANTY. Any representation or warranty
made or deemed made by the Borrower to the Administrative Agent or any Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made (or deemed made).
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(D) OTHER DEFAULTS. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (A) or (B) of this SECTION 8.1), or the Borrower or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the occurrence thereof.
(E) DEFAULT AS TO OTHER INDEBTEDNESS. The Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to any Indebtedness (other than Indebtedness hereunder, but including, without
limitation, Disqualified Stock), beyond any period of grace provided with
respect thereto, which individually or together with other such Indebtedness as
to which any such failure exists has an aggregate outstanding principal amount
in excess of $15,000,000; or any breach, default or event of default shall
occur, or any other condition shall exist under any instrument, agreement or
indenture pertaining to any such Indebtedness having such aggregate outstanding
principal amount, beyond any period of grace, if any, provided with respect
thereto, if the effect thereof is to cause an acceleration, mandatory
redemption, a requirement that the Borrower offer to purchase such Indebtedness
or other required repurchase of such Indebtedness, or permit the holder(s) of
such Indebtedness to accelerate the maturity of any such Indebtedness; or
require a redemption or other repurchase of such Indebtedness or any such
Indebtedness shall be otherwise declared to be due and payable (by acceleration
or otherwise) or required to be prepaid, redeemed or otherwise repurchased by
the Borrower or any of its Subsidiaries (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof.
(F) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the Borrower, any
of the Borrower's Domestic Incorporated Subsidiaries, or any of the
Borrower's Significant Foreign Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower, any of
the Borrower's Domestic Incorporated Subsidiaries, or any of the Borrower's
Significant Foreign Subsidiaries in an involuntary case, under any
applicable bankruptcy, insolvency or other
97
similar law now or hereinafter in effect; or any other similar relief shall
be granted under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Borrower, any of
the Borrower's Domestic Incorporated Subsidiaries or any of the Borrower's
Significant Foreign Subsidiaries or over all or a substantial part of the
property of the Borrower, any of the Borrower's Domestic Incorporated
Subsidiaries or any of the Borrower's Significant Foreign Subsidiaries
shall be entered; or an interim receiver, trustee or other custodian of the
Borrower, any of the Borrower's Domestic Incorporated Subsidiaries or any
of the Borrower's Significant Foreign Subsidiaries or of all or a
substantial part of the property of the Borrower, any of the Borrower's
Domestic Incorporated Subsidiaries or any of the Borrower's Significant
Foreign Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the property
of the Borrower, any of the Borrower's Domestic Incorporated Subsidiaries
or any of the Borrower's Significant Foreign Subsidiaries shall be issued
and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appointment or issuance.
(G) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Borrower, any
of the Borrower's Domestic Incorporated Subsidiaries or any of the Borrower's
Significant Foreign Subsidiaries shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such
law, (iii) consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(H) JUDGMENTS AND ATTACHMENTS. Any money judgment(s) (other than a money
judgment covered by insurance as to which the applicable insurance company has
not disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any
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single case or in the aggregate an amount in excess of $15,000,000 is or are
entered and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days or in any event later than fifteen (15) days prior to
the date of any proposed sale thereunder.
(I) DISSOLUTION. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of sixty (60)
days; or the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(J) LOAN DOCUMENTS. At any time, for any reason, any Loan Document that
materially affects the ability of the Administrative Agent or any of the Lenders
to enforce the Obligations ceases to be in full force and effect or the Borrower
or any of the Borrower's Subsidiaries party thereto seek to repudiate their
respective obligations thereunder.
(K) TERMINATION EVENT. Any Termination Event occurs which is reasonably
likely to subject either the Borrower or any member of its Controlled Group to
liability in excess of $15,000,000.
(L) WAIVER OF MINIMUM FUNDING STANDARD. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Borrower or any Controlled
Group member to liability in excess of $15,000,000.
(M) CHANGE OF CONTROL. A Change of Control shall occur.
(N) ENVIRONMENTAL MATTERS. The Borrower or any of its Subsidiaries shall
be the subject of any proceeding or investigation pertaining to (i) the Release
by the Borrower or any of its Subsidiaries of any Contaminant into the
environment, (ii) the liability of the Borrower or any of its Subsidiaries
arising from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or Safety
Requirements of Law which by the Borrower or any of its Subsidiaries, which, in
any case, has or is reasonably likely to subject the Borrower to liability(which
is not covered by undenied indemnification by a creditworthy indemnitor) in
excess of $15,000,000.
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(O) GUARANTOR REVOCATION. Any guarantor of the Obligations shall terminate
or revoke any of its obligations under the Subsidiary Guaranty or breach any of
the material terms of the Subsidiary Guaranty.
(P) RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS. An event (such event, a
"RECEIVABLES FACILITY TRIGGER EVENT") shall occur which (i) permits the
investors or purchasers in respect of Receivables Facility Attributed
Indebtedness of the Borrower or any Affiliate of the Borrower to require the
amortization or liquidation of such Receivables Facility Attributed Indebtedness
in an aggregate outstanding amount in excess of $15,000,000 and (x) such
Receivables Facility Trigger Event shall not be remedied or waived within the
later to occur of the tenth day after the occurrence thereof or the expiry date
of any grace period related thereto under the agreement evidencing such
Receivables Facility Attributed Indebtedness, or (y) such investors shall
require the amortization or liquidation of such Receivables Facility Attributed
Indebtedness as a result of such Receivables Facility Trigger Event, (ii)
results in the termination of reinvestments of collections or proceeds of
receivables and related assets under the agreements evidencing such Receivables
Facility Attributed Indebtedness, or (iii) causes or otherwise permits the
replacement or substitution of the Borrower or any Affiliate thereof as the
servicer under the agreements evidencing such Receivables Facility Attributed
Indebtedness; provided, however, that this SECTION 8.1(P) shall not apply on any
date with respect to any voluntary request by the Borrower or an Affiliate
thereof for an above-described amortization, liquidation, or termination of
reinvestments so long as the aforementioned investors or purchasers cannot
independently require on such date such amortization, liquidation or termination
of reinvestments.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1. TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION. If any
Default described in SECTION 8.1(F) or 8.1(G) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans hereunder and the
obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other
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Default occurs, the Required Lenders may terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation of the Issuing Banks to
issue Letters of Credit hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower expressly waives.
9.2. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan or issuance of such Letter of
Credit shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to SECTION 9.3,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full in cash.
9.3. AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; PROVIDED, HOWEVER, that no such supplemental
agreement shall, without the consent of each Lender (which is not a defaulting
Lender under the provisions of SECTIONS 2.19 OR 10.2) affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date or any
other date fixed for any payment of principal of, or interest on, the
Loans, the Reimbursement Obligations or any fees or other amounts payable
to such Lender or any modifications of the provisions relating to
prepayments of Loans and other Obligations;
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(ii) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees thereon;
PROVIDED, HOWEVER, that a waiver of the application of the default rate of
interest pursuant to SECTION 2.10 hereof shall only require the approval of
the Required Lenders.
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement to act on specified matters or amend the
definitions of "Required Lenders" or "Pro Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment of any
Lender hereunder or increase any Lender's Pro Rata Share.
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) Other than pursuant to a transaction permitted by the terms of
this Agreement, release any guarantor from its obligations under the
Subsidiary Guaranty.
(vii) Amend this SECTION 9.3.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) Swing Line Loans shall be effective without the
written consent of the Swing Line Bank, and (c) any Issuing Bank shall be
effective without the written consent of such Issuing Bank. The Administrative
Agent may waive payment of the fee required under SECTION 13.3(C) without
obtaining the consent of any of the Lenders.
ARTICLE X: GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of this
Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and payable under any
Loan Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any
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limitation or prohibition provided by any applicable statute or regulation.
10.3. INTENTIONALLY OMITTED.
10.4. HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
10.7. EXPENSES; INDEMNIFICATION.
(A) EXPENSES. The Borrower shall reimburse the Administrative Agent and
the Arranger for any reasonable costs and out-of-pocket expenses (including
reasonable attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent, which attorneys and paralegals may be
employees of the Administrative Agent) paid or incurred by the Administrative
Agent or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent and the Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent, the Arranger and the Lenders, which attorneys and
paralegals may be employees of the Administrative Agent, or the Arranger or the
Lenders) paid or incurred by the Administrative Agent, or the Arranger, or any
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents.
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(B) INDEMNITY. The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Administrative Agent, the Arranger, and each and all of
the Lenders and each of their respective Affiliates, and each of such
Administrative Agent's, Arranger's, Lender's, or Affiliate's respective
officers, directors, trustees, investment advisors, employees, attorneys and
agents (including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
ARTICLE V) (collectively, the "INDEMNITEES"), based upon its obligations, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of:
(i) this Agreement or any of the other Loan Documents, or any act,
event or transaction related or attendant thereto or to the making of the
Loans, and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or Letters of Credit, the use or
intended use of the proceeds of the Loans or Letters of Credit hereunder,
or any of the other transactions contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental,
health or safety condition of any respective property of the Borrower or
its Subsidiaries, the presence of asbestos-containing materials at any
respective property of the Borrower or its
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Subsidiaries or the Release or threatened Release of any Contaminant into
the environment (collectively, the "INDEMNIFIED MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters to the extent caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee
with respect to the Loan Documents, as determined by the final non-appealable
judgment of a court of competent jurisdiction. If the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
(C) WAIVER OF CERTAIN CLAIMS; SETTLEMENT OF CLAIMS. The Borrower further
agrees to assert no claim against any of the Indemnitees on any theory of
liability seeking consequential, special, indirect, exemplary or punitive
damages. No settlement shall be entered into by the Borrower or any of its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement, the other Loan Documents unless such settlement releases all
Indemnitees from any and all liability with respect thereto.
(D) SURVIVAL OF AGREEMENTS. The obligations and agreements of the Borrower
under this SECTION 10.7 shall survive the termination of this Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in Hedging Agreements or to
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legal counsel, accountants and other professional advisors to such
counterparties, (vii) permitted by SECTION 13.4, and (viii) to rating requires
if requested or required by such agencies in connection with a rating relating
to the Advances hereunder.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.11. NONLIABILITY OF LENDERS. The relationship between the Borrower and
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
10.12. GOVERNING LAW. ANY DISPUTE BETWEEN THE BORROWER AND THE
ADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THE BORROWER AND THE LENDERS
IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS SECTION 105/5-1 ET SEQ.
BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS.
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) NON-EXCLUSIVE JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT
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OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
(B) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS,
PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY
THE ADMINISTRATIVE AGENT OR THE LENDERS BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE BORROWER ADDRESSED AS PROVIDED HEREIN. NOTHING HEREIN SHALL IN
ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR THE
LENDERS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(D) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 10.7 AND THIS SECTION 10.13, WITH ITS COUNSEL.
10.14. SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. The Borrower agrees that
any and all claims of the Borrower against any of its Subsidiaries that is a
guarantor with respect to any indebtedness of any guarantor to the Borrower
("INTERCOMPANY INDEBTEDNESS"), any endorser, obligor or any other guarantor of
all or any part of the Obligations, or against any of its properties, including,
without limitation, claims arising from liens or security interests upon
property, shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations; PROVIDED that, and not in
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contravention of the foregoing, so long as no Default has occurred and is
continuing the Borrower may make loans to and receive payments in the ordinary
course with respect to such Intercompany Indebtedness from each such guarantor
to the extent permitted by the terms of this Agreement and the other Loan
Documents. Should any payment, distribution, security or instrument or proceeds
thereof be received by the Borrower upon or with respect to the Intercompany
Indebtedness in contravention of this Agreement or the Loan Documents or after
the occurrence of a Default, including, without limitation, an event described
in SECTION 8.1(F) or (G), prior to the satisfaction of all of the Obligations
(other than contingent indemnity obligations) and the termination of all
financing arrangements pursuant to any Loan Document or Hedging Agreement among
the Borrower and the Lenders (and their Affiliates), the Borrower shall receive
and hold the same in trust, as trustee, for the benefit of the holders of the
Obligations and shall forthwith deliver the same to the Administrative Agent,
for the benefit of such Persons, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), for application to
any of the Obligations, due or not due, and, until so delivered, the same shall
be held in trust by the Borrower as the property of the holders of the
Obligations. If the Borrower fails to make any such endorsement or assignment to
the Administrative Agent, the Administrative Agent or any of its officers or
employees are irrevocably authorized to make the same. The Borrower agrees that
until the Obligations (other than the contingent indemnity obligations) have
been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document or Hedging Agreement among the Borrower and the
Lenders (and their Affiliates) have been terminated, the Borrower will not
assign or transfer to any Person (other than the Administrative Agent) any claim
the Borrower has or may have against any guarantor.
ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1. APPOINTMENT; NATURE OF RELATIONSHIP. Bank One is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this ARTICLE XI. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed
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that the Administrative Agent shall not have any fiduciary responsibilities to
any Lender by reason of this Agreement and that the Administrative Agent is
merely acting as the representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-102 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders, for itself and on
behalf of its affiliates, agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender waives.
11.2. POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
11.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the
gross negligence or willful misconduct of such Person.
11.4. NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in ARTICLE V, except receipt
of items
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required to be delivered solely to the Administrative Agent; (iv) the existence
or possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or in
any of the other Loan Documents for the execution, effectiveness, genuineness,
validity, legality, enforceability, collectibility, or sufficiency of this
Agreement or any of the other Loan Documents or the transactions contemplated
thereby, or for the financial condition of any guarantor of any or all of the
Obligations, the Borrower or any of its Subsidiaries.
11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all of the Lenders in the event that and to the
extent that this Agreement expressly requires such), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all owners of Loans. Upon receipt of any such instructions
from the Required Lenders (or all of the Lenders in the even that and to the
extent that this Agreement expressly requires such), the Administrative Agent
shall be permitted to act on behalf of the full principal amount of the
Obligations. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
11.6. EMPLOYMENT OF ADMINISTRATIVE AGENT AND COUNSEL. The Administrative
Agent may execute any of its duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
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11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8. THE ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to its respective Pro Rata Shares (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other expenses incurred
by the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from the gross negligence or willful misconduct of the Administrative
Agent.
11.9. RIGHTS AS A LENDER. With respect to its Revolving Loan Commitment,
Loans made by it, and Letters of Credit issued by it, the Administrative Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender or Issuing Bank and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders", "Issuing
Bank" or "Issuing Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
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11.10. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
11.11. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Borrower and the Lenders, a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor
Administrative Agent shall be subject to approval by the Borrower, which
approval shall not be unreasonably withheld. Such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
ARTICLE XI shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
11.12. NO DUTIES IMPOSED UPON ARRANGER. No Person identified on the cover
page to this Agreement, the signature
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pages to this Agreement or otherwise in this Agreement as an "Arranger" shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than if such Person is a Lender, those applicable to all Lenders
as such. Without limiting the foregoing, no Person identified on the cover page
to this Agreement, the signature pages to this Agreement or otherwise in this
Agreement as an "Arranger" shall have or be deemed to have any fiduciary duty to
or fiduciary relationship with any Lender. In addition to the agreement set
forth in SECTION 11.10, each of the Lenders acknowledges that it has not relied,
and will not rely, on any Person so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
11.13. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.
11.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Administrative Agent may delegate any of its duties under this Agreement to
any of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents, and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which the Administrative Agent is entitled
under terms of this Agreement.
11.15. INTERCREDITOR AGREEMENT AND SUBSIDIARY GUARANTY. Each Lender
authorizes the Administrative Agent to enter into each of the Intercreditor
Agreement and the Subsidiary Guaranty on behalf and for the benefit of such
Lender and to take all actions contemplated by such documents, including,
without limitation, all enforcement actions.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1. SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available)
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may be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
12.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 2.14(E), 4.1, 4.2, or 4.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to the obligations owing to them. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
12.3. APPLICATION OF PAYMENTS. If the Borrower, prior to the occurrence of
a Default, has remitted a payment to the Administrative Agent or any Lender
without indicating the Obligation to be reduced thereby, or at any time after
the occurrence of a Default, subject to the provisions of SECTION 9.2, the
Administrative Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this SECTION 12.3, apply all payments and prepayments in respect of any
Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any Lender
for which the Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the issuer(s) of
Letters of Credit;
(D) fourth, to pay interest due in respect of Swing Line Loans;
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(E) fifth, to pay interest due in respect of Loans (other than Swing Line
Loans and L/C Obligations);
(F) sixth, to the ratable payment or prepayment of principal outstanding
on Swing Line Loans;
(G) seventh, to the ratable payment or prepayment of principal outstanding
on Loans (other than Swing Line Loans) and Reimbursement Obligations in such
order as the Administrative Agent may determine in its sole discretion;
(H) eighth, to provide required cash collateral, if required pursuant to
SECTION 3.11; and
(I) ninth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and THEN to repay outstanding Eurocurrency Rate
Loans with those Eurocurrency Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this SECTION 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of
Letters of Credit as among themselves. Upon written notice to the Borrower, the
order of priority set forth in CLAUSES (C) through (I) of this SECTION 12.3 may
at any time and from time to time be changed by the Required Lenders without
consent of or approval by the Borrower, or any other Person; PROVIDED, that the
order of priority of payments in respect of Swing Line Loans may be changed only
with the prior written consent of the Swing Line Bank. The order of priority set
forth in CLAUSES (A) and (B) of this SECTION 12.3 may be changed only with the
prior written consent of the Administrative Agent.
12.4. RELATIONS AMONG LENDERS.
(A) Except with respect to the exercise of set-off rights of any Lender in
accordance with SECTION 12.1, the proceeds of which are applied in accordance
with this Agreement, and except as set forth in the following sentence, each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, against the Borrower or any other obligor hereunder
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or with respect to any Loan Document, without the prior written consent of the
Required Lenders or, as may be provided in this Agreement or the other Loan
Documents, at the direction of the Administrative Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall be
liable for the acts or omissions of, or (except as otherwise set forth herein in
case of the Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders to
enforce on the payment of the principal of and interest on any Loan after the
date such principal or interest has become due and payable pursuant to the terms
of this Agreement.
12.5. REPRESENTATIONS AND COVENANTS AMONG LENDERS. Each Lender represents
and covenants for the benefit of all other Lenders and the Administrative Agent
that such Lender is not satisfying and shall not satisfy any of its obligations
pursuant to this Agreement with any assets considered for any purposes of ERISA
or Section 4975 of the Code to be assets of or on behalf of any "plan" as
defined in section 3(3) of ERISA or section 4975 of the Code, regardless of
whether subject to ERISA or Section 4975 of the Code.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS; DESIGNATED LENDERS.
(A) SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and the Lenders and their respective successors and assigns
permitted hereby, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior
written consent of each Lender, (ii) any assignment by any Lender must be made
in compliance with SECTION 13.3, and (iii) any transfer by Participants must be
made in compliance with SECTION 13.2. Any attempted assignment or transfer by
any party not made in compliance with this SECTION 13.1 shall be null and void,
unless such attempted assignment or transfer is treated as a participation in
accordance with SECTION 13.3(B). The parties to this Agreement acknowledge that
clause (ii) of this SECTION 13.1 relates only to absolute assignments and this
SECTION 13.1 does not prohibit assignments creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all
or any portion of its rights under this Agreement and any promissory note issued
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hereunder to a Federal Reserve Bank, (y) in the case of a Lender which is a
Fund, any pledge or assignment of all or any portion of its rights under this
Agreement and any promissory note issued hereunder to its trustee in support of
its obligations to its trustee or (z) any pledge or assignment by any Lender of
all or any portion of its rights under this Agreement and any promissory note
issued hereunder to direct or indirect contractual counterparties in interest
rate swap agreements relating to the Loans, but in all cases excluding credit
default swaps; PROVIDED, HOWEVER, that no such pledge or assignment creating a
security interest shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with the provisions
of SECTION 13.3. The Administrative Agent may treat the Person which made any
Revolving Loan or which holds any promissory note issued hereunder as the owner
thereof for all purposes hereof unless and until such Person complies with
SECTION 13.3; PROVIDED, HOWEVER, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Revolving Loan or which holds any promissory note issued
hereunder to direct payments relating to such Revolving Loan or promissory note
issued hereunder to another Person. Any assignee of the rights to any Revolving
Loan or any promissory note issued hereunder agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a promissory note has been issued hereunder in evidence
thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan.
(B) DESIGNATED LENDERS.
(i) Subject to the terms and conditions set forth in this SECTION
13.1(B), any Lender may from time to time elect to designate an Eligible
Designee to provide all or any part of the Loans to be made by such Lender
pursuant to this Agreement; PROVIDED that the designation of an Eligible
Designee by any Lender for purposes of this SECTION 13.1(B) shall be
subject to the approval of the Administrative Agent (which consent shall
not be unreasonably withheld or delayed). Upon the execution by the parties
to each such designation of an agreement in the form of EXHIBIT L hereto (a
"DESIGNATION AGREEMENT") and the acceptance thereof by the Administrative
Agent, the Eligible Designee shall become a Designated Lender for
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purposes of this Agreement. The Designating Lender shall thereafter have
the right to permit the Designated Lender to provide all or a portion of
the Loans to be made by the Designating Lender pursuant to the terms of
this Agreement and the making of the Loans or portion thereof shall satisfy
the obligations of the Designating Lender to the same extent, and as if,
such Loan was made by the Designating Lender. As to any Loan made by it,
each Designated Lender shall have all the rights a Lender making such Loan
would have under this Agreement and otherwise; PROVIDED, (x) that all
voting rights under this Agreement shall be exercised solely by the
Designating Lender, (y) each Designating Lender shall remain solely
responsible to the other parties hereto for its obligations under this
Agreement, including the obligations of a Lender in respect of Loans made
by its Designated Lender and (z) no Designated Lender shall be entitled to
reimbursement under ARTICLE IV hereof for any amount which would exceed the
amount that would have been payable by the Borrower to the Lender from
which the Designated Lender obtained any interests hereunder. No additional
promissory notes shall be required to be issued hereunder with respect to
Loans provided by a Designated Lender; PROVIDED, HOWEVER, to the extent any
Designated Lender shall advance funds, the Designating Lender shall be
deemed to hold the promissory notes issued hereunder in its possession as
an administrative agent for such Designated Lender to the extent of the
Loan funded by such Designated Lender. Such Designating Lender shall act as
an administrative agent for its Designated Lender and give and receive
notices and communications hereunder. Any payments for the account of any
Designated Lender shall be paid to its Designating Lender as administrative
agent for such Designated Lender and neither the Borrower nor the
Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may (1)
with notice to, but without the consent of the Borrower or the
Administrative Agent, assign all or portions of its interests in any Loans
to its Designating Lender or to any financial institution consented to by
the Administrative Agent providing liquidity and/or credit facilities to or
for the account of such Designated Lender and (2) subject to advising any
such Person that such information is to be treated as confidential in
accordance with SECTION 13.4, disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial
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paper dealer or provider of any guarantee, surety or credit or liquidity
enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after the payment in full
of all outstanding senior indebtedness of any Designated Lender; PROVIDED
that the Designating Lender for each Designated Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of its inability to institute any such
proceeding against such Designated Lender. This SECTION 13.1(B) shall
survive the termination of this Agreement.
13.2. PARTICIPATIONS.
(A) PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Revolving Credit Obligations of such Lender, any promissory note issued
hereunder held by such Lender, any Revolving Loan Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the owner of its Revolving Credit
Obligations and the holder of any promissory note issued to it hereunder in
evidence thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
(B) VOTING RIGHTS. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which would require consent of all of the Lenders
pursuant to the terms of SECTION 9.3.
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(C) BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in SECTION 12.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, PROVIDED that each
Lender shall retain the right of setoff provided in SECTION 12.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in SECTION 12.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with SECTION 12.2 as if each Participant were a Lender.
The Borrower further agrees that each Participant shall be entitled to the
benefits of ARTICLE IV to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to SECTION 13.3, PROVIDED that (i)
a Participant shall not be entitled to receive any greater payment under ARTICLE
IV than the Lender who sold the participating interest to such Participant would
have received had it retained such interest for its own account, unless the sale
of such interest to such Participant is made with the prior written consent of
the Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of ARTICLE IV to the same extent as if it were a Lender.
13.3. ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. Any Lender may at any time assign to one or more
banks or other entities ("PURCHASERS") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be evidenced by an
agreement substantially in the form of EXHIBIT D or in such other form as may be
agreed to by the parties thereto (each such agreement, an "ASSIGNMENT
AGREEMENT"). Each such assignment with respect to a Purchaser which is not a
Lender or an Affiliate of a Lender or an Approved Fund shall, unless otherwise
consented to in writing by the Borrower and the Administrative Agent, either be
in an amount equal to the entire applicable Revolving Credit Obligations of the
assigning Lender or (unless each of the Borrower and the Administrative Agent
otherwise consents) be in an aggregate amount not less than $5,000,000. The
amount of the assignment shall be based on the Revolving Credit Obligations
subject to the assignment, determined as of the date of such
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assignment or as of the "Trade Date," if the "Trade Date" is specified in the
Assignment Agreement.
(B) CONSENTS. The consent of the Borrower shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an Affiliate of
a Lender or an Approved Fund, provided that the consent of the Borrower shall
not be required if a Default has occurred and is continuing. The consent of the
Administrative Agent shall be required prior to an assignment becoming effective
unless the Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund.
Any consent required under this SECTION 13.3(B) shall not be unreasonably
withheld or delayed.
(C) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Administrative Agent
of an Assignment Agreement, together with any consents required by SECTIONS
13.3(A) and 13.3(B), and (ii) payment of a $3,500 fee to the Administrative
Agent for processing such assignment (unless such fee is waived by the
Administrative Agent or unless such assignment is made to such assigning
Lender's Affiliate), such assignment shall become effective on the effective
date specified in such assignment. The Assignment Agreement shall contain a
representation and warranty by the Purchaser to the effect that none of the
funds, money, assets or other consideration used to make the purchase and
assumption of the Revolving Loan Commitment and Revolving Credit Obligations
under the applicable Assignment Agreement constitutes "plan assets" as defined
under ERISA and that the rights, benefits and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights, benefits and obligations of
a Lender under the Loan Documents, to the same extent as if it were an original
party thereto, and the transferor Lender shall be released with respect to the
Revolving Credit Obligations assigned to such Purchaser without any further
consent or action by the Borrower, the Lenders or the Administrative Agent. In
the case of an assignment covering all of the assigning Lender's rights,
benefits and obligations under this Agreement, such Lender shall cease to be a
Lender hereunder but shall continue to be entitled to the benefits of, and
subject to, those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the Loan Documents.
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
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SECTION 13.3 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
SECTION 13.2. Upon the consummation of any assignment to a Purchaser pursuant to
this SECTION 13.3(C), the transferor Lender, the Administrative Agent and the
Borrower shall, at no additional cost to the Borrower, and, if the transferor
Lender or the Purchaser desires that its Loans be evidenced by promissory notes,
make appropriate arrangements so that, upon cancellation and surrender to the
Borrower of the previously issued promissory notes (if any) held by the
transferor Lender, new promissory notes issued hereunder or, as appropriate,
replacement promissory notes are issued to such transferor Lender, if
applicable, and new promissory notes or, as appropriate, replacement promissory
notes, are issued to such Purchaser, in each case in principal amounts
reflecting their respective Revolving Loan Commitments (or, if the Revolving
Loan Termination Date has occurred, their respective Revolving Credit
Obligations), as adjusted pursuant to such assignment.
(D) THE REGISTER. The Administrative Agent, acting solely for this purpose
as an Administrative Agent of the Borrower (and the Borrower hereby designates
the Administrative Agent to act in such capacity), shall maintain at one of its
offices in Chicago, Illinois a copy of each Assignment and Assumption delivered
to it and a register (the "REGISTER") for the recordation of the names and
addresses of the Lenders, and the Revolving Loan Commitments of, and principal
amounts of and interest on the Loans owing to, each Lender pursuant to the terms
hereof from time to time and whether such Lender is an original Lender or
assignee of another Lender pursuant to an assignment under this SECTION 13.3.
The entries in the Register shall be conclusive, and the Borrower, the
Administrative 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 the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
13.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and
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its Subsidiaries; PROVIDED, that each Transferee and prospective Transferee
agrees to be bound by SECTION 10.9 of this Agreement.
13.5. TAX CERTIFICATIONS. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of ARTICLE IV.
ARTICLE XIV: NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.13 with
respect to Borrowing/Election Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid, shall be deemed
given when received; any notice, if transmitted by telex or facsimile, shall be
deemed given when transmitted (answer back confirmed in the case of telexes).
14.2. CHANGE OF ADDRESS. Each of the Borrower and the Administrative Agent
may change the address for service of notice upon it by a notice in writing to
the other parties hereto, including, without limitation, each Lender. Each
Lender may change the address for service of notice upon it by a notice in
writing to the Borrower and the Administrative Agent.
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
▇▇▇▇▇▇▇▇ GOVERNOR
COMPANY, as the Borrower
By:
----------------------------------
Name:
Title:
Address:
Attention:
--------------------------
Telephone No.:
---------------------
Facsimile No.:
---------------------
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent, as Swing
Line Lender, as an Issuing Bank
and as a Lender
By:
----------------------------------
Name:
Title:
Address:
Attention:
--------------------------
Telephone No.:
---------------------
Facsimile No.:
---------------------
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇
CREDIT AGREEMENT
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