3215599.01
Exhibit 10.12
CREDIT AGREEMENT
dated as of
March 7, 1997
among
CABLETRON SYSTEMS, INC.,
CERTAIN SUBSIDIARY BORROWERS,
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO
as Syndication Agent
$250,000,000 REVOLVING CREDIT FACILITY
TABLE OF CONTENTS
ARTICLE IDefinitions 5
SECTION 1.01. Defined Terms. 5
SECTION 1.02. Classification of Loans and Borrowings 18
SECTION 1.03. Terms Generally 18
SECTION 1.04 Accuonting Terms; GAAP 19
ARTICLE IIThe Credits 19
SECTION 2.01. Commitments19
SECTION 2.02. Loans and Borrowings 19
SECTION 2.03. Requests for Borrowings 20
SECTION 2.04. Letters of Credit 21
SECTION 2.05. Funding of Borrowings 25
SECTION 2.06. Interest Elections 25
SECTION 2.07. Termination, Reduction and Extension of Commitments 27
SECTION 2.08. Repayment of Loans; Evidence of Debt 29
SECTION 2.09. Prepayment of Loans 29
SECTION 2.10. Fees 30
SECTION 2.11. Interest 31
SECTION 2.12. Alternate Rate of Interest 32
SECTION 2.13. Increased Costs 32
SECTION 2.14. Break Funding Payments 33
SECTION 2.15. Taxes 34
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs 35
SECTION 2.17. Mitigation Obligations; Replacement of Lenders 36
SECTION 2.18. Increase of Commitments 37
ARTICLE III 39
SECTION 3.01 The Guarantee 39
SECTION 3.02 Obligations Unconditional 39
SECTION 3.03 Reinstatement 40
SECTION 3.04 Subrogation 40
SECTION 3.05 Remedies 41
SECTION 3.06 Instrument for the Payment of Money 41
SECTION 3.07 Continuing Guarantee 41
ARTICLE IVRepresentations and Warranties 41
SECTION 4.01. Organization; Powers 41
SECTION 4.02. Authorization; Enforceability 41
SECTION 4.03. Governmental Approvals; No Conflicts 42
SECTION 4.04. Financial Condition; No Material Adverse Change42
SECTION 4.05. Properties 42
SECTION 4.06. Litigation and Environmental Matters 43
SECTION 4.07. Compliance with Laws and Agreements 43
SECTION 4.08. Investment and Holding Company Status43
SECTION 4.09. Taxes 43
SECTION 4.10. ERISA.43
SECTION 4.11. Disclosure 44
ARTICLE VConditions 44
SECTION 5.01. Effective Date 44
SECTION 5.02. Each Credit Event 45
SECTION 6.01. Financial Statements and Other Information45 SECTION 6.02.
Notices of Material Events 47 SECTION 6.03. Existence; Conduct of Business
47 SECTION 6.04. Payment of Obligations 47 SECTION 6.05. Maintenance of
Properties; Insuranc 47 SECTION 6.06. Books and Records; Inspection Rights
48 SECTION 6.07. Compliance with Laws 48 SECTION 6.08. Use of Proceeds 48
ARTICLE VIINegative Covenants 48
SECTION 7.01. Indebtedness 48
SECTION 7.02. Liens 49
SECTION 7.03. Fundamental Changes 49
SECTION 7.04. Investments, Loans, Advances, Guarantees and Acquisitions;
Hedging Agreements. 50
SECTION 7.05. Transactions with Affiliates 52
SECTION 7.06. Restrictive Agreements 52
SECTION 7.07. Leverage Ratio. 53
SECTION 7.08. Interest Coverage Ratio 53
SECTION 7.09. Tangible Net Worth 53
ARTICLE XMiscellaneous 57
SECTION 10.01. Notices 57
SECTION 10.02. Waivers; Amendments 58
SECTION 10.03. Expenses; Indemnity: Damage Waiver 59
SECTION 10.04. Successors and Assigns 60
SECTION 10.05. Survival. 62
SECTION 10.06. Counterparts; Integration Effectiveness 62
SECTION 10.07. Severability 63
SECTION 10.08. Right of Setoff63
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process 63
SECTION 10.10. WAIVER OF JURY TRIAL 64
SECTION 10.11. Headings 64
SECTION 10.12. Confidentiality64
SECTION 10.13. Subsidiary Borrowers 65
CREDIT AGREEMENT dated as of March 7, 1997, among CABLETRON SYSTEMS, INC., each
of the subsidiaries of the Company designated by the Company from time to time
as Subsidiary Borrowers hereunder, the LENDERS party hereto, THE CHASE MANHATTAN
BANK, as Administrative Agent, and THE FIRST NATIONAL BANK OF CHICAGO, as
Syndication Agent. The parties hereto agree as follows:
ARTICLE I
DefinitionsARTICLE IDefinitions
As used in this Agreement, the following terms have the meanings specified
below:
", when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Ouestionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day or (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of it. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage of
the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Loan or with respect to the facility fees payable hereunder, the
applicable rate per annum set forth in the table below under the caption "ABR
Spread", "Eurodollar Spread" or "Facility Fee Rate", as the case may be, set
forth opposite the applicable Leverage Ratio as at the last day of the most
recently ended fiscal quarter of the Company for which financial statements have
been delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be,
together with the related compliance certificate for such fiscal quarter or
fiscal year, as the case may be, required by Section 6.01(c).
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Range of Leverage ABR Spread Eurodollar Spread Facility Fee
Ratio: Rate
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Greater than or equal 0% 0.45% 0.20%
to 2.00 to 1
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Greater than or equal 0% 0.30% 0.15%
to 1.00 to 1 and less
than 2.00 to 1
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Greater than or equal 0% 0.25% 0.125%
to 0.50 to 1 and less
than 1.00 to 1
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Less than 0.50 to 1 0% 0.20% 0.10%
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From and including the Effective Date to but excluding the fifth Business Day
following the date of receipt of the first financial statements delivered
pursuant to Section 6.01(a) or 6.01(b), as the case may be, together with the
related compliance certificate for such fiscal quarter or fiscal year, as the
case may be, required by Section 6.01(c), the "Applicable Rate" shall be
determined in accordance with the certificate delivered pursuant to Section
5.01(d). The "Applicable Rate" shall be adjusted on the fifth Business Day
following the date of receipt of the relevant financial statements pursuant to
Section 6.01(a) or 6.01(b), as the case may be, and the related compliance
certificate for such fiscal quarter or fiscal year, as the case may be, required
by Section 6.01(c). In the event the financial statements for any fiscal quarter
or fiscal year or the certificate required by Section 6.01(c) are not delivered
when due and such financial statements and/or certificate are not delivered
prior to the date upon which the resultant Default shall become an Event of
Default, then, effective upon such Default becoming an Event of Default, during
the period from the date upon which such financial statements were required to
be delivered until one Business Day following the date upon which they actually
are delivered, the Applicable Rate with respect to any ABR Loan or Eurodollar
Loan or with respect to the facility fees payable hereunder, as the case may be,
shall be the highest rate provided for in the above table; provided that,
notwithstanding the foregoing, the Applicable Rate shall not as a consequence of
this definition be reduced for any period during which an Event of Default
arising under clauses (a), (b), (d) (with respect to any covenant, condition or
agreement contained in Section 7.07, 7.08 or 7.09), (h), W or (j) of Article
VIII shall have occurred and be continuing.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee in accordance with Section 10.04(b) (with the
consent of any party whose consent is required by Section 10.04(b)), and
accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective Date
to but excluding the earlier of the Maturity Date and the date of termination of
the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the United
States of America.
"Borrowers" means the Company and each Subsidiary Borrower.
"Borrowing" means Loans of the same Type, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest
Period is in effect.
"Borrowing Request" means a request by the Company for a Borrowing in
accordance with section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof) (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, S.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇), of shares
representing more than 40 of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were neither (i) nominated by the board of directors of
the Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.13(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07, (b) increased
from time to time pursuant to Section 2.18 and (c) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Commitment, as applicable.
"Company" means Cabletron Systems, Inc., a Delaware corporation.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement and the promissory notes (if any)
delivered pursuant to Section 2.08(e).
"Credit Parties" means, collectively, the Borrowers and the Guarantor.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of America.
"EBITDA" means, for any period, the sum for the Company and its Subsidiaries
(determined on a consolidated basis without duplication) of the following: (a)
net income for such period (calculated after eliminating extraordinary gains and
losses and unusual or non-recurring items) plus (b) income and other taxes (to
the extent deducted in determining net income) for such period plus (c)
depreciation, amortization and any other non-cash charges, including, without
limitation, purchase accounting adjustments required or permitted by Opinions
No. 16 and 17 of the Accounting Principles Board and the write-off of
in-progress technology and research and development in connection with a
permitted acquisition (to the extent deducted in determining net income) for
such period plus (d) the aggregate amount of Interest Expense for such period
minus (e) the aggregate amount of interest income for such period (to the extent
not included in computing Interest Expense).
"Effective Date" means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VIII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or any state or political subdivision thereof, or by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located, or in each case any political subdivision thereof, (b) any
branch profits taxes imposed by the United States of America or any state or
political subdivision thereof or any similar tax imposed by any other
jurisdiction in which any Borrower is located, or any political subdivision
thereof, and (c) in the case of a Foreign Lender to the Company or any
Subsidiary Borrower organized under the laws of the United States of America or
any State thereof (other than an assignee pursuant to a request by the Company
under Section 2.17(b)), any withholding tax that is imposed on amounts payable
by the Company or such Subsidiary Borrower, as the case may be, to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (except
to the extent that such Foreign Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Company or such
Subsidiary Borrower, as the case may be, with respect to such withholding tax
pursuant to Section 2.15(a)) or is attributable to such Foreign Lender's failure
or inability to comply with Section 2.15(e).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1% of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantor" means the Company, as guarantor of the obligations of the Subsidiary
Borrowers.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
due more than one year from the date of purchase, (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others other
than Permitted Vendor Financing, (g) all Capital Lease Obligations of such
Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty exceeding
$50,000,000 in the aggregate, W all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances and (j) (for purposes of the
Leverage Ratio only) all obligations of such Person under any lease treated as
an operating lease under GAAP and as a loan or financing for U.S. income tax
purposes (and, for purposes of determining the amount of Indebtedness reflected
by such lease, the stipulated loss value, termination value or other equivalent
amount shall be used). The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other Taxes.
"Interest Coverage Ratio" means, as at any date, the ratio of (a) EBITDA
for the period of four consecutive fiscal quarters of the Company ending on, or
most recently ended prior to, such date to (b) Interest Expense paid or payable
in cash for such period.
"Interest Election Request" means a request by the Company to convert or
continue a Borrowing in accordance with Section 2.09.
"Interest Expense" means, for any period, the sum, for the Company and its
Subsidiaries (determined on a consolidated basis without duplication), of the
following: (a) all interest in respect of Indebtedness accrued or capitalized
during such period (whether or not actually paid during such period) plus (b)
the net amounts payable (or minus the net amounts receivable) under interest
rate protection agreements accrued during such period (whether or not actually
paid or received during such period) including, without limitation, fees, but
excluding reimbursement of legal fees and other similar transaction costs.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months, duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months, duration
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, nine or twelve months) thereafter, as the
Company may elect; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day-of the last calendar month of such
Interest Period. For purposes of this definition, the date of a Borrowing shall
be the date on which such Borrowing is made or the effective date of the most
recent conversion or continuation of a Borrowing, as the case may be.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.04(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Company at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
Section 2.07 or Section 2.18, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance or Section 2.07.
"Letter of Credit" means any letter of credit issued pursuant to this Agreement.
"Leverage Ratio" means, as at any date, the ratio of (a) all Indebtedness of the
Company and its Subsidiaries (determined on a consolidated basis without
duplication) on such date to (b) EBITDA for the period of four consecutive
fiscal quarters of the Company ending on, or most recently ended prior to, such
date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset or (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.
"Loans" means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
"Margin Stock" means "margin stock" within the meaning of Regulations U
and X of the Board (or any successor regulation thereto).
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Company and its Subsidiaries taken as a whole, (b) the ability of any Credit
Party to perform any of its obligations under any of the Credit Documents to
which it is a party or (c) the rights or remedies of the Lenders under the
Credit Documents.
"Material Subsidiary" means, as of any date, any Subsidiary (a) the value
of whose net assets equals or exceeds 5% of the net assets of the Company and
its Subsidiaries on a consolidated basis or (b) whose net profits before
interest and taxation equals or exceeds 5% of the net profits before interest
and taxation of the Company and its Subsidiaries on a consolidated basis.
"Maturity Date" means March 31, 2000, subject to extension as provided in
Section 2.07(d).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemplover Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement and the other Credit Documents, provided that there shall be
excluded from "Other Taxes" all Excluded Taxes.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
statutory landlord's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 60 days or are being contested in compliance with Section
6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) Liens arising from judgments that do not constitute an Event of
Default under clause W of Article VIII;
(f) licenses, leases and subleases granted to other Persons in the
ordinary course of business; and
(g) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Company or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or
by any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, a credit
rating of at least A-2 from S&P or P-2 from Moody's;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$250,000,000;
(d) repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above;
(e) investments in money market mutual funds substantially all of the
assets of which are comprised of securities of the type set forth in
clauses (a), (b), (c), (d), (f) and/or (g) of this definition, so long as
such fund has total assets of at least $1,000,000,000 and has been
established for at least two years;
(f) investments in medium term notes issued by corporations or banks with
a long term debt rating of at least BBB+ by S&P or Baal by Moody's;
(g) investments in tax-exempt municipal obligations of any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, with a credit rating of
at least BBB+ by S&P or Baal by Moody's; and
(h) investments in auction rate preferred stock or money market preferred
stock, in each case with a credit rating of at least BBB+ by S&P or Baal
by Moody's.
"Permitted Vendor Financing" means Guarantees issued by the Company or any
Subsidiary in respect of obligations of customers in connection with the
financing of sales of inventory and services to such customers in an aggregate
amount at any one time not exceeding $100,000,000.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 10. 04 (c) .
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock of the Company or any option,
warrant or other right to acquire any such shares of capital stock of the
Company.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Loans and its LC
Exposure at such time.
"SEC" means the Securities and Exchange Commission or any governmental
authority succeeding to its principal functions.
"S&P" means Standard & Poors.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Borrower" means any Subsidiary designated as a Borrower pursuant to
Section 10.13.
"Syndication Agent" means The First National Bank of Chicago, in its
capacity as syndication agent hereunder.
"Tangible Net Worth" means, as at any date for any Person, the sum for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication), of the following:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such deficit);
minus
(c) the sum of the following: cost of treasury shares and the book value
of all assets that should be classified as intangibles (without
duplication of deductions in respect of items already deducted in arriving
at surplus and retained earnings) but in any event including goodwill,
minority interests, research and development costs, trademarks, trade
names, copyrights, patents and franchises, unamortized debt discount and
expense, all reserves and any write-up in the book value of assets
resulting from a revaluation thereof subsequent to February 29, 1996.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the Credit
Parties of the Credit Documents, the Borrowing of Loans hereunder, the use of
the proceeds thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and BorrowingsSECTION 1.02.
Classification . For purposes of this Agreement, Loans and Borrowings may be
classified and referred to by Type (e.g., a "Eurodollar Loan" or "Eurodollar
Borrowing", as the case may be).
. The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time; provided that, if the Company notifies the
Administrative Agent that the Company requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis, of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
ARTICLE IIThe Credits
. Subject to the terms and conditions set forth herein, each Lender agrees to
make Loans from time to time during the Availability Period to the Company or
one or more Subsidiary Borrowers hereunder in an aggregate principal amount that
will not result in such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Loans.
.ECTION 2.02. Loans and BorrowingsSECTION 2.02. Loans and Borrowings
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Company may request in accordance herewith.
Each Lender at its option may make any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrowers to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for Eurodollar Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000 and not less than $2,000,000. At the time that each ABR Borrowing is
made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $500,000; provided that an ABR Borrowing
may be in an aggregate amount that is equal to the amount that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of eight
Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Company
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
. To request a Borrowing, the Company shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 1:00 p.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Company. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii)the identity of the Borrower for such Borrowing;
(iv) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(vi) the location and number, of the account of the Company or the
applicable Subsidiary Borrower to which funds are to be disbursed.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Company shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
. SECTION 2.04. Letters of CreditSECTION 2.04. Letters of Credit
(a) General. Subject to the terms and conditions set forth herein, the
Company may request the issuance of Letters of Credit for its own account or for
the account of any Subsidiary, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Company to,
or entered into by the Company with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Company shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Company also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit, with
such changes thereto as the Company and the Issuing Bank may agree. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Company shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $50,000,000
and (ii) the sum of the total Revolving Credit Exposures shall not exceed the
total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of W the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender (other than the Issuing Bank), and each Lender (other than
the Issuing Bank) hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Company on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Company for any reason. Each Lender (other than
the Issuing Bank) acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever provided, however,
that no Lender shall be obligated to acquire a participation in a Letter of
Credit if, at the time such Letter of Credit was issued, the Issuing Bank had
been notified in writing by a Lender or the Company that an Event of Default had
occurred and was continuing.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Company shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 2:00 p.m., New York City time, on the date that such LC
Disbursement is made, if the Company shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Company prior to such time on such date,
then not later than 2:00 p.m., New York City time, on the Business Day that the
Company receives such notice, if such notice is received prior to 10:00 a.m.,
New York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Company receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that, if such LC
Disbursement is not less than $500,000, the Company may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 that such payment be financed with an ABR Borrowing in an equivalent amount
and, to the extent so financed, the Company's obligation to make such payment
shall be discharged and replaced by the resulting ABR Borrowing. If the Company
fails to make such payment when due, the Administrative Agent shall notify each
Lender of the applicable LC Disbursement, the payment then due from the Company
in respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Company, in the
same manner as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Loans as contemplated above) shall not constitute
a Loan and shall not relieve the Company of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of any lack of validity or enforceability of any Letter of Credit
or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with the
terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of the
Company's obligations hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Company to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Company to the extent permitted by
applicable law) suffered by the Company that are caused by the Issuing Bank's
failure to exercise the standard of care agreed hereunder (as set forth in the
next sentence) to be applicable when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that the Issuing Bank shall be deemed to have
exercised the agreed standard of care in the absence of gross negligence or
wilful misconduct on the part of the Issuing Bank when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof, and shall be deemed to have failed to exercise the agreed
standard of care only if it shall have engaged in gross negligence or wilful
misconduct when making such determination. In furtherance of the foregoing and
without limiting the generality thereof, it is understood that the Issuing Bank
may accept documents that appear on their face to be in substantial compliance
with the terms of a Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the contrary, and may
make payment upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit; provided that,
notwithstanding the foregoing, the Issuing Bank shall have the right, in its
sole discretion, to decline to accept such documents and to make such payment if
such documents are not in strict compliance with the terms of such Letter of
Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Company by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Company of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Company shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Company reimburses such Disbursement, at the
rate per annum then applicable to ABR Loans; provided that, if the Company fails
to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.11(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Company, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank, provided that the identity
of any successor Issuing Bank shall be subject to the approval of the Required
Lenders. The Administrative Agent shall notify the Lenders of any proposed
replacement of the Issuing Bank. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement,.but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 51% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Company shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Company
described in clause (h) or W of Article VIII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Company under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Company's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Company for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Company under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, the Administrative Agent shall, at the
request of the Company, release moneys in such account to the Company to the
extent the balance in such account exceeds the LC Exposure at such time. Any
amount that is not applied or released as aforesaid shall be returned to the
Company within three Business Days after all Events of Default have been cured
or waived.
. SECTION 2.05. Funding of BorrowingsSECTION 2.05. Funding of Borrowings
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 1:00
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to the account of the
Company or the Subsidiary Borrower specified by the Company pursuant to Section
2.03; provided that ABR Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to such Borrower to but excluding the date of payment to the Administrative
Agent, at W in the case of such Lender, the Federal Funds Effective Rate or (ii)
in the case of such Borrower, the interest rate applicable to the Loans made on
the occasion of such Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
.ECTION 2.06. Interest ElectionsSECTION 2.06. Interest Elections
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Company may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Company
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders and the Loans comprising each such portion shall be considered a
separate Borrowing, provided that each such Eurodollar Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not less than
$2,000,000. In the event that the Company, on the same day, converts or
continues all or any portion of two or more ABR or Eurodollar Borrowings into or
as Eurodollar Borrowings with Interest Periods of equal duration, the portions
of such Eurodollar Borrowings having Interest Periods of equal duration shall be
deemed to constitute a single Eurodollar Borrowing for purposes hereof.
(b) To make an election pursuant to this Section, the Company shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Company were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Company.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii)whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Company shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing W no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. Termination, Reduction and Extension of CommitmentsSECTION 2.07.
. Termination, Reduction and Extension of Commitments
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) The Company may at any time terminate, or from time to time reduce,
the Commitments; provided that W each reduction of the Commitments shall be in
an amount that is an integral multiple of $100,000 and not less than $500,000
and (ii) the Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.09, the sum of the Revolving Credit Exposures would exceed the total
Commitments.
(c) The Company shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities or any other
transaction specified in such notice, in which case such notice may be revoked
by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
(d) The Company may, by notice to the Administrative Agent (which shall
promptly notify the Lenders) not less than 60 days and not more the 90 days
prior to March 31st of any year (the "Applicable Extension Date"), request that
the Lenders extend the Maturity Date then in effect hereunder (the "Existince of
Maturity Date") for a period of one year from the Existing Maturity Date;
provided that the Company may request only two extensions pursuant to this
Section 2.07(d). Each Lender, acting in its sole discretion, shall, by notice to
the Administrative Agent (which shall notify the Company) given not later than
the date which is 30 days prior to the Applicable Extension Date (the "Consent
Date), advise the Administrative Agent whether or not such Lender agrees to such
extension; provided that each Lender that determines not to extend the Maturity
Date (a "Non-extendinq Lender") shall notify the Administrative Agent (which
shall notify the other Lenders and the Company) of such fact promptly after such
determination (but in any event no later than the Consent Date) and any Lender
that does not advise the Administrative Agent on or before the Consent Date
shall be deemed to be a Non-extending Lender. The election of any Lender to
agree to such extension shall not obligate any other Lender to so agree.
(ii) The Company shall have the right, at any time after the Consent Date
and on or before the Applicable Extension Date to replace any Non-extending
Lender with, and otherwise add to this Agreement, one or more other Persons
(which may include increasing the Commitment of any Lender) (each an "Additional
Commitment Lender"), with the approval of the Administrative Agent (which
approval shall not be unreasonably withheld), each of which Additional
Commitment Lenders shall have entered into an agreement in form and substance
satisfactory to the Company and the Administrative Agent pursuant to which such
Additional Commitment Lender shall, effective as of the Applicable Extension
Date (but only if the requisite Lenders shall have consented to the relevant
extension under clause (iii) below), undertake a Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender's Commitment hereunder on such date), provided that in
no event shall the aggregate amount of Commitments in effect immediately prior
to the request of an extension pursuant to this Section 2.07(d) be increased
pursuant to this Section 2.07(d).
(iii)If (and only if) the total of the Commitments of the Lenders that
have agreed under clause (ii) above so to extend the Maturity Date shall be at
least 80% of the aggregate amount of the Commitments in effect immediately prior
to the Consent Date, then, effective as of the Applicable Extension Date, the
Existing Maturity Date shall be extended by one year (except that, if such date
is not a Business Day, such Existing Maturity Date as so extended shall be the
next preceding Business Day) and each Additional Commitment Lender shall
thereupon become a "Lender" for all purposes of this Agreement.
Notwithstanding the foregoing, the extension of the Existing Maturity Date
shall not be effective with respect to any Lender unless:
(A) no Default shall have occurred and be continuing on and as of each of
the date of the notice requesting such extension and the Applicable
Extension Date;
(B) each of the representations and warranties made by the Credit Parties
in this Agreement and the other Credit Documents shall be true and
complete on and as of each of the date of the notice requesting such
extension and the Applicable Extension Date with the same force and effect
as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(C) each Non-extending Lender shall have been paid in full by the
Borrowers all amounts owing to such Lender hereunder on or before the
Applicable Extension Date.
Even if the Existing Maturity Date is extended as aforesaid, the Commitment of
each Non-extending Lender shall terminate on the Applicable Extension Date and
each Lender other than a Nonextending Lender shall, on such date, be deemed to
acquire its pro rata share of any participations in Letters of Credit held by
each Non-extending Lender on such date.
SECTION 2.08. Repayment of Loans; Evidence of DebtSECTION 2.08. Repayment of
Loans; evidence of Debt
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan made to such Borrower on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender to such Borrower, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record W the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the relevant Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; 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 Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in a form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes (payable to the order of each Lender holding a portion of such Loans or,
if such promissory note is a registered note, to such Lender and its registered
assigns).
.ECTION 2.09. Prepayment of LoansSECTION 2.09. Prepayment of Loans
(a) The Borrowers shall have the right at any time and from time to time
to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section without premium or penalty (except
to the extent provided in Section 2.14).
(b) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New York City
time, three Business Days before the date of repayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.
.ECTION 2.10. FeesSECTION 2.10. Fees
(a) The Company agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, which shall accrue at the Applicable Rate on the
daily amount of the Commitment of such Lender (whether used or unused) during
the period from and including the Effective Date to but excluding the date on
which such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such
facility fee shall continue to accrue on the daily amount of such Lender's
Revolving Credit Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued facility fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof; provided that any facility fees accruing after the date
on which the Commitments terminate shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Company agrees to pay to the Administrative Agent for the account
of each Lender a participation fee with respect to its participations in Letters
of Credit, which shall accrue at the Applicable Rate which is applicable to
Eurodollar Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate of 0.0625% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and participation fees, to the Lenders or, in the case
of fronting fees, to the Issuing Bank. Fees paid shall not be refundable under
any circumstances.
.ECTION 2.11. InterestSECTION 2.11. Interest
(a) The Loans comprising each ABR Borrowing shall bear interest at a rate
per annum equal to the sum of (i) the Alternate Base Rate plus (ii) the
Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
a rate per annum equal to the sum of (i) the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus (ii) the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrowers hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to in the case of overdue principal of any Loan, plus the rate
otherwise applicable to such Loan as provided above or (ii) in the case of any
other amount, plus the rate applicable to AER Loans as provided above.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; Provided that interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment, (iii) in the event of any conversion of any Eurodollar Loan prior to
the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion and (iv) all accrued
interest shall be payable upon termination of the Commitments.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
. If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:rest
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing.
.ECTION 2.13. Increased CostsSECTION 2.13. Increased Costs
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or any participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Company will pay to the Administrative Agent for the account of such Lender or
the Issuing Bank such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in the Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Company will pay to the
Administrative Agent for the account of such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or its holding company or the
Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Company (with a
copy to the Administrative Agent) and shall be conclusive absent manifest error.
The Company shall pay the Administrative Agent for the account of such Lender or
the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Company shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than six months prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof.
. In the event of (a) the payment of any principal of any Eurodollar Loan prior
to the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurodollar Loan prior to the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.09(b) and is revoked in accordance herewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Company pursuant to
Section 2.17, then, in any such event, the Company shall compensate each Lender
for the loss, cost and expense attributable to such event. The loss to any
Lender attributable to any such event shall be an amount determined by such
Lender to be equal to the excess, if any, of W the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan for
the period from the date of such payment, conversion, failure or assignment to
the last day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of the Interest Period
that would have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
.ECTION 2.15. TaxesSECTION 2.15. Taxes
(a) Any and all payments by or an account of any obligation of the Credit
Parties hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Credit Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the relevant Credit Party shall make such
deductions and (iii) such Credit Party shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) The Credit Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent, each Lender and
the Issuing Bank (by payment to the Administrative Agent for the account of such
Lender), within 10 days after written demand therefor (with a copy to the
Administrative Agent), for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, which any Credit
Party failed to pay under paragraphs (a) and (b) above and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided that the
Company shall have the right to contest, reasonably and in good faith to
appropriate Governmental Authorities, whether such Indemnified Taxes or Other
Taxes were correctly or legally asserted so long as the Company shall have
reimbursed to the Administrative Agent, such Lender or the Issuing Bank (as the
case may be) the amount so paid by the Administrative Agent, such Lender or the
Issuing Bank. A certificate as to the amount of such payment or liability
delivered to the Company by a Lender, by the Issuing Bank or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Credit Party to a Governmental Authority, such Credit Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offsSECTION 2.16. Payments Generally; Pro Rata Treatment;Sharing
of .etoffs
(a) Each Credit Party shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to 2:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
W first, to pay interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, to pay principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans and participations in LC Disbursements and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements; Provided that W if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Credit Parties
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Credit Parties or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Credit Parties consent to the foregoing and agree, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Credit Parties rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Credit
Parties in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that a
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the Issuing Bank with such
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of LendersSECTION 2.17.
.itigation Obligations; Replacement of Lenders
(a) If any Lender requests compensation under Section 2.13, or if the
Credit Parties are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment W would eliminate or
reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Credit Parties are required to pay any additional amount to any Lender or the
Administrative Agent or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); Provided that W the Company shall have received the prior written
consent of the Administrative Agent (and, if a Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, within five days after the Company notifies
such Lender of its intent to require such Lender to make the assignment
contemplated by this Section 2.17, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
. SECTION 2.18. Increase of CommitmentsSECTION 2.18. Increase of Commitments
(a) The Company shall have the right at any time prior to the Maturity
Date to increase the aggregate principal amount of the Commitments by an
aggregate amount for all such increases not exceeding $50,000,000 by (i)
requesting to the Administrative Agent that the existing Lenders increase the
aggregate principal amount of their Commitments in a principal amount not less
than $10,000,000 or an integral multiple of $1,000,000 in excess thereof or (ii)
adding one or more Persons to this Agreement as Lenders, with the approval of
the Administrative Agent (which approval shall not be unreasonably withheld),
provided that the Commitment of any such Person shall be in a principal amount
not less than $10,000,000 (or such lesser amount which, when added to the
existing Commitments, shall cause the aggregate principal amount of all
increases of the Commitments to equal $50,000,000). The Commitments may not be
increased pursuant to this Section 2.18 more than once during any calendar year.
(b) In the event that the Company exercises its option pursuant to clause
W of Section 2.18(a), the Administrative Agent shall promptly notify each Lender
of such request, and each Lender shall in turn, in its sole discretion, within
30 days after receipt of such notice, notify the Administrative Agent in
writing, which notice shall be irrevocable, (i) of the principal amount by which
it agrees to increase its Commitment (with respect to each such Lender, its
"Proposed Increased Commitment") or (ii) that it does not agree to increase its
Commitment. In no event shall a Lender's Proposed Increased Commitment exceed
the principal amount of the increase requested by the Company. If any Lender
shall fail to notify the Administrative Agent in writing of its decision to
increase its Commitment, such Lender shall be deemed not to agree to an
increase. The Administrative Agent shall first allocate the requested increase
of Commitments to each Lender that agrees to increase its Commitment in an
amount equal to such Lender's pro rata share of the requested increase
(determined in accordance with the existing Commitments) or, if such Lender's
Proposed Increased Commitment is less than its pro rata share of the requested
increase (determined in accordance with the existing Commitments), in an amount
equal to such Lender's Proposed Increased Commitment. The remaining portion of
the requested increase, if any, shall be allocated to the Lenders whose Proposed
Increased Commitments exceed their respective pro rata share of such requested
increase (determined in accordance with the existing Commitments) pro rata in
accordance with each such Lender's Proposed Increased Commitment. The
Administrative Agent shall notify the Company and the Lenders of such allocation
and the date such increase shall be effective, which date shall be not less than
5 Business Days after such notification has been given to the Company and the
Lenders. In no event shall a Lender's allocated share of the increased
Commitments exceed its Proposed Increased Commitment.
(c) In the event that the Company exercises its option pursuant to clause
(ii) of Section 2.18(a), each Person which shall be added as a Lender shall
promptly deliver to the Administrative Agent an agreement in form and substance
satisfactory to the Company and the Administrative Agent pursuant to which such
Person shall undertake a Commitment. Upon the effective date of such agreement
as specified therein, such Person shall become a Lender hereunder and the
Administrative Agent shall record the information reflecting such agreement in
the Register.
(d) Notwithstanding any other provision of this Section 2.18, the right of
the Company to increase the aggregate principal amount of the Commitments shall
be subject to the following conditions:
(i) no Default shall have occurred and be continuing on and as of each of
the date of the request by the Company referred to in Section 2.18(a) and
the effective date of the increase of Commitments under Section 2.18(b) or
the addition of a Lender pursuant to Section 2.18(c), as the case may be
(the "Relevant Increased Commitment Date");
(ii) the representations and warranties of the Credit Parties set forth in
this Agreement and the other Credit Documents shall be true and correct on
and as of the date of the request by the Company referred to in Section
2.18(a) and the Relevant Increased Commitment Date;
(iii)if any Loans shall be outstanding hereunder on any Relevant Increased
Commitment Date, the Company shall, notwithstanding any provisions
contained herein regarding the minimum amount or pro rata nature of such
borrowing or prepayment (A) borrow ABR Loans on the Relevant Increased
Commitment Date or, in the case of Eurodollar Loans, on the last day of
the first Interest Period(s) to expire thereafter (1) from the Lenders
increasing their Commitments (in the case of an increase effected pursuant
to Section 2.18(b)) or (2) from the Person or Persons becoming Lenders (in
the case of an increase effected pursuant to Section 2.18(c) and (B)
prepay AER Loans (on the Relevant Increased Commitment Date) and
Eurodollar Loans (on the last day of the first Interest Period(s) to
expire thereafter) owing to the other Lenders in such amounts and such
types that, after giving effect thereto, all of the Eurodollar Loans and
all of the AER Loans shall be allocated among the Lenders pro rata in
accordance with the amounts of their respective Commitments (after giving
effect to the increase in the aggregate amount of the Commitments), all in
accordance with Section 2.09 (other than any provision regarding the
minimum amount of such prepayment contained therein);
(iv) the Company shall not have reduced the Commitments pursuant to
Section 2.07(b); and
(v) at no time shall the aggregate principal amount of the Commitments
exceed $300,000,000.
Each request for an increase of the Commitments under this Section 2.18 shall be
deemed to constitute a representation and warranty by the Credit Parties as to
the matters specified in clauses and (ii) above (both as of the date of the
request by the Company referred to in Section 2.18(a) and, unless the Company
notifies the Administrative Agent to the contrary prior to the Relevant
Increased Commitment Date, on such Relevant Increased Commitment Date).
ARTICLE IIIARTICLE III
. The Company hereby guarantees to each Lender and the Administrative Agent and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest on the Loans made by the Lenders to, the Subsidiary Borrowers and
all other amounts from time to time owing to the Lenders, the Administrative
Agent or the Issuing Bank by the Subsidiary Borrowers under this Agreement
(collectively, the "Guaranteed Obligations"), in each case strictly in
accordance with the terms thereof. The Company hereby further agrees that if the
Subsidiary Borrowers shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Company will promptly on demand pay the same, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
. The obligations of the Company under Section 3.01 are absolute, unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Subsidiary Borrowers under this Agreement or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 3.02 that the obligations of the Company
hereunder shall be absolute and unconditional under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed, to the fullest
extent permitted by law, that the occurrence of any one or more of the following
shall not alter or impair the liability of the Company hereunder which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Company, the
time for any performance of or compliance with any of the Guaranteed obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement
or any other agreement or instrument referred to herein or therein shall be done
or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement or any
other agreement or instrument referred to herein or therein shall be waived or
any other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or otherwise dealt
with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
To the fullest extent permitted by law, the Company hereby expressly waives
diligence, presentment, demand of payment to any Subsidiary Borrower, protest
and all notices whatsoever, and any requirement that the Administrative Agent or
any Lender exhaust any right, power or remedy or proceed against the Subsidiary
Borrowers under this Agreement or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
. The obligations of the Company under this Article III shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Subsidiary Borrower in respect of the Guaranteed obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise and the Company agrees that it will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
. The Company hereby waives, until payment in full of the Guaranteed
obligations, all rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any such right
arising under the U.S. Bankruptcy Code) or otherwise by reason of any payment by
them pursuant to the provisions of this Article III.
. The Company agrees that, as between the Company and the Lenders, the
obligations of the Subsidiary Borrowers under this Agreement may be declared to
be forthwith due and payable as provided in Article VIII (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Article VIII) for purposes of Section 3.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Subsidiary Borrowers and
that, in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Subsidiary Borrowers) shall forthwith become due and payable by
the Company for purposes of Section 3.01.
SECTION 3.06 Instrument for the Payment of MoneySECTION 3.06 Instrument for
the . The Company hereby acknowledges that the guarantee in this Article III
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3324.
. The guarantee in this Article III is a continuing guarantee, and shall apply
to all Guaranteed Obligations whenever arising.
ARTICLE IV
Representations and WarrantiesARTICLE IVRepresentations and Warranties
Each Credit Party represents and warrants (as to itself and its
Subsidiaries only) to the Lenders that:
. Each of the Company and its Subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 4.02. Authorization; EnforceabilitySECTION 4.02. Authorization; .
The Transactions are within each Credit Party's corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder action.
Each of this Agreement and each other Credit Document has been duly executed and
delivered by each Credit party thereto and constitutes a legal, valid and
binding obligation of each such Credit Party, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors, rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 4.03. Governmental Approvals; No ConflictsSECTION 4.03.
Governmental . The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Company or of any of Subsidiary or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Company or
any Subsidiary or its assets, or give rise to a right thereunder to require any
payment to be made by the Company or any Subsidiary, and (d) will not result in
the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
SECTION 4.04. Financial Condition; No Material Adverse ChangeSECTION 4.04.
.inancial Condition; No Material Adverse Change
(a) The Company has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended February 29, 1996, reported on by KPMG Peat
Marwick L.L.P., independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended November 30, 1996,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since February 29, 1996, there has been no material adverse change in
the business, assets, operations, prospects or condition, financial or
otherwise, of the Company
and its Subsidiaries, taken as a whole.
.ECTION 4.05. PropertiesSECTION 4.05. Properties
(a) Each of the Company and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental MattersSECTION 4.06. Litigation
and Environmental Matters
(a) There are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority now pending against or, to the knowledge of any Credit
Party, threatened against or affecting the Company or any Subsidiary (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any Subsidiary (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 4.07. Compliance with Laws and AgreementsSECTION 4.07. Compliance
with . Each of the Company and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 4.08. Investment and Holding Company StatusSECTION 4.08.
Investment and . Neither the Company nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
. Each of the Company and its Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Company or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations of all under funded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of all such under funded Plans by more than
$10,000,000.
. The Company has disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which the Company or any Subsidiary is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
The reports, financial statements, certificates or other information furnished
by or on behalf of the Company or any Subsidiary to the Administrative Agent or
any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished), when
taken as a whole, do not contain any misstatement of material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Company represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
ARTICLE V
ConditionsARTICLE VConditions
. The obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Ropes & ▇▇▇▇, counsel for the Company and its Subsidiaries,
substantially in the form of Exhibit B, and covering such other matters relating
to the Company and its Subsidiaries, this Agreement or the Transactions as the
Required Lenders shall reasonably request. The Company hereby requests such
counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Company, the
authorization of the Transactions and any other legal matters relating to the
Company, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Company, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 5.02 and specifying the Leverage Ratio as of
said date.
(e) Each of the Administrative Agent and the Syndication Agent shall have
received all fees and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder. The Administrative Agent shall notify the Company and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
March 14, 1997 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
. The obligation of each Lender to make a Loan to the Company or any Subsidiary
Borrower, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Credit Parties set forth in
this Agreement and the other Credit Documents shall be true and correct on and
as of the date of such Loan is made or the date of issuance, amendment, renewal
or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to the making of
such Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each borrowing of a Loan by the Company or a Subsidiary Borrower and each
issuance, amendment, renewal or extension of a Letter of Credit shall be deemed
to constitute a representation and warranty by the Credit Parties on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE VI
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 6.01. Financial Statements and Other InformationSECTION 6.01.
Financial . The Company will furnish to the Administrative Agent (with
sufficient copies for each Lender), and the Administrative Agent shall promptly
furnish to each Lender:
(a) within 10 Business Days after the electronic filing of the same with
the SEC, but in no event later than 120 days after the end of each fiscal year
of the Company, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG Peat Marwick L.L.P. or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 10 Business Days after the electronic filing of the same with
the SEC, but in no event later than 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders, equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph
(a) or (b) above, a certificate of a Financial Officer of the Company W
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.07, 7.08 (including a calculation of
the amount of Interest Expense paid or payable in cash) and 7.09, (iii) setting
forth the Applicable Rates to be applied commencing on the fifth Business Day
following the date of receipt by the Administrative Agent of such certificate
and the related financial statements and (iv) stating whether any change in GAAP
or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 4.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under paragraph
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Company or any Subsidiary with the SEC, or any Governmental Authority succeeding
to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Company to its shareholders
generally, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
. The Company will furnish to the Administrative Agent prompt written notice of
the s following (and the Administrative Agent shall promptly furnish a copy of
such notice to each Lender):
...... (a) the occurrence of any Default;
.....(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
.....(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $10,000,000; and
.....(d) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of BusinessSECTION 6.03. Existence;
Conduct of . The Company will, and will cause each Subsidiary to, do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation, dissolution or sale
permitted under Section 7.03.
. The Company will, and will cause each Subsidiary to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; InsurancSECTION 6.05. Maintenance
of e. The Company will, and will cause each Subsidiary to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection RightsSECTION 6.06. Books and
. The Company will, and will cause each Subsidiary to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities in
accordance with GAAP. The Company will, and will cause each Subsidiary to,
permit representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice through the Administrative Agent and at reasonable
times, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, provided that, so long as no Default
shall have occurred and be continuing, not more than one such visit by
representatives of the Administrative Agent and/or one or more of the Lenders
must be permitted during any calendar year.
. The Company will, and will cause each Subsidiary to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
. The proceeds of the Loans will be used only for general corporate purposes of
the Company or any Subsidiary (including any acquisition of all or substantially
all of the capital stock of any Person, provided that such acquisition has been
approved by the board of directors of such Person). No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the regulations of the Board, including
Regulations G, U and X.
ARTICLE VII
Negative Covenants
ARTICLE VIINegative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Company covenants and agrees with the Lenders that:
. The Company will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
...... (a) Indebtedness created hereunder;
(b) Indebtedness of the Company to any Subsidiary and
of any Subsidiary to the Company or another Subsidiary (including Guarantees by
the Company of Indebtedness of any Subsidiary or by any Subsidiary of
Indebtedness of the Company or any other Subsidiary);
(c) Indebtedness of the Company or any Subsidiary as an account party in
respect of letters of credit issued in the ordinary course of business and not
supporting Indebtedness;
(d) Indebtedness of Subsidiaries to Persons other than the Company or
another Subsidiary in an aggregate principal amount not exceeding $45,000,000;
(e) Indebtedness of the Company that is subordinated by its terms to the
obligations of the Company to pay principal of and interest on the Loans and all
other amounts owing hereunder, and governed by documentation containing terms
not less favorable than those typically found in publicly issued subordinated
debt or otherwise in form and substance reasonably satisfactory to the Required
Lenders; and
(f) other Indebtedness of the Company in an aggregate principal amount not
exceeding $200,000,000; Provided that the aggregate principal amount of such
other Indebtedness secured by assets of the Company and/or its Subsidiaries
shall not exceed $45,000,000.
. The Company will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Lien on any Property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) Liens with respect to goods shipped and documents related thereto
created in connection with the issuance of trade letters of credit;
(c) any Lien on Margin Stock; and
(d) any Lien on any property or asset of the Company or any Subsidiary
securing Indebtedness permitted by Section 7.01(d) or Section 7.01(f).
.ECTION 7.03. Fundamental ChangesSECTION 7.03. Fundamental Changes
(a) The Company will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Company in a
transaction in which the Company is the surviving corporation, (ii) any
Subsidiary may merge into another Subsidiary, provided that, if only one such
Subsidiary is a Subsidiary Borrower, the Subsidiary Borrower shall be the
surviving corporation, (iii) any Subsidiary may merge into another Person if the
Person surviving the merger becomes or remains a Subsidiary (and, if such
Subsidiary was a Subsidiary Borrower immediately prior to such merger, becomes a
Subsidiary Borrower) and (iv) any Subsidiary (other than a Subsidiary Borrower)
may liquidate or dissolve; provided that any such merger involving a Person that
is not a wholly owned Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 7.04.
(b) The Company will not, and will not permit any Subsidiary to, sell,
transfer, lease or otherwise dispose of any part of its assets (including the
stock of any of its Subsidiaries), in each case whether now owned or hereafter
acquired, except that:
(i) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Company or to another Subsidiary;
(ii) the Company or any Subsidiary may sell, transfer, lease or otherwise
dispose of inventory or other assets in the ordinary course of business;
(iii) the Company or any Subsidiary may sell, transfer, lease or
otherwise dispose of any obsolete assets;
(iv) the Company or any Subsidiary may ▇▇▇▇, transfer or otherwise dispose
of any Margin Stock;
(v) in addition to the transactions permitted under the foregoing clauses,
the Company or any Subsidiary may sell, transfer, lease or otherwise
dispose of any assets for not less than fair market value if the value of
the assets sold, transferred, leased or disposed pursuant to such
transaction, when added to the value of all other assets theretofore sold,
transferred, leased or disposed pursuant to this clause (v), does not
exceed 25% of the Company's consolidated tangible assets (as set forth in
the most recent audited financial statement of the Company provided
pursuant to the Section 6.01(a)).
(c) The Company will not, and will not permit any Subsidiary to, engage to
any material extent in any business other than businesses of the type conducted
by the Company and its Subsidiaries on the date of execution of this Agreement
and businesses reasonably related thereto.
SECTION 7.04. Investments, Loans, Advances, Guarantees and Acquisitions;
Hedging Agreements.SECTION 7.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements.
(a) The Company will not, and will not permit any Subsidiary to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(i) Permitted Investments;
(ii) investments by the Company in the capital
stock of Subsidiaries;
(iii)loans or advances made by the Company to any Subsidiary and made by
any Subsidiary to the Company or any other Subsidiary;
(iv) Guarantees constituting Indebtedness permitted by Section 7.01;
(v) minority investments in the capital stock of any Person engaged in the
same or substantially similar lines of business to that engaged in by the
Company as of the date hereof not to exceed an aggregate amount of $80,000,000;
Provided that each such investment has been approved by the Board of Directors
of such Person;
(vi) purchases of publicly traded capital stock of any Person engaged in
the same or substantially similar lines of business to that engaged in by the
Company as of the date hereof, in an amount not to exceed St of the capital
stock of such Person, provided that (A) the aggregate consideration paid or
payable (including any noncash consideration) for such capital stock does not
exceed $15,000,000 and (B) the aggregate consideration paid or payable
(including any non-cash consideration) for capital stock of all Persons under
this clause (vi) does not exceed $60,000,000; and provided further that any such
purchase which leads to the acquisition of all or substantially all of the
capital stock of such Person shall be required to comply with the requirements
of clause (vii) below;
(vii)in addition to the Investments permitted under the foregoing clauses,
the Company and its Subsidiaries may acquire all or substantially all of the
capital stock of any Person (other than any Subsidiary) (each an "Acquired
Entity"), in a single transaction or a series of related transactions, so long
as:
(A) each Acquired Entity shall engage in the same or substantially similar
lines of business to that engaged in by the Company as of the date hereof;
(B) with respect to any such acquisition where. the consideration to be
paid or payable (including any non-cash consideration) will exceed
$50,000,000, the Company shall deliver to the Administrative Agent, no
later than five Business Days prior to the consummation of such
acquisition, a copy of the draft acquisition agreement (including
schedules and exhibits);
(C) immediately prior to such acquisition and after giving effect thereto,
no Default shall have occurred or be continuing; and
(D) after giving effect to such acquisition the Company shall be in
compliance with Sections 7.07, 7.08 and 7.09 (the determination of such
compliance to be calculated on a pro forma basis, as at the end of and for
the period of four fiscal quarters most recently ended prior to the date
of such acquisition for which financial statements of the Company and its
Subsidiaries are available, under the assumption that such acquisition
shall have been made or consummated, and any Indebtedness in connection
therewith shall have been incurred, at the beginning of the applicable
period, and under the assumption that interest for such period had been
equal to the actual weighted average interest rate in effect for the Loans
hereunder on the date of such acquisition), and on or prior to the date of
the consummation of such acquisition, the Company shall have delivered to
the Administrative Agent a certificate of a Financial Officer certifying
as to W compliance by the Company with the requirements of this clause (D)
(and providing the calculations thereof in reasonable detail, together
with sufficient back-up information as reasonably requested by the
Administrative Agent) and (y) the matters specified in clause (C) above.
(b) The Company will not, and will not permit any Subsidiary to, enter
into any Hedging Agreement, other than Hedging Agreements entered into to hedge
or mitigate risks, including anticipated transactions, to which the Company or
any Subsidiary is exposed in the conduct of its business or the management of
its liabilities, provided that in no event shall the Company or any Subsidiary
be permitted to enter into any Hedging Agreement for speculative purposes.
SECTION 7.05. Transactions with AffiliatesSECTION 7.05. Transactions with
. The Company will not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) at prices and on terms and
conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties and (b)
transactions between or among the Company and its Subsidiaries not involving any
other Affiliate, unless such transaction complies with the requirements of
clause (a) of this Section 7.05 as to such other Affiliate. . The Company will
not, and will not permit any Subsidiary to, directly or ts indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
(a) to pay dividends or other distributions with respect to any shares of its
capital stock, (b) to make or repay loans or advances to the Company or any
other Subsidiary or (c) to transfer any of its property or assets to the Company
or any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of any Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iii) the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to any Person, or
the property or assets of such Person, acquired by the Company or any Subsidiary
and existing at the time of such acquisition (or by any extension, renewal,
replacement, refinancing, modification or restatement of any such agreement, so
long as it does not impose any more restrictive restriction or condition), which
restrictions or conditions (A) are not applicable to any Person or the property
or assets of any Person other than the Person or the property or assets of such
Person so acquired and (B) were not put in place in anticipation of such
acquisition and (iv) the foregoing clause (c) shall not apply to restrictions
and conditions arising or agreed to in the ordinary course of business (A) that
restrict in a customary manner the subletting, assignment or transfer of any
property or asset that is a lease, license, conveyance or contract or similar
type of property or asset or (B) that exists by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any property
or assets of the Company or any Subsidiary not otherwise prohibited by this
Agreement and, in each case, that do not, individually or in the aggregate,
detract from the value of the property or assets of the Company or any
Subsidiary in any manner material to the Company an its Subsidiaries, taken as a
whole.
The Company will not permit the Leverage Ratio to exceed 2.50 to 1 at any
time.
. The Company will not permit the Interest Coverage Ratio to be less than or
equal to 3.00 to 1 as at the last day of each fiscal quarter of the Company.
. The Company will not permit Tangible Net Worth to be less than $500,000,000
at any time.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or the
Company shall fail to pay any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf of
any Credit Party in or in connection with this Agreement or any amendment or
modification hereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the Company or any Subsidiary Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 6.03 (with
respect to any Borrower's existence) or 6.08 or in Article VII;
(e) the Company shall fail to observe or perform any covenant, condition
or agreement contained in this Agreement (other than those specified in clauses
(a) through (d), inclusive, of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Company;
(f) the Company or any Subsidiary shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of Indebtedness of
the Company or any Subsidiary in an aggregate principal amount exceeding
$10,000,000 (other than under this Agreement), when and as the same shall become
due and payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that W results in any Indebtedness of
the Company or any Subsidiary in an aggregate principal amount exceeding
$10,000,000 (other than under this Agreement) becoming due prior to its
scheduled maturity or (ii) after giving effect to any applicable grace period,
enables or permits the holder or holders of any such Indebtedness or any trustee
or agent on its or their behalf to cause any such Indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking W liquidation, reorganization or other relief in
respect of the Company or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Material Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Company or any Material Subsidiary shall admit in writing that it
is unable to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount
in excess of $5,000,000 shall be rendered against the Company, any Subsidiary or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Company or any Subsidiary to enforce any such judgment;
(1) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or W of this Article), and at any time thereafter during
the continuance of such event, the Administrative Agent may, and at the request
of the Required Lenders shall, by notice to the Company, take either or both of
the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect to any Borrower described in clause (h) or W of this Article,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
ARTICLE IX
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. without limiting the generality of the
foregoing (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any Subsidiary that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders or in
the absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company and its Subsidiaries), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such subagent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, with a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall 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. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 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 Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Syndication Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Lender and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
The Syndication Agent, in its capacity as such, shall have no obligations,
duties or liabilities whatsoever under this Agreement.
ARTICLE X
MiscellaneousARTICLE XMiscellaneous
. Except in the case of notices and other communications expressly permitted to
be given by telephone, all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any of the Borrowers, to the Company at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to any Lender (including in its capacity as Issuing Bank), to it at
its address (or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
.ECTION 10.02. Waivers; AmendmentsSECTION 10.02. Waivers; Amendments
(a) No failure or delay by the Administrative Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Credit Parties therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Credit Parties and the Required Lenders or by the Credit Parties and
the Administrative Agent with the consent of the Required Lenders; provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) release the Guarantor from its obligations
hereunder, without the written consent of each Lender or (vi) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the Issuing
Bank, as the case may be.
SECTION 10.03. Expenses; Indemnity: Damage WaiverSECTION 10.03. Expenses;
Indemnity: Damage Waiver
(a) The Company shall pay W all reasonable out-of-pocket expenses incurred
by the Administrative Agent, the Syndication Agent and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) The Company shall indemnify the Administrative Agent, the Syndication
Agent, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an ("Indemnitee"), by payment
to the Administrative Agent for the account of such Lender or any of its Related
Persons, against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the fees, charges
and disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of W
the execution or delivery of-this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any
Subsidiary, or any Environmental Liability related in any way to the Company or
any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that the Company fails to pay any amount required to be
paid by it to the Issuing Bank, the Syndication Agent or the Administrative
Agent (for its own account) under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Syndication
Agent or the Issuing Bank, as the case may be, such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Syndication Agent or the Issuing Bank in its capacity
as such.
(d) To the extent permitted by applicable law, the Credit Parties shall
not assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written
demand therefor.
.ECTION 10.04. Successors and AssignsSECTION 10.04. Successors and Assigns
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that no Credit Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by any Credit Party
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that W except in the
case of an assignment to a Lender or an Affiliate of a Lender, each of the
Company, the Administrative Agent and the Issuing Bank must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Company and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $2,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; provided further that any consent of the
Company otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article VIII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph (b)
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 paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Bank 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 Company, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Company, the Administrative
Agent or the Issuing Bank, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.13 or 2.15 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.15 unless the Company
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 2.15(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
All covenants, agreements, representations and warranties made by the Credit
Parties herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 10.03 and Article IX shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration EffectivenessSECTION 10.06. .
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
. Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. . If an Event of Default
arising under clause (a) or (b) of Article VIII shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Credit Parties against any of and all the
obligations of the Credit Parties now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of ProcessSECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of process
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each Credit Party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against any Credit Party or its properties in the courts of any jurisdiction.
(c) Each Credit Party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates, directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Company. For the purposes of this Section, "Information" means all
information received from the Company relating to the Company or any Subsidiary
or their respective business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Company. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
. The Company may from time to time designate one or more Subsidiaries as
Subsidiary Borrowers hereunder by delivering to the Administrative Agent an
agreement, in form and substance satisfactory to the Administrative Agent,
pursuant to which such Subsidiary agrees to be a party to and bound by this
Agreement, and subject to the obligations of a "Subsidiary Borrower", a
"Borrower" and a "Credit Party" hereunder. Any Subsidiary may, upon notice by
the Company to the Administrative Agent, withdraw as a Subsidiary Borrower
hereunder if no Loans to such Subsidiary Borrower are outstanding hereunder or
if any such Loans are repaid contemporaneously with such withdrawal. Upon
receipt by the Administrative Agent of such notice, each Lender shall be
released from its obligations to make Loans to such Subsidiary and such
Subsidiary shall cease to be a "Subsidiary Borrower" hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CABLETRON SYSTEMS, INC.
by___________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
by__________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Syndication Agent by
by___________________________
Name:
Title:
THE BANK OF NEW YORK
by__________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
by_______________________
Name:
Title:
CITIBANK, N.A.
by_______________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
by________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/CR
CAYMAN ISLANDS BRANCH
by_______________________
Name:
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
by_______________________
Name:
Title:
FLEET BANK, NATIONAL ASSOCIATION
by________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
by________________________
Name:
Title:
THE SAKURA BANK, LIMITED
by_________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
by________________________
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
by______________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
by________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
by________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
by________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
by_______________________
Name:
Title:
MELLON BANK, N.A.
by_______________________
Name:
Title:
Schedule 2.01
COMMITMENTS
Lender Commitment
The Chase Manhattan Bank $17,500,000.00
The First National Bank of Chicago $17,500,000.00
The Bank of New York $15,000,000.00
Bank of Tokyo-Mitsubishi Trust Company $15,000,000.00
Citibank, N.A. $15,000,000.00
The Dai-Ichi Kangyo Bank, Ltd. $15,000,000.00
Deutsche Bank AG, New York and/or
Cayman Islands Branch $15,000,000.00
First Union National Bank
of North Carolina $15,000,000.00
Fleet Bank, National Association $15,000,000.00
NationsBank of Texas, N.A. $15,000,000.00
The Sakura Bank, Limited $15,000,000.00
State Street Bank and Trust Company $15,000,000.00
Wachovia Bank of Georgia, N.A. $15,000,000.00
Bank of America National Trust and
Savings Association $10,000,000.00
The Bank of Nova Scotia $10,000,000.00
Credit Lyonnais New York Branch $10,000,000.00
The First National Bank of Boston $10,000,000.00
Mellon Bank, N.A. $10,000,000.00
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of March 7, 1997 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement"), between Cabletron Systems, Inc., a Delaware corporation (the
"Company"), the Subsidiary Borrowers from time to time party thereto, the
lenders named therein, The Chase Manhattan Bank, as administrative agent for
such lenders, and The First National Bank of Chicago, as syndication agent.
Terms defined in the Credit Agreement are used herein as defined therein.
_____________________________ the "Assignor") and _________________ (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date as set forth in Schedule 1 hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to the credit facility
contained in the Credit Agreement as is set forth on Schedule 1 (the "Assigned
Facility"), in a principal amount and percentage as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any instrument or document
furnished pursuant thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
instrument or document furnished pursuant thereto, other than that it has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company, any Subsidiary or any other obligation or
the performance or observance by the Company or any Subsidiary or any other
obligor of any of their respective obligations under the Credit Agreement or any
instrument or document furnished pursuant hereto or thereto.
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.04 thereof, the financial statements delivered pursuant
to Section 6.01 thereof, if any, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (iii) agrees that it will, independently
and without reliance upon the Assignor, the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, any promissory note or any other instrument
or document furnished pursuant hereto or thereto; (iv) appoints and authorizes
the Administrative Agent to take such action as administrative agent on its
behalf and to exercise such powers and discretion under the Credit Agreement,
any promissory note or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (v) agrees
that it will be bound by the provisions of the Credit Agreement and will perform
in accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender including, if it
is organized under the laws of a jurisdiction outside the United States of
America, its obligation pursuant to Section 2.14(e) of the Credit Agreement to
deliver the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement, or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate reduced by an applicable tax treaty.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent pursuant to Section 10.04 of the Credit Agreement,
effective as of the Effective Date (which date shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent and shall
in no event be earlier than the date the information contained herein is
recorded in the Register pursuant to Section 10.04 of the Credit Agreement).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee which accrue subsequent to the Effective Date.
6. From and after the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and shall be
bound by the provisions thereof and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement except as provided in
Section 10.05 of the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the law of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Schedule I to
Assignment and Acceptance
relating to the Credit Agreement,
dated as of March 7, 1997,
between Cabletron Systems, Inc.,
the Subsidiary Borrowers party thereto,
the lenders named therein,
The Chase Manhattan Bank,
as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"),
and The First National Bank of Chicago,
as syndication agent
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Percentage
Amount Assigned Assigned
[ASSIGNEE] [ASSIGNOR]
By: BY:
Title: Title:
[Consented to and] Accepted:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
Title:
[Consented to:
CABLETRON SYSTEMS, INC.
By:
[Consented to:
[NAME OF ISSUING BANK]
By:
Title: I
EXHIBIT B
Form of Opinion
of
Ropes & ▇▇▇▇
_____________, 1997
The Chase Manhattan Bank, as Administrative Agent
Loan and Agency Services Group-
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The First National Bank of Chicago, as Syndication Agent
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Each of the Lenders listed on the signature pages to the Credit Agreement
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Section 5.01 of the
Credit Agreement dated as of March _, 1997 (the "Credit Agreement") among
Cabletron Systems, Inc., a Delaware corporation (the 'Company"), each of the
Lenders listed on the signature pages thereto, The Chase Manhattan Bank, as
Administrative Agent and The First National Bank of Chicago, as Syndication
Agent. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
We have acted as counsel to the Company in connection with the Credit
Agreement. We have participated in the preparation of the Credit Agreement and
have examined copies thereof executed by the Company. We have also examined such
Certificates, documents and records, and have made such examination of law, as
we have deemed necessary to enable us to render the opinions expressed below. In
addition, we have examined and relied upon representations and warranties
contained in the Credit Agreement and in certificates delivered to you in
connection therewith as to matters of fact (other than facts constituting
conclusions of law).
We call your attention to the fact that the Credit Agreement provides that
it is to be governed by the laws of the State of New York and we understand that
you are relying on the advice of your own counsel with respect to all matters
involving New York law. For purposes of rendering the opinions expressed in
paragraph 3 below, we have assumed that the Credit Agreement provides that it is
to be governed by and construed in accordance with the internal laws of The
Commonwealth of Massachusetts. The opinions expressed below are limited to
matters governed by the laws of The Commonwealth of Massachusetts, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate powers
adequate for the execution, delivery and performance of the Credit Agreement and
for carrying on the business now conducted by it as described in the Company's
Annual Report on Form 10-K for the year ended February 29, 1996.
2. The Credit Agreement, including the borrowings by the Company thereunder
and the incurrence by the Company of liability in respect of Letters of Credit
thereunder, has been duly authorized by all necessary corporate action on the
part of the Company.
3. [Each of) the Credit Agreement [and the Notes being delivered today
under the Credit Agreement] has been duly executed and delivered by the Company
and (subject to the qualifications stated in the penultimate paragraph hereof)
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
4. The execution and delivery of the Credit Agreement by the Company, and
the compliance by the Company with the terms of the Credit Agreement, will not
result in any violation of, or be in conflict with, any terms or provision of:
(a) its charter or bylaws or (b) any presently existing federal or Massachusetts
law, statute or governmental regulation.
5. Under existing provisions of law, no approval of or authorization or
other action by any federal or Massachusetts governmental authority is required
to be obtained by the Company in connection with the execution, delivery or
performance of the Credit Agreement.
6. Neither the Company nor any Subsidiary of the Company is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
7. To our knowledge, after having made inquiry of the Company but without
having investigated any governmental records or court dockets, there is no
governmental action or proceeding and no litigation pending against the Company
which places in question the validity or enforceability of, or seeks to enjoin
the performance of, the Credit Agreement.
Our opinion that each of the Credit Agreement [and the Notes being
delivered today under the Credit Agreement] is the legal, 'valid and binding
obligation of the Company, enforceable in accordance with its terms, is subject
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights and remedies of creditors, (ii) general principles of
equity, regardless of whether applied in, proceedings in equity or at law, and
(iii) the fact that the enforcement of the indemnity provisions contained in the
Credit Agreement may be limited by applicable federal or state securities laws.
We express no opinion as to (i) the effect of the laws of any jurisdiction in
which any Under is located (other than The Commonwealth of Massachusetts) that
limit the interest, fees or other charges such Lender may impose, (ii) Section
3.06 or the second sentence of Section 2.16(c) of the Credit Agreement, and
(iii) Section 10.09(c) of the Credit Agreement, insofar as such Section relates
to the subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to the
Credit Agreement.
The foregoing opinion is solely for your benefit, and for the benefit of such
other Lenders as may from time to time become parties to the Credit Agreement,
and all participants in or assignees of the Loans pursuant to Section 10.04 of
the Credit Agreement, and may not be relied on by any other Person.
Very truly yours,
Ropes & ▇▇▇▇