EXHIBIT 4
EXECUTION COPY
CREDIT AGREEMENT
Dated as of December 31, 2002
among
THE TIMKEN COMPANY,
as the Borrower,
BANK OF AMERICA, N.A. and KEYBANK NATIONAL ASSOCIATION,
as Co-Administrative Agents,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
as Syndication Agent,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK,
as Documentation Agent,
KEYBANK NATIONAL ASSOCIATION,
as Paying Agent and as Swing Line Lender,
KEYBANK NATIONAL ASSOCIATION
And the Other Letter of Credit Issuers Hereto,
as Appropriate L/C Issuers,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC and KEYBANK NATIONAL ASSOCIATION,
as
Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms ......................................................... 1
1.02 Other Interpretive Provisions..........................................25
1.03 Accounting Terms.......................................................25
1.04 Rounding...............................................................26
1.05 References to Agreements and Laws......................................26
1.06 Times of Day...........................................................26
1.07 Letter of Credit Amounts...............................................26
1.08 Currency Equivalents Generally.........................................26
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans..............................................................26
2.02 Borrowings, Conversions and Continuations of Loans.....................27
2.03 Letters of Credit......................................................28
2.04 Swing Line Loans.......................................................35
2.05 Prepayments............................................................38
2.06 Termination or Reduction of Commitments................................40
2.07 Repayment of Loans.....................................................41
2.08 Interest...............................................................41
2.09 Fees...................................................................42
2.10 Computation of Interest and Fees.......................................42
2.11 Evidence of Indebtedness...............................................42
2.12 Payments Generally.....................................................43
2.13 Sharing of Payments....................................................45
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes..................................................................46
3.02 Illegality.............................................................47
3.03 Inability to Determine Rates...........................................48
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans................................................48
3.05 Funding Losses.........................................................49
3.06 Matters Applicable to All Requests for Compensation....................49
3.07 Survival...............................................................49
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions to Documentation Closing Date...............................50
4.02 Conditions of Initial Credit Extensions................................51
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4.03 Conditions to all Credit Extensions....................................53
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws...............54
5.02 Authorization; No Contravention........................................54
5.03 Governmental Authorization; Other Consents.............................55
5.04 Binding Effect.........................................................55
5.05 Financial Statements; No Material Adverse Effect.......................55
5.06 Litigation.............................................................55
5.07 No Default.............................................................56
5.08 Ownership of Property; Liens...........................................56
5.09 Environmental Compliance...............................................56
5.10 Insurance..............................................................57
5.11 Taxes..................................................................57
5.12 ERISA Compliance..............................Error!Bookmark not defined.
5.13 Subsidiaries; Equity Interests.........................................57
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act............................................................58
5.15 Disclosure.............................................................58
5.16 Compliance with Laws...................................................58
5.17 Intellectual Property; Licenses, Etc...................................59
5.18 Solvency...............................................................59
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements...................................................59
6.02 Certificates; Other Information........................................60
6.03 Notices................................................................61
6.04 Payment o Obligations..................................................61
6.05 Preservation of Existence, Etc.........................................62
6.06 Maintenance of Properties..............................................62
6.07 Maintenance of Insurance...............................................62
6.08 Compliance with Laws...................................................62
6.09 Books and Records......................................................62
6.10 Inspection Rights......................................................62
6.11 Use of Proceeds........................................................63
6.12 Convenant to Guarantee Oblications.....................................63
6.13 Compliance with Environmental Laws.....................................63
6.14 Further Assurances.....................................................63
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens..................................................................64
7.02 Investments............................................................65
7.03 Indebtedness...........................................................67
7.04 Fundamental Changes....................................................69
7.05 Dispositions...........................................................70
7.06 Restricted Payments....................................................71
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7.07 Change in Nature of Business...........................................71
7.08 Transactions with Affiliates...........................................71
7.09 Burdensome Agreements..................................................72
7.10 Use of Proceeds........................................................72
7.11 Financial Convenants...................................................72
7.12 Amendments of Organization Documents...................................73
7.13 Prepayments, Etc., of Indebtedness.....................................73
ARTICLE VIII
EVENTS OF DEFAULT AND ▇▇▇▇▇▇▇▇
▇.01 Events of Default......................................................73
8.02 Remedies upon Event of Default.........................................75
8.03 Application of Funds...................................................76
ARTICLE IX
AGENTS
9.01 Appointment and Authorization of Agents................................76
9.02 Delegation of Duties...................................................77
9.03 Liability of Agents....................................................77
9.04 Reliance by Agents.....................................................77
9.05 Notice of Default......................................................78
9.06 Credit Decision; Disclosure of Information by Agents...................78
9.07 Indemnification of Agents..............................................79
9.08 Agents in Their Individual Capacities..................................79
9.09 Successor Agents.......................................................79
9.10 Co-Administrative Agents May File Proofs of Claim......................80
9.11 Guaranty Matters.......................................................81
9.12 Other Agents; Arrangers and Managers...................................81
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc........................................................81
10.02 Notices and Other Communications;Facsimile Copies......................82
10.03 No Waiver; Cumulative Remedies.........................................83
10.04 Attorney Costs, Expenses and Taxes.....................................84
10.05 Indemnification by the Borrower........................................84
10.06 Payments Set Aside.....................................................85
10.07 Successors and Assigns.................................................85
10.08 Confidentiality........................................................88
10.09 Setoff.................................................................89
10.10 Interest Rate Limitation...............................................89
10.11 Counterparts...........................................................90
10.12 Integration............................................................90
10.13 Survival of Representations and Warranties.............................90
10.14 Severability...........................................................90
10.15 Tax Forms..............................................................90
10.16 Replacement of Lenders.................................................92
10.17 Judgment...............................................................92
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10.18 Substitution of Currency...............................................92
10.19 Governing Law..........................................................93
10.20 Waiver of Right to Trial by Jury.......................................93
10.21 Binding Effect.........................................................93
SIGNATURES..................................................................S-1
v
SCHEDULES
I Guarantors
II Certain Timken Stockholders
III Maximum Impairment, Restructuring, Reorganization and Implementation
Charges
IV Material Subsidiaries
V Existing Letters of Credit and Appropriate L/C Issuers
2.01 Commitments and Pro Rata Shares
5.06 Disclosed Litigation
5.08(b)Existing Liens
5.09 Environmental Matters
5.12 Pension Plans
5.13 Subsidiaries and Other Equity Investments
5.15 Projected Financial Information
7.02(f)Existing Investments
7.03 Existing Indebtedness
7.08 Transactions with Affiliates
7.09 Burdensome Agreements
10.02 Paying Agent's Office, Certain Addresses for Notices
10.22 Post-Closing Restructuring
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Term Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G-1 Opinion Matters - Counsel to Loan Parties with respect to Loan
Documents
G-2 Opinion Matters - In-House Counsel to Loan Parties
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of December 31,
2002,among THE TIMKEN COMPANY, an Ohio corporation (the "Borrower"), BANK OF
AMERICA, N.A. and KEYBANK NATIONAL ASSOCIATION, as Co-Administrative Agents,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as
Syndication Agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as Documentation Agent, KEYBANK NATIONAL
ASSOCIATION, as Paying Agent, BANC OF AMERICA SECURITIES LLC and KEYBANK
NATIONAL ASSOCIATION, as Joint Lead Arrangers and Joint Book Managers, each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), KEYBANK NATIONAL ASSOCIATION, as an Appropriate L/C
Issuer and Swing Line Lender, and the other Letter of Credit issuers party
hereto, each as an Appropriate L/C Issuer.
PRELIMINARY STATEMENTS:
Pursuant to the Stock and Asset Purchase Agreement dated as of October
16, 2002 (as amended, supplemented or otherwise modified in accordance with its
terms,to the extent permitted in accordance with the Loan Documents (as
hereinafter defined), together with all schedules and exhibits thereto, the
"Purchase Agreement") among ▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company Limited, a corporation
organized under the laws of Bermuda ("IR"), on behalf of itself, ▇▇▇▇▇▇▇▇▇-▇▇▇▇
European Holding Company B.V. with respect to Industria Cuscinetti S.p.A. and
the other stock sellers set forth on Schedule A thereto (the "Stock Sellers")
and the asset sellers set forth on Schedule A thereto (the "Asset Sellers"; and
collectively with IR and the other Stock Sellers,the "Sellers"),and the Borrower
on behalf of itself and the other buyers set forth on Schedule F thereto
(collectively with the Borrower, the "Buyers"),the Buyers have agreed to acquire
(the "Acquisition") from the Sellers the Business (as hereinafter defined)
through the acquisition from Sellers of the Shares of the Sold Companies, the
Venture Interests and the Separate Assets (each as defined in the Purchase
Agreement).
The Borrower has requested that (a) in connection with the Acquisition,
the Lenders provide commitments to the Borrower of (i) $375,000,000 in the form
of a term loan and (ii) $500,000,000 in the form of a revolving credit loan to
finance,in part,the Acquisition,to pay transaction fees and expenses,and to
refinance certain Indebtedness of the Borrower and its Subsidiaries,and (b) from
time to time,the Lenders make loans to the Borrower and the Appropriate L/C
Issuers (as hereinafter defined) issue Letters of Credit (as hereinafter
defined)for the account of the Borrower or any Subsidiary pursuant to a
revolving credit facility for the Borrower and its Subsidiaries. The Lenders
have indicated their willingness to agree to so lend, and the Appropriate L/C
Issuers have indicated their willingness to so issue such Letters of Credit, in
each case, on the terms and subject to the conditions of this Agreement.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" has the meaning specified in the Preliminary Statements
to this Agreement.
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"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Paying Agent.
"Adjusted Foreign Subsidiaries/Joint Venture Basket" means at any time
for each fiscal year, an amount equal to the Foreign Subsidiaries/Joint Venture
Basket for such fiscal year, plus the Foreign Subsidiaries/Joint Venture Basket
in effect at the end of the immediately preceding fiscal year, it being
understood that no Foreign Subsidiaries/Joint Venture Basket may be carried over
for more than one fiscal year and that the Foreign Subsidiaries/Joint Venture
Basket for a fiscal year shall be fully used in such fiscal year before any
Foreign Subsidiaries/Joint Venture Basket for the immediately preceding fiscal
year is used.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agents" means, collectively, the Co-Administrative Agents,the
Syndication Agent, the Documentation Agent, the Paying Agent and the Lead
Arrangers.
"Agent-Related Persons" means the Co-Administrative Agents, the
Syndication Agent, the Documentation Agent, the Paying Agent and the Lead
Arrangers,together with their respective Affiliates,and the officers,directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate Credit Exposures" means, at any time, the sum of (i) the
unused portion of the Revolving Credit Commitment then in effect, (ii) the
unused portion of each Term Commitment then in effect and (iii) the Total
Outstandings at such time.
"Agreement" means this Credit Agreement.
"Annualized" means, for any period,
(a) with respect to Consolidated EBITDA,(i) if such period ends on or
after the first anniversary of the Documentation Closing Date, Consolidated
EBITDA for the prior four fiscal quarters,and (ii) if such period ends prior
to the first anniversary of the Documentation Closing Date, LTM EBITDA,
(b) with respect to Capital Expenditures,(i) if such period ends on or
after the first anniversary of the Documentation Closing Date, Capital
Expenditures made by or on behalf of the Borrower and its Subsidiaries
during the prior four fiscal quarters, (ii) if such period is for the first
full fiscal quarter after the Documentation Closing Date, Capital
Expenditures made by or on behalf of the Borrower and its Subsidiaries
during such fiscal quarter multiplied by four, (iii) if such period is for
the first two full fiscal quarters after the Documentation Closing Date,
Capital Expenditures made by or on behalf of the Borrower and its
Subsidiaries during such fiscal quarters multiplied by two, and (iv) if such
period is for the first three full fiscal quarters after the Documentation
3
Closing Date, Capital Expenditures made by or on behalf of the Borrower and
its Subsidiaries during such fiscal quarters multiplied by four and divided
by three, and
(c) with respect to Consolidated Interest Charges,(i) if such period
ends on or after the first anniversary of the Documentation Closing Date,
Consolidated Interest Charges for the prior four fiscal quarters, (ii) if
such period is for the first full fiscal quarter after the Documentation
Closing Date, Consolidated Interest Charges for such fiscal quarter
multiplied by four, (iii) if such period is for the first two full fiscal
quarters after the Documentation Closing Date, Consolidated Interest
Charges for such fiscal quarters multiplied by two, and (iv) if such period
is for the first three full fiscal quarters after the Documentation Closing
Date, Consolidated Interest Charges for such fiscal quarters multiplied by
four and divided by three.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating as set forth below:
Applicable Rate
Eurocurrency
Rate +
Pricing Debt Ratings Letter of
Level S&P/▇▇▇▇▇'▇ Commitment Fee Credit Base Rate +
1 BBB+/Baa1 or higher 0.150% 1.000% 0.000%
2 BBB/Baa2 0.200% 1.250% 0.250%
3 BBB-/Baa3 0.250% 1.500% 0.500%
4 BB+/Ba1 0.375% 1.750% 0.750%
5 BB/Ba2 or lower 0.500% 2.500% 1.500%
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(h).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change. If at any
time no Debt Rating shall then be in effect, then the Applicable Rate shall be
at Pricing Level 5 from and after such time and until such time as a Debt Rating
shall be in effect.
"Appropriate L/C Issuer" means, at any time, (a) with respect to each
Existing Letter of Credit, Bank One, NA, Wachovia Bank or The Northern Trust
Company, as applicable, in its capacity as issuer of such Existing Letter of
Credit, and (b) with respect to each other Letter of Credit, KeyBank, in its
capacity as issuer of such other Letter of Credit, or any successor issuer of
such other Letters of Credit hereunder.
"Appropriate Lender" means, at any time, (a) with respect to the Term
Facility or the Revolving Credit Facility, a Lender that has a Commitment with
respect to such Facility at such time, (b) with respect to the Letter of Credit
Sublimit, (i) the Appropriate L/C Issuers and (ii) if any Letters of Credit have
been issued, or have been deemed to have been issued, pursuant to Section
2.03(a), the Revolving Credit Lenders, and (c) with respect to the Swing Line
Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are
outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
"Approved Fund" has the meaning specified in Section 10.07(g).
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"Asset Sellers" has the meaning specified in the Preliminary Statements
to this Agreement.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2001, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.03(b)(iii).
"Availability Period" means the period from and including the Funding
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of each Appropriate L/C Issuer to make L/C Credit Extensions pursuant to Section
8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means a rate per annum equal to the greater of (a) the
Prime Rate and (b) one-half of one percent (0.50%) in excess of the Federal
Funds Effective Rate. Any change in the Base Rate shall be effective
immediately from and after such change in the Base Rate.
"Base Rate Loan" means a Loan denominated in Dollars that bears
interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Revolving Credit Borrowing, a Swing Line Borrowing
or a Term Borrowing, as the context may require.
"Business" has the meaning specified in the Purchase Agreement.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in,the state where the Paying Agent's Office is located and, if such
day relates to any Eurocurrency Rate Loan, means any such day on which dealings
are conducted by and between banks in the London interbank market and banks are
open for business in London and in the country of issue of the currency of such
5
Eurocurrency Rate Loan (or,in the case of a Loan denominated in Euro, on which
the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open).
"Buyers" has the meaning specified in the Preliminary Statements to
this Agreement.
"Capital Expenditures" means, with respect to any Person for any
period, any expenditure in respect of the purchase or other acquisition of any
fixed or capital asset (excluding normal replacements and maintenance which are
properly charged to current operations). For purposes of this definition, the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such purchase price
exceeds the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such insurance proceeds, as the
case may be.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means any of the following types of Investments,to
the extent owned by the Borrower or any of its Subsidiaries free and clear of
all Liens:
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than 360 days from the
date of acquisition thereof; provided that the full faith and credit of the
United States of America is pledged in support thereof;
(b) readily marketable obligations issued by the District of Columbia,
any state of the United States of America or any political subdivision
thereof (i) having maturities of not more than 360 days from the date of
acquisition thereof, (ii) rated at least A by S&P and at least A2 by
▇▇▇▇▇'▇, and (iii) in an amount not to exceed $20,000,000 per issuer or
$100,000,000 in the aggregate;
(c) time deposits or repurchase agreements with, or insured
certificates of deposit or bankers' acceptances of, any commercial bank that
(i) (A)is a Lender or (B) is organized under the laws of the United States
of America, any state thereof or the District of Columbia or is the
principal banking subsidiary of a bank holding company organized under the
laws of the United States of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System, (ii) issues (or
the parent of which issues) commercial paper rated as described in clause
(d) of this definition and (iii) has combined capital and surplus of at
least $1,000,000,000, in each case with maturities of not more than 180 days
from the date of acquisition thereof;
(d) commercial paper or master notes issued by any Person organized
under the laws of any state of the United States of America and rated at
least "Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or at least "A-1"
(or the then equivalent grade) by S&P, in each case with maturities of not
more than 90 days from the date of acquisition thereof;
(e) obligations issued by any Person organized under the laws of any
state of the United States of America (i) having maturities of not more than
365 days from the date of acquisition thereof and (ii) rated at least A by
S&P and at least A2 by ▇▇▇▇▇'▇;
(f) Investments, classified in accordance with GAAP as Current Assets
of the Borrower or any of its Subsidiaries, in money market investment
programs registered under the Investment Company Act of 1940 which are
administered by financial institutions that have the highest rating
obtainable from either ▇▇▇▇▇'▇ or S&P, and the portfolios of which are
6
limited solely to Investments of the character, quality and maturity
described in clauses (a),(b),(c),(d) and (e) of this definition; and
(g) with respect to Foreign Subsidiaries, the approximate foreign
equivalent of any of clauses (a) through (f) above.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Change of Control" means, an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person or its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator
of any such plan), other than those Persons listed on Schedule II and the
heirs, administrators or executors of any such Persons and any trust
established by or for the benefit of such Persons, becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have
"beneficial ownership" of all securities that such person or group has the
right to acquire (such right, an "option right"), whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 30% or more of the equity securities of the Borrower entitled
to vote for members of the board of directors or equivalent governing body
of such Person on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to
any option right); or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of
the board of directors), or
(c) any Person or two or more Persons acting in concert, other than
those Persons listed on Schedule II, shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower, or control over the equity
securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a fully-diluted
basis (and taking into account all such securities that such person or group
7
has the right to acquire pursuant to any option right) representing 30% or
more of the combined voting power of such securities.
"Co-Administrative Agent" means each of Bank of America and KeyBank in
its capacity as a co-administrative agent under any of the Loan Documents, or
any successor co-administrative agent.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means a Term Commitment or a Revolving Credit Commitment,
as the context may require.
"Committed Currencies" means Canadian dollars, pounds sterling,
Japanese yen, Euros and other freely transferable currencies satisfactory to the
Revolving Credit Lenders in their sole discretion.
"Committed Currency Sublimit" means an amount equal to $100,000,000.
The Committed Currency Sublimit is part of, and not in addition to, the
Revolving Credit Facility.
"Committed Loan Notice" means a notice of (a) a Term Loan Borrowing,
(b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the
other, or (d) a continuation of Eurocurrency Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
"Compensation Period"has the meaning specified in Section 2.12(c)(ii).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
before cumulative effect of accounting changes for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign income taxes for such period, (iii) the amount
of depreciation and amortization expense deducted in determining such
Consolidated Net Income, (iv) other non-recurring expenses of the Borrower and
its Subsidiaries reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period, (v) any losses realized upon the
Disposition of assets outside the ordinary course of business, and (vi) the
aggregate amount of impairment, restructuring, reorganization and implementation
charges for such period of the type disclosed in the Borrower's report on Form
10- Q for the fiscal quarter ended September 30, 2002 or otherwise incurred in
connection with the Acquisition in an amount incurred for all periods after the
date hereof not to exceed the amount set forth on Schedule III and minus (b) the
sum of (i) all non- recurring material non-cash items increasing Consolidated
Net Income for such period, (ii) any gains realized upon the Disposition of
assets outside the ordinary course of business, and (iii) payments (net of
expenses) received with respect to the United States - Continued Dumping and
Subsidy Offset Act of 2000.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) (i) Annualized Consolidated EBITDA for such period, less (ii) the
aggregate amount of all Annualized Capital Expenditures made by or on behalf of
the Borrower and its Subsidiaries during such period to (b) Annualized
Consolidated Interest Charges for such period.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
8
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) all Off- Balance Sheet Liabilities, (g) without duplication,
all Guarantees with respect to outstanding Indebtedness (other than Indebtedness
that is contingent in nature) of the types specified in clauses (a) through (f)
above of Persons other than the Borrower or any Subsidiary, and (h) all
Indebtedness of the types referred to in clauses (a) through (g) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly
made non-recourse to the Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
net of interest income, and (b) the portion of rent expense of the Borrower and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Annualized Consolidated EBITDA for such period.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period.
"Consolidated Net Worth" means, as of any date of determination, the
consolidated net worth of the Borrower and its Subsidiaries, determined as of
such date in accordance with GAAP; provided, however, that there shall be
excluded from consolidated net worth any adjustments made to consolidated net
worth as a result of the effects of FAS 87, provided that the cumulative amount
of such adjustments for periods on or after January 1, 2003 may not exceed
$150,000,000.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and
(b) an L/C Credit Extension.
"Current Assets" means, with respect to any Person, all assets of such
Person that, in accordance with GAAP, would be classified as current assets on
the balance sheet of a company conducting a business the same as or similar to
that of such Person, after deducting appropriate and adequate reserves therefrom
in each case in which a reserve is proper in accordance with GAAP.
9
"Debt Rating" means, as of any date of determination, the rating as
determined (x) by S&P of the Borrower's long term corporate credit or (y) by
▇▇▇▇▇'▇ of the Borrower's senior unsecured long term debt, in each of clause (x)
and (y) on a non- credit enhanced basis; provided that if (i) a Debt Rating is
issued by each of the foregoing rating agencies, then the lower of such Debt
Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest
and the Debt Rating for Pricing Level 5 being the lowest) and (ii) either S&P or
▇▇▇▇▇'▇ shall change the basis on which ratings are established by it, each
reference to the Debt Rating announced by S&P or ▇▇▇▇▇'▇ shall refer to the then
equivalent rating by S&P or ▇▇▇▇▇'▇, as the case may be.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Applicable Rate,
if any, applicable to Base Rate Loans plus (b) 2.0% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall
be an interest rate equal to the Applicable Rate otherwise applicable to such
Loan plus 2.0% per annum, in each case to the fullest extent permitted by
applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Paying Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or becomes the subject of a bankruptcy or insolvency
proceeding.
"Determination Date" has the meaning specified in Section 2.14(a).
"Disclosed Litigation" has the meaning specified in Section 5.06.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Documentation Agent" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its capacity as a
documentation agent under any of the Loan Documents, or any successor
documentation agent.
"Documentation Closing Date" has the meaning specified in Section 4.01.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
10
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into 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.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Documents" means the documents effecting the IR Equity Issuance
and the documents effecting the Public Equity Issuance.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.
"Equivalent" in Dollars of any Committed Currency on any date means the
equivalent in Dollars of such Committed Currency determined by using the quoted
spot rate at which Bank of America's principal office in London offers to
exchange Dollars for such Committed Currency in London prior to 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement) on
such date as is required pursuant to the terms of this Agreement, and the
"Equivalent" in any Committed Currency of Dollars means the equivalent in such
Committed Currency of Dollars determined by using the quoted spot rate at which
Bank of America's principal office in London offers to exchange such Committed
Currency for Dollars in London prior to 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
11
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"EURIBO Rate" means the rate appearing on Page 248 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 Paying Agent from time to time for purposes of providing
quotations of interest rates applicable to deposits in Euro by reference to the
Banking Federation of the European Union Settlement Rates for deposits in Euro)
at approximately 10:00 a.m., London time, two Business Days prior to the
commencement of the applicable Interest Period, as the rate for deposits in Euro
with a maturity comparable to such Interest Period or, if for any reason such
rate is not available, the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Euros are offered by the
principal office of Bank of America in London to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to the Paying
Agent's (in its capacity as a Lender) Eurocurrency Rate Loan comprising part of
such Revolving Credit Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period (subject, however, to the
provisions of Section 3.03).
"Euro" means the lawful currency of the European Union as constituted
by the Treaty of Rome which established the European Community, as such treaty
may be amended from time to time and as referred to in the EMU legislation.
"Eurocurrency Rate" means (a) for any Interest Period with respect to
any Eurocurrency Rate Loan denominated in Dollars or any Committed Currency
other than Euro:
(i) the rate per annum equal to the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for deposits in
Dollars or the applicable Committed Currency (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(ii) if the rate referenced in the preceding clause (i) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Paying Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
or the applicable Committed Currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(iii) if the rates referenced in the preceding clauses (i) and (ii) are
not available, the rate per annum determined by the Paying Agent as the rate
of interest at which deposits in Dollars or the applicable Committed
Currency for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurocurrency Rate Loan being made,
12
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to major
banks in the London interbank Eurocurrency market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period; and
(b) for any Interest Period with respect to any Eurocurrency Rate Loan
denominated in Euros, the EURIBO Rate
"Eurocurrency Rate Loan" means a Loan denominated in Dollars or a
Committed Currency that bears interest at a rate based on the Eurocurrency Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Credit Agreement" means that certain Credit Agreement dated
as of July 10, 1998, as amended, among the Borrower, various financial
institutions, as Banks, and KeyBank, as Agent.
"Existing Letter of Credit" means each letter of credit listed on
Schedule V, issued by the Appropriate L/C Issuer identified thereon with respect
to such letter of credit, and each letter of credit extending or replacing such
letter of credit if such extending or replacement letter of credit is with the
same Appropriate L/C Issuer and is in a principal amount not in excess of the
principal amount of the extended or replaced letter of credit; provided,
however, that no letter of credit shall be or become an Existing Letter of
Credit if on or prior to the Funding Date the Appropriate L/C Issuer with
respect to such letter of credit shall have notified the Paying Agent and the
Borrower that such Appropriate L/C Issuer has elected to not have such letter of
credit be or become an Existing Letter of Credit.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business, in connection
with proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost earnings)
and condemnation awards (and payments in lieu thereof); provided, however, that
an Extraordinary Receipt shall not include cash receipts received from proceeds
of insurance or condemnation awards (or payments in lieu thereof) to the extent
that such proceeds or awards (a) in respect of loss or damage to equipment,
fixed assets or real property are applied to replace or repair the equipment,
fixed assets or real property in respect of which such proceeds were received in
accordance with the terms of Section 2.05(b)(i), or (b) are received by any
Person in respect of any third party claim against such Person and applied to
pay (or to reimburse such Person for its prior payment of) such claim and the
costs and expenses of such Person with respect thereto.
"Facility" means the Term Facility, the Revolving Credit Facility, the
Swing Line Sublimit or the Letter of Credit Sublimit, as the context may
require.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest one one-hundredth of one percent (1/100 of 1%)) announced
by the Federal Reserve Bank of New York (or any successor) on such day as being
the weighted average of the rates on overnight federal funds transactions
arranged by federal funds brokers on the previous trading day, as computed and
announced by such Federal Reserve Bank (or any successor) in substantially the
same manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the "Federal Funds Effective Rate" as of the Funding
Date.
"Fee Letter" means the letter agreement, dated October 15, 2002, among
the Borrower, Bank of America, BAS, KeyBank, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
13
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Foreign Subsidiaries/Joint Venture Basket" means at any time for each
fiscal year an amount equal to (a) $150,000,000, plus (b) the aggregate amount
of dividends and other distributions made in cash during such fiscal year by any
Foreign Subsidiary or joint venture with respect to any capital stock or other
Equity Interest of any Loan Party, plus (c) the aggregate amount of payments or
prepayments made in cash during such fiscal year by any Foreign Subsidiary or
joint venture to any Loan Party with respect to any intercompany Indebtedness
owed by such Foreign Subsidiary or joint venture to such Loan Party, plus (d)
the aggregate amount of payments or prepayments made in cash during such fiscal
year by any Foreign Subsidiary to any Person (other than the Borrower or any
Subsidiary) with respect to any Indebtedness owed by such Foreign Subsidiary to
such Person, minus (e) the aggregate amount of Investments made by any Loan
Party in any Foreign Subsidiary or joint venture during such fiscal year
pursuant to Section 7.02(j) or 7.02(k), minus (f) the aggregate amount of
Indebtedness incurred by any Foreign Subsidiary in such fiscal year pursuant to
Section 7.03(d)(A)
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" has the meaning specified in Section 10.07(g).
"Funding Date" means the first date on which all of the conditions
precedent in Sections 4.02 and 4.03 are satisfied or waived in accordance with
Sections 4.02 and 4.03.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" has the meaning specified in Section 10.07(h).
"Guarantors" means, collectively, the Subsidiaries of the Borrower
listed on Schedule I and each other Subsidiary of the Borrower that shall be
required to execute and deliver a guaranty or guaranty supplement pursuant to
Section 6.12.
"Guaranty" means, collectively, the Guaranty made by the Guarantors in
favor of the Paying Agent on behalf of the Lenders, substantially in the form of
Exhibit F, together with each other guaranty and guaranty supplement delivered
pursuant to Section 6.12.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing any Indebtedness or other obligation
payable or performable by another Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of such Person,
direct or indirect, (i) to purchase or pay (or advance or supply funds for the
14
purchase or payment of) such Indebtedness or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"High Grade Notes" means unsecured notes of the Borrower due not
earlier than one year after the Maturity Date for the Revolving Credit Facility;
provided that, unless the Lead Arrangers otherwise consent in writing, (a) no
Person (other than a Loan Party) shall guaranty any such notes, and any such
guaranties shall be pari passu with or subordinate to the Guaranty, and (b) no
document relating to such notes shall contain any provision requiring principal
payments or the application of a sinking fund (or comparable provision) prior to
the scheduled Maturity Date for the Revolving Credit Facility, other than any
customary provision in any such documents that would require payment or
prepayment upon the occurrence of a change of control of the Borrower or upon
the Disposition of assets of the Borrower or any Loan Party (but solely to the
extent that the Net Cash Proceeds from any such Disposition are not required to
be used to prepay Loans or Cash Collateralize Letters of Credit).
"High Grade Notes Documents" means the High Grade Notes and all other
agreements, instruments and other documents pursuant to which the High Grade
Notes have been or will be issued or otherwise setting forth the terms of the
High Grade Notes, in each case as such agreement, instrument or other document
may be amended, supplemented or otherwise modified from time to time.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
"ICC" has the meaning specified in Section 2.03(h).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
15
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business on customary terms);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien
on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse;
(f) capital leases, Off-Balance Sheet Liabilities and Synthetic Lease
Obligations;
(g) all obligations of such Person to mandatorily purchase, redeem,
retire, defease or otherwise make any payment, in each case in cash, in
respect of any Equity Interests in such Person or any other Person or any
warrants, rights or options to acquire such Equity Interests, valued, in
the case of redeemable preferred interests, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Information" has the meaning specified in Section 10.08.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower in its Committed Loan
Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
16
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.17.
"IR" has the meaning specified in the Preliminary Statements to this
Agreement.
"IR Equity Issuance" has the meaning specified in Section 4.02(g).
"IRS" means the United States Internal Revenue Service.
"KeyBank" means KeyBank National Association and its successors.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof.
"L/C Advance" means, with respect to each Revolving Credit Lender, such
Lender's funding of its participation in any L/C Borrowing in accordance with
its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance (or deemed issuance) thereof or extension of the expiry date thereof,
or the renewal or increase of the amount thereof.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lead Arranger" means each of BAS and KeyBank in its capacity as a
joint lead arranger and joint book manager under any of the Loan Documents, or
any successor joint lead arranger and joint book manager.
17
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes each Appropriate L/C Issuer and the Swing
Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Paying Agent.
"Letter of Credit" means any letter of credit issued hereunder, or
deemed to have been issued hereunder, including, without limitation, all
Existing Letters of Credit. A Letter of Credit may be a commercial letter of
credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the Appropriate L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $150,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Revolving
Credit Facility.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Term Loan, a Revolving Credit Loan or a Swing Line
Loan.
"Loan Documents" means, collectively, (a) for purposes of this
Agreement and the Notes and any amendment, supplement or other modification
hereof or thereof and for all other purposes other than for purposes of the
Guaranty, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Fee
Letter and (v) each Letter of Credit Application, and (b) for purposes of the
Guaranty, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Fee
Letter, (v) each Swap Contract between a Loan Party and a Lender, and (vi) each
Letter of Credit Application.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"LTM EBITDA" has the meaning specified in Section 4.02(m).
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
rights and remedies of any Agent or any Lender under any Loan Document, or of
the ability of any Loan Party to perform its obligations under any Loan Document
to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Material Subsidiary" means each Subsidiary now existing or hereafter
acquired or formed, and each successor thereto, which, after giving pro forma
effect to such acquisition or formation, accounts for more than 5% of (i) the
Consolidated gross revenues of the Borrower and its Subsidiaries, (ii)
18
Consolidated EBITDA, or (iii) the Consolidated assets of the Borrower and its
Subsidiaries, in each case, as of the last day of the most recently completed
fiscal quarter of the Borrower with respect to which, pursuant to clauses (a) or
(b) of Section 6.01, financial statements have been, or are required to have
been, delivered by the Borrower, and in any event includes all of the
Subsidiaries listed on Schedule IV.
"Maturity Date" means (a) with respect to the Term Facility, the
earlier of (i) the first anniversary of the Funding Date and (ii) the date of
termination in whole of the Term Commitments pursuant to Section 2.06 or
8.02(b), and (b) with respect to the Revolving Credit Facility, the earlier of
(i) the fifth anniversary of the Funding Date and (ii) the date of termination
in whole of the Revolving Credit Commitments, the Letter of Credit Sublimit, and
the Swing Line Sublimit pursuant to Section 2.06 or 8.02(b).
"Maximum Rate" has the meaning specified in Section 10.10.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and its successors.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank and its successors.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means:
(a) with respect to the sale of any asset by any Loan Party or any of
its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such sale (including any cash or
Cash Equivalents received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness
that is secured by such asset and that is required to be repaid in
connection with the sale thereof (other than Indebtedness under the Loan
Documents), (B) out-of-pocket expenses, brokerage commissions and other
direct fees and expenses (including legal expenses and the expenses of any
financial advisor) incurred by such Loan Party or such Subsidiary in
connection with such sale and (C) income, franchise, transfer or other taxes
paid in connection with the relevant asset sale as a result of the sale or
any gain recognized in connection therewith; and
(b) with respect to the incurrence or issuance of any Indebtedness by
the Borrower or any of its Subsidiaries, the excess of (i) the sum of the
cash and Cash Equivalents received in connection with such incurrence or
issuance over (ii) the underwriting discounts and commissions, and other
out-of-pocket expenses, incurred by the Borrower in connection with such
incurrence or issuance.
"Nonrenewal Notice Date" has the meaning specified in Section
2.03(b)(iii).
"Note" means a Term Note or a Revolving Credit Note, as the context may
require.
19
"NPL" means the National Priorities List under CERCLA.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party of any proceeding under any Debtor Relief Laws naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding. Without limiting the generality of the
foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any of the
foregoing that any Lender, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party.
"Off-Balance Sheet Liabilities" means, with respect to any Person as of
any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
(i) the unrecovered investment of purchasers or transferees of assets so
transferred and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such type and
that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors
of the assets so transferred nor (y) impair the characterization of the
transaction as a true sale under applicable Laws (including Debtor Relief Laws);
(b) the monetary obligations under any sale and leaseback transaction which does
not create a liability on the consolidated balance sheet of such Person and its
Subsidiaries; or (c) any other monetary obligation arising with respect to any
other transaction which is characterized as indebtedness for tax purposes but
not for accounting purposes in accordance with GAAP.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" means (i) with respect to Term Loans, Revolving
Credit Loans and Swing Line Loans on any date, the aggregate outstanding
principal amount thereof (based on the Equivalent in Dollars at such time) after
giving effect to any borrowings and prepayments or repayments of Term Loans,
Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on
such date; and (ii) with respect to any L/C Obligations on any date, the amount
of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
20
"Participant" has the meaning specified in Section 10.07(d).
"Paying Agent" means KeyBank in its capacity as a paying agent under
any of the Loan Documents, or any successor paying agent.
"Paying Agent's Office" means the Paying Agent's address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or
account as the Paying Agent may from time to time notify the Borrower and the
Lenders.
"Payment Office" means, for any Committed Currency, such office of
KeyBank as shall be from time to time selected by the Paying Agent and notified
by the Paying Agent to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Primary Currency" has the meaning specified in Section 10.17(c).
"Prime Rate" means the interest rate established from time to time by
the Paying Agent as the Paying Agent's prime rate, whether or not such rate is
publicly announced. The Prime Rate may not be the lowest interest rate charged
by the Paying Agent for commercial or other extensions of credit. Each change
in the Prime Rate shall be effective immediately from and after such change.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment(s) of such Lender under
the applicable Facility or Facilities at such time and the denominator of which
is the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time; provided that if the commitment of each Lender to make
Loans and the obligation of each Appropriate L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, then the Pro Rata
Share of each Lender shall be determined based on the Pro Rata Share of such
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof. The initial Pro Rata
Share of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.
"Public Equity Issuance" has the meaning specified in Section 4.02(g).
21
"Purchase Agreement" has the meaning specified in the Preliminary
Statements to this Agreement.
"Receivables Facility" has the meaning set forth in Section 7.05(g).
"Receivables Subsidiary" has the meaning set forth in Section 6.12.
"Reduction Amount" has the meaning set forth in Section 2.05(b)(vi).
"Register" has the meaning set forth in Section 10.07(c).
"Related Documents" means the Purchase Agreement and the other
documents effecting the Acquisition.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Term Loans or Revolving Credit Loans, a Committed
Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the sum of the (a) Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition), (b) aggregate unused Term Commitments and (c)
aggregate unused Revolving Credit Commitments; provided that the unused Term
Commitment, unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, vice president, corporate controller, treasurer, or
assistant treasurer of a Loan Party and, with respect to certificates to be
delivered pursuant to Sections 4.01 and 4.02, notices to be delivered pursuant
to Section 6.03 and the requirements of Section 8.01, the general counsel or the
secretary of the Borrower. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to the Borrower's
stockholders, partners or members (or the equivalent Persons thereof).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of the
Revolving Credit Lenders pursuant to Section 2.01(b).
22
"Revolving Credit Borrowing Minimum" means, in respect of Revolving
Credit Loans denominated in Dollars, $5,000,000, and in respect of any Revolving
Credit Loans denominated in any Committed Currency, the Equivalent of
$5,000,000.
"Revolving Credit Borrowing Multiple" means, in respect of Revolving
Credit Loans denominated in Dollars, $1,000,000, and in respect of Revolving
Credit Loans denominated in any Committed Currency, the Equivalent of
$1,000,000.
"Revolving Credit Commitment" means, as to each Revolving Credit
Lender, its obligation to (a) make Revolving Credit Loans to the Borrower
pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal
Dollar amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 2.01 under the caption "Revolving Credit
Commitment" or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such Dollar amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means, at any time, any Lender that has a
Revolving Credit Commitment at such time.
"Revolving Credit Loan" has the meaning specified in Section 2.01(b).
"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit C-2 hereto, evidencing the aggregate indebtedness of the Borrower to
such Revolving Credit Lender resulting from the Revolving Credit Loans made by
such Revolving Credit Lender.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Sellers" has the meaning specified in the Preliminary Statements to
this Agreement.
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Solvent" and "Solvency" mean, with respect to any Person, and its
Subsidiaries on a consolidated basis, on any date of determination, that on such
date (a) the fair value of the property of such Person, and its Subsidiaries on
a consolidated basis, is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, and its
Subsidiaries on a consolidated basis, (b) the present fair salable value of the
assets of such Person, and its Subsidiaries on a consolidated basis, is not less
than the amount that will be required to pay the probable liability of such
Person, and its Subsidiaries on a consolidated basis, on its debts as they
become absolute and matured, (c) such Person, and its Subsidiaries on a
consolidated basis, does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person, and its Subsidiaries on a
consolidated basis, is not engaged in business or a transaction, and is not
23
about to engage in business or a transaction, for which the property of such
Person, and its Subsidiaries on a consolidated basis, would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 10.07(h).
"Stock Sellers" has the meaning specified in the Preliminary Statements
to this Agreement.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid- market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means KeyBank in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
24
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$15,000,000 and (b) the Revolving Credit Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Revolving Credit Facility.
"Syndication Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its capacity as syndication
agent under any of the Loan Documents, or any successor syndication agent.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off- balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning specified in Section 3.01(a).
"Term Borrowing" means a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the
same Interest Period made by each of the Term Lenders pursuant to Section
2.01(a).
"Term Commitment" means, as to each Term Lender, its obligation to make
Term Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.01 under the caption "Term Commitment" or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Term Facility" means, at any time, the aggregate Term Loans of all
Lenders at such time.
"Term Lender" means, at any time, any Lender that has a Term Commitment
at such time.
"Term Loan" means an advance made by any Lender under the Term
Facility.
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit C-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Term Lender
resulting from the Term Loans made by such Term Lender.
"Threshold Amount" means $35,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Transaction" means, collectively, (a) the consummation of the
Acquisition, (b) to the extent issued, the issuance and sale of the High Grade
Notes, (c) the IR Equity Issuance, (d) the Public Equity Issuance, (e) the
entering into by the Loan Parties and their applicable Subsidiaries of the Loan
25
Documents, the High Grade Notes Documents, the Equity Documents and the Related
Documents to which they are or are intended to be a party, (f) the refinancing
of certain outstanding Indebtedness of the Borrower and its Subsidiaries and the
termination of all commitments thereunder, and (g) the payment of the fees and
expenses incurred in connection with the consummation of the foregoing.
"Type" means, with respect to a Loan, its character as a Base Rate Loan
or a Eurocurrency Rate Loan.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
1.02 Other Interpretive Provisions. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic
form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through"
means "to and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Co-Administrative
Agents, the Lenders and the Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Lenders); provided that,
26
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Co-Administrative Agents and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit at such time
after giving effect to all increases thereof contemplated by such Letter of
Credit or the Letter of Credit Application therefor, whether or not such maximum
face amount is in effect at such time.
1.08 Currency Equivalents Generally. Any amount specified in this
Agreement (other than in Articles II, IX and X) or any of the other Loan
Documents to be in Dollars shall also include the equivalent of such amount in
any currency other than Dollars, such equivalent amount to be determined at the
rate of exchange quoted by KeyBank in Cleveland, Ohio at the close of business
on the Business Day immediately preceding any date of determination thereof, to
prime banks in New York, New York for the spot purchase in the New York foreign
exchange market of such amount in Dollars with such other currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans. (a) The Term Borrowings. Subject to the terms and
conditions set forth herein, each Term Lender severally agrees to make a single
Term Loan in an amount equal to its Pro Rata Share of the Term Facility to the
Borrower on the Funding Date. The Term Borrowing shall consist of Term Loans
made simultaneously by the Term Lenders in accordance with their respective Pro
Rata Share of the Term Facility. Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans
or Eurocurrency Rate Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender severally agrees to
make loans (each such loan, a "Revolving Credit Loan") to the Borrower from time
to time, on any Business Day during the Availability Period, in an aggregate
27
amount (based in respect of any Revolving Credit Loans to be denominated in a
Committed Currency by reference to the Equivalent thereof in Dollars determined
on the date of delivery of the applicable Committed Loan Notice) not to exceed
at any time outstanding the amount of such Lender's Revolving Credit Commitment;
provided, however, that after giving effect to any Revolving Credit Borrowing,
(i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of all Loans denominated in a Committed Currency
shall not exceed the Committed Currency Sublimit, and (iii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Revolving Credit Commitment. Within the limits
of each Lender's Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay
under Section 2.05, and reborrow under this Section 2.01(b). Revolving Credit
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Term Borrowing, each Revolving Credit Borrowing, each
conversion of Term Loans or Revolving Credit Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the
Borrower's irrevocable notice to the Paying Agent, which may be given by
telephone. Each such notice must be received by the Paying Agent not later than
(i) 11:00 a.m. three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurocurrency Rate Loans denominated in
Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars
to Base Rate Loans denominated in Dollars, (ii) 4:00 p.m. three Business Days
prior to the requested date of any Revolving Credit Borrowing consisting of
Eurocurrency Rate Loans denominated in any Committed Currency, and (iii) 11:00
a.m. on the requested date of any Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Paying Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
shall be in a principal amount of not less than the Revolving Credit Borrowing
Minimum or the Revolving Credit Borrowing Multiple in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of not less than the Revolving
Credit Borrowing Minimum or the Revolving Credit Borrowing Multiple in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Term Loan Borrowing, a
Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Term Loans or Revolving Credit Loans are to be converted, (v) if
such Borrowing is a Revolving Credit Borrowing, the currency of such Borrowing,
which shall be Dollars or a Committed Currency and (vi) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation, then the
applicable Term Loans or Revolving Credit Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Paying Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
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applicable Term Loans or Revolving Credit Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Paying Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans
described in Section 2.02(a). In the case of a Term Loan Borrowing or a
Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its
Loan available to the Paying Agent in immediately available funds at the Paying
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice, in the case of a Revolving Credit Borrowing
consisting of Loans denominated in Dollars, and before 5:00 p.m. on the date of
such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Loans denominated in any Committed Currency.
Upon satisfaction of the applicable conditions set forth in Section 4.03 (and,
if such Borrowing is the initial Credit Extension, Section 4.02), the Paying
Agent shall make all funds so received available to the Borrower in like funds
as received by the Paying Agent either by (i) crediting the account of the
Borrower on the books of KeyBank with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to
the Paying Agent by the Borrower; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by the Borrower,
there are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of
such Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, second, to the payment in full of any such Swing Line Loans, and
third, to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans without the
consent of the Required Lenders.
(d) The Paying Agent shall promptly notify the Borrower and the Lenders
of the interest rate applicable to any Interest Period for Eurocurrency Rate
Loans upon determination of such interest rate. The determination of the
Eurocurrency Rate by the Paying Agent shall be conclusive in the absence of
manifest error. At any time that Base Rate Loans are outstanding, the Paying
Agent shall notify the Borrower and the Lenders of any change in KeyBank's prime
rate used in determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Term Borrowings, all Revolving Credit
Borrowings, all conversions of Term Loans or Revolving Credit Loans from one
Type to the other, and all continuations of Term Loans or Revolving Credit
Loans as the same Type, there shall not be more than ten Interest Periods in
effect.
(f) The failure of any Lender to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) On the Funding Date, each Existing Letter of Credit shall be deemed
to have been issued hereunder by the Appropriate L/C Issuer with respect to
such Existing Letter of Credit. Subject to the terms and conditions set
forth herein, (A) each Appropriate L/C Issuer agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Funding Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for
the account of the Borrower or any Subsidiary in Dollars or any Committed
29
Currency, and to amend or renew Letters of Credit previously issued by it,
in accordance with Section 2.03(b), and (2) to honor drafts under the
Letters of Credit; and (B) the Revolving Credit Lenders severally agree to
participate in Letters of Credit issued (or deemed to have been issued) for
the account of the Borrower; provided that no Appropriate L/C Issuer shall
make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit if as of
the date of such L/C Credit Extension, (x) the Total Outstandings would
exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of
the Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed such
Lender's Revolving Credit Commitment, or (z)the Outstanding Amount of the
L/C Obligations would exceed the Letter of Credit Sublimit. Within the
foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.
(ii) No Appropriate L/C Issuer shall be under any obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such
Appropriate L/C Issuer from issuing such Letter of Credit, or any Law
applicable to such Appropriate L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Appropriate L/C Issuer shall
prohibit, or request that such Appropriate L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon such Appropriate L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
33
requirement (for which such Appropriate L/C Issuer is not otherwise
compensated hereunder) not in effect on the Documentation Closing Date,
or shall impose upon such Appropriate L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Documentation Closing
Date and which such Appropriate L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material
to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur m ore than twelve months after
the date of issuance or last renewal, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders have
approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of such Appropriate L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than
$100,000, in the case of a commercial Letter of Credit, or $500,000, in
the case of a standby Letter of Credit, or is to be denominated in a
currency other than Dollars or a Committed Currency.
(iii) No Appropriate L/C Issuer shall be under any obligation to amend
any Letter of Credit if (A) such Appropriate L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.
30
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the Appropriate L/C
Issuer (with a copy to the Paying Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application must be received by the
Appropriate L/C Issuer and the Paying Agent not later than 11:00 a.m. at
least two Business Days (or such later date and time as such Appropriate
L/C Issuer may agree in a particular instance in its sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be.
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the Appropriate L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; (G)
whether such Letter of Credit is to be denominated in Dollars or a Committed
Currency and in the absence of such specification shall be deemed to be a
request for a Letter of Credit denominated in Dollars; and (H) such other
matters as such Appropriate L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the
Appropriate L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as such
Appropriate L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
Appropriate L/C Issuer will confirm with the Paying Agent (by telephone or
in writing) that the Paying Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, such Appropriate L/C
Issuer will provide the Paying Agent with a copy thereof. Upon receipt by
such Appropriate L/C Issuer of confirmation from the Paying Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, such Appropriate
L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or enter into the applicable amendment, as the case
may be,in each case in accordance with such Appropriate L/C Issuer's usual
and customary business practices. Immediately upon the issuance (or deemed
(issuance) of each Letter of Credit, each Revolving Credit Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Appropriate L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the Appropriate L/C Issuer shall agree to issue a Letter of
Credit that has automatic renewal provisions (each, an "Auto-Renewal Letter
of Credit"); provided that any such Auto-Renewal Letter of Credit must
permit such Appropriate L/C Issuer to prevent any such renewal at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Nonrenewal Notice Date") in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by such Appropriate L/C Issuer, the Borrower shall not be
required to make a specific request to such Appropriate L/C Issuer for any
such renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) such
Appropriate L/C Issuer to permit the renewal of such Letter of Credit at
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any time to an expiry date not later than the Letter of Credit Expiration
Date; provided, however, that such Appropriate L/C Issuer shall not permit
any such renewal if (A) such Appropriate L/C Issuer has determined that it
would have no obligation at such time to issue such Letter of Credit in its
renewed form under the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is two Business
Days before the Nonrenewal Notice Date from the Paying Agent, any Revolving
Credit Lender or the Borrower that one or more of the applicable conditions
specified in Section 4.03 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the Appropriate L/C Issuer will also deliver
to the Borrower and the Paying Agent a true and complete copy of such Letter
of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the Appropriate L/C Issuer
shall notify the Borrower and the Paying Agent thereof. Not later than
12:00 noon on the date of any payment by the Appropriate L/C Issuer under a
Letter of Credit (each such date, an "Honor Date"), the Borrower shall
reimburse such Appropriate L/C Issuer through the Paying Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so reimburse
such Appropriate L/C Issuer by such time, the Paying Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the Equivalent amount
of such Revolving Credit Lender's Pro Rata Share thereof. In such event,the
Borrower shall be deemed to have requested a Revolving Credit Borrowing in
Dollars of Base Rate Loans to be disbursed on the Honor Date in an
Equivalent amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized portion of the
Revolving Credit Commitments and the conditions set forth in Section 4.03
(other than the delivery of a Committed Loan Notice). Any notice given by
an Appropriate L/C Issuer or the Paying Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender (including any Lender acting as an
Appropriate L/C Issuer) shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Paying Agent for the account
of the Appropriate L/C Issuer at the Paying Agent's Office in an Equivalent
amount equal to its Pro Rata Share of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the Paying
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each
Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan in Dollars to the Borrower in such amount. The
Paying Agent shall remit the funds so received to such Appropriate L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.03 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the Appropriate
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Revolving Credit Lender's payment to the Paying
Agent for the account of the Appropriate L/C Issuer pursuant to
32
Section 2.03(c)(ii) shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from such Lender
in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the
Appropriate L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Pro Rata Share of such amount shall be
solely for the account of such Appropriate L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Loans or L/C Advances to reimburse an Appropriate L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against such Appropriate L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Credit Lender's obligation to make Revolving
Credit Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.03 (other than delivery by the Borrower of a
Committed Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse any
Appropriate L/C Issuer for the amount of any payment made by such
Appropriate L/C Issuer under any Letter of Credit, together with interest
as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Paying Agent for the account of any Appropriate L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such
Appropriate L/C Issuer shall be entitled to recover from such Lender
(acting through the Paying Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date
on which such payment is immediately available to such Appropriate L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of such Appropriate L/C Issuer submitted to
any Revolving Credit Lender (through the Paying Agent) with respect to any
amounts owing under this Section 2.03(c)(vi) shall be conclusive absent
manifest error.
(d) Repayment of Participations.
(i) At any time after any Appropriate L/C Issuer has made a payment
under any Letter of Credit and has received from any Revolving Credit
Lender such Lender's L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Paying Agent receives for the account of such
Appropriate L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Paying Agent), the Paying Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in the same funds as those received by the Paying Agent.
(ii) If any payment received by the Paying Agent for the account of
any Appropriate L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by such Appropriate L/C
Issuer in its discretion), each Revolving Credit Lender shall pay to the
Paying Agent for the account of such Appropriate L/C Issuer its Pro Rata
33
Share thereof on demand of the Paying Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at
a rate per annum equal to the Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
any Appropriate L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), any Appropriate L/C
Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Appropriate L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by such Appropriate L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law;
(v) any exchange, release or nonperfection of any collateral, or any
release or amendment or waiver of or consent to departure from the Guaranty
or any other guarantee, for all or any of the L/C Obligations of the
Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the Borrower's instructions or other irregularity,
the Borrower will immediately notify the Appropriate L/C Issuer. The Borrower
shall be conclusively deemed to have waived any such claim against such
Appropriate L/C Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role of Appropriate L/C Issuer. Each Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the Appropriate L/C Issuer
shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of
any Appropriate L/C Issuer, any Agent-Related Person nor any of the respective
34
correspondents, participants or assignees of any Appropriate L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval ofthe Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. None of any Appropriate L/C Issuer, any Agent-Related Person, nor
any of the respective correspondents, participants or assignees of any
Appropriate L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however,that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against an Appropriate L/C Issuer, and an Appropriate L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by such Appropriate L/C Issuer's willful
misconduct or gross negligence or such Appropriate L/C Issuer's willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, any Appropriate L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and such
Appropriate L/C Issuer shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Paying Agent, (i)if any
Appropriate L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Paying Agent, for the benefit of the Appropriate L/C
Issuers and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to
the Paying Agent and the Appropriate L/C Issuers (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Paying Agent, for the benefit of
the L/C Issuers and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked, non-interest bearing deposit accounts
at KeyBank. If at any time the Paying Agent determines that any funds held as
Cash Collateral are subject to any right or claim of any Person other than the
Paying Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon
demand by the Paying Agent, pay to the Paying Agent, as additional funds to be
deposited and held in the deposit accounts at KeyBank as aforesaid, an amount
equal to the excess of (a) such aggregate Outstanding Amount over (b) the total
amount of funds, if any, then held as Cash Collateral that the Paying Agent
determines to be free and clear of any such right and claim. Upon the drawing
of any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable law, to
reimburse the Appropriate L/C Issuer.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the Appropriate L/C Issuer and the Borrower when a Letter of Credit is issued
(or deemed issued), (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
35
later version thereof as may be in effect at the time of issuance) shall apply
to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (or deemed
issuance) (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Paying Agent
for the account of each Revolving Credit Lender in accordance with its Pro Rata
Share a Letter of Credit fee for each Letter of Credit equal to the Applicable
Rate times the daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter
of Credit). Such letter of credit fees shall be computed on a quarterly basis
in arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance (or deemed
issuance) of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
Appropriate L/C Issuers. The Borrower shall pay directly to each Appropriate
L/C Issuer for its own account a fronting fee with respect to each Letter of
Credit issued (or deemed issued) by such Appropriate L/C Issuer equal to 0.125%
times the daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit). Such letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance (or deemed
issuance) of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. In addition, the Borrower shall pay directly to each
Appropriate L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
such Appropriate L/C Issuer relating to letters of credit as from time to time
in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender's Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Credit Commitment, and provided further that the Borrower shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
36
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall
be a Base Rate Loan denominated in Dollars. Immediately upon the making of a
Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the Paying Agent,
which may be given by telephone. Each such notice must be received by the Swing
Line Lender and the Paying Agent not later than 1:00 p.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which shall be
a minimum of $100,000, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Paying Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the Paying Agent
(by telephone or in writing) that the Paying Agent has also received such Swing
Line Loan Notice and, if not, the Swing Line Lender will notify the Paying Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Paying Agent
(including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on
the date of the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set forth
in the proviso to the first sentence of Section 2.04(a), or (B) that one or more
of the applicable conditions specified in Section 4.03 is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Revolving Credit Lender make a Base Rate Loan in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed
to be a Committed Loan Notice for purposes hereof) and in accordance with
the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Revolving Credit Commitments and
the conditions set forth in Section 4.03. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Paying Agent. Each Revolving
Credit Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Committed Loan Notice available to the Paying Agent
in immediately available funds for the account of the Swing Line Lender at
the Paying Agent's Office not later than 1:00 p.m. on the day specified in
such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount. The Paying Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by a
Revolving Credit Borrowing in accordance with Section 2.04(c)(i),the request
for Base Rate Loans submitted by the Swing Line Lender as set forth herein
shall be deemed to be a request by the Swing Line Lender that each of the
Revolving Credit Lenders fund its risk participation in the relevant Swing
Line Loan and each Revolving Credit Lender's payment to the Paying Agent
37
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Revolving Credit Lender fails to make available to the
Paying Agent for the account of the Swing Line Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the Paying
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A certificate of the
Swing Line Lender submitted to any Lender (through the Paying Agent) with
respect to any amounts owing under this Section 2.04(c)(iii) shall be
conclusive absent manifest error.
(iv) Each Revolving Credit Lender's obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and unconditionaland
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Revolving Credit Lender's
obligation to make Revolving Credit Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.03. No such funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Credit Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded) in
the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the
Swing Line Lender in its discretion), each Revolving Credit Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the Paying
Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Paying Agent will make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
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2.05 Prepayments.
(a) Optional. (i) The Borrower may, upon notice to the Paying Agent,
at any time or from time to time voluntarily prepay Loans in whole or in part
without premium or penalty; provided that (1) such notice must be received by
the Paying Agent not later than 11:00 a.m. (A) three Business Days prior to any
date of prepayment of Eurocurrency Rate Loans and (B) on the date of prepayment
of Base Rate Loans; (2) any prepayment of Term Loans or Revolving Credit Loans
shall be in a principal amount of not less than the Revolving Credit Borrowing
Minimum or the Revolving Credit Borrowing Multiple in excess thereof; and (3)
any prepayment of Swing Line Loans shall be in a principal amount of not less
than $100,000 or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Paying Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Pro Rata Share of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05. Each prepayment pursuant to this Section 2.05(a) shall be paid
to the Paying Agent for distribution to the Appropriate Lenders in accordance
with their respective Pro Rata Shares. Notwithstanding anything in this Section
2.05(a) to the contrary, the Borrower shall not be permitted to prepay any
Revolving Credit Loans at any time prior to the repayment in full of all Term
Loans and the termination of all Term Commitments.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a
copy to the Paying Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(1) such notice must be received by the Swing Line Lender and the Paying Agent
not later than 1:00 p.m. on the date of the prepayment, and (2) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given
by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes
of any property or assets permitted by Section 7.05(a), (f), (i) or (j) which in
the aggregate results in the realization by the Borrower or such Subsidiary of
Net Cash Proceeds (determined as of the date of such Disposition, whether or not
such Net Cash Proceeds are then received by the Borrower or such Subsidiary), in
excess of $2,500,000 per annum, the Borrower shall prepay an aggregate principal
amount of Term Loans and the Revolving Credit Loans equal to 100% of all Net
Cash Proceeds received therefrom immediately upon receipt thereof by the
Borrower or such Subsidiary; provided, however, that the Borrower shall be
required to prepay Revolving Credit Loans with the Net Cash Proceeds of any
Disposition of any property or assets permitted by (x) Section 7.05(f) or (i)
only to the extent that the aggregate Net Cash Proceeds from all such
Dispositions exceeds $150,000,000, and (y) Section 7.05(j) only to the extent
that the aggregate Net Cash Proceeds from all such Dispositions exceeds
$120,000,000; provided further, however, that, with respect to any Net Cash
Proceeds realized (I) under a Disposition described in this Section 2.05(b)(i)
or (II) proceeds of insurance and condemnation awards described in Section
2.05(b)(iii), at any time after all Term Loans have been repaid in full and all
Term Commitments have been terminated, at the option of the Borrower (as elected
by the Borrower in writing to the Co-Administrative Agents on or prior to the
date of such Disposition or the receipt of such insurance proceeds or
condemnation awards), and so long as no Default shall have occurred and be
continuing, the Borrower may reinvest all or any portion of such Net Cash
Proceeds in operating assets so long as within 270 days after the receipt of
such Net Cash Proceeds, the purchase of such assets shall have been consummated
(as certified by the Borrower in writing to the Co-Administrative Agents);
39
provided still further, however, that any Net Cash Proceeds not so reinvested
shall be immediately applied to the prepayment of the Loans as set forth in this
Section 2.05.
(ii) So long as any Term Loan or Term Commitment remains outstanding,
upon the incurrence or issuance by the Borrower or any of its Subsidiaries of
any Indebtedness (other than Indebtedness expressly permitted to be incurred or
issued pursuant to Section 7.03(a)(A), (b)(A), (c)(A), (c)(B), (c)(C), (c)(D),
(c)(E), (c)(F) or (c)(G)), the Borrower shall prepay an aggregate principal
amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) Upon any Extraordinary Receipt received by or paid to or for the
account of the Borrower or any of its Subsidiaries and not otherwise included in
clause (i) or (ii) of this Section 2.05(b), the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds
received therefrom immediately upon receipt thereof by the Borrower or such
Subsidiary.
(iv) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv)
unless after the prepayment in full of the Loans and Swing Line Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.
(v) Each prepayment of Loans pursuant to this Section 2.05(b) shall be
applied, first, to the Term Facility and, thereafter, to the Revolving Credit
Facility in the manner set forth in clause (vi) of this Section 2.05(b).
(vi) Prepayments of the Revolving Credit Facility made pursuant to
clause (i), (ii), (iii), (iv) or (v) of this Section 2.05(b), first, shall be
applied to prepay L/C Borrowings outstanding at such time until all such L/C
Borrowings are paid in full, second, shall be applied to prepay Swing Line Loans
outstanding at such time until all such Swing Line Loans are paid in full,
third, shall be applied to prepay Revolving Credit Loans outstanding at such
time until the Outstanding Amount of all such Revolving Credit Loans is reduced
to $350,000,000 and, fourth, shall be used to Cash Collateralize the L/C
Obligations; and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i), (ii) or (iii) of this Section 2.05(b), the
amount remaining, if any, after the prepayment of all Loans, to the extent
required under this Section 2.05(b)(vi), and L/C Borrowings outstanding at such
time and the L/C Obligations have been Cash Collateralized in full (the sum of
such prepayment amounts, cash collateralization amounts and remaining amount
being, collectively, the "Reduction Amount") may be retained by the Borrower for
use in the ordinary course of its business, and the Revolving Credit Facility
shall be automatically and permanently reduced as set forth in Section
2.06(b)(ii). Upon the drawing of any Letter of Credit which has been Cash
Collateralized, such funds shall be applied (without any further action by or
notice to or from the Borrower or any other Loan Party) to reimburse the
Appropriate L/C Issuer or the Revolving Credit Lenders, as applicable.
(c) Prepayments of Committed Currency Loans. If as of any
Determination Date (i) the Equivalent of the Outstanding Amount of all Revolving
Credit Loans, all Swing Line Loans and all L/C Obligations exceeds the Revolving
Credit Facility then in effect or (ii) the Equivalent of all L/C Obligations
exceeds the Letter of Credit Sublimit, in each case, the Borrower shall, on such
Determination Date, prepay Revolving Credit Loans denominated in Committed
Currencies and/or Cash Collateralize Letters of Credit denominated in a
Committed Currency in an aggregate amount equal to such excess. If as of any
Determination Date the Equivalent of the Outstanding Amount of all Revolving
Credit Loans denominated in a Committed Currency exceeds 105% of the Committed
40
Currency Sublimit then in effect, the Borrower shall, on such Determination
Date, prepay Revolving Credit Loans denominated in Committed Currencies and/or
Cash Collateralize Letters of Credit denominated in a Committed Currency in an
aggregate amount equal to the amount by which such Outstanding Amount exceeds
the Committed Currency Sublimit.
(d) Prepayments to Include Accrued Interest, Etc. All prepayments
under this Section 2.05 shall be made together with (i) accrued and unpaid
interest to the date of such prepayment on the principal amount so prepaid and
(ii) in the case of any such prepayment of a Eurocurrency Rate Loan on a date
other than the last day of an Interest Period therefor, any amounts owing in
respect of such Eurocurrency Rate Loan pursuant to Section 3.05.
2.06 Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon notice to the Paying Agent,
terminate the unused portions of the Term Commitments, the Letter of Credit
Sublimit, the Committed Currency Sublimit or the unused Revolving Credit
Commitments, or from time to time permanently reduce the unused portions of the
Term Commitments, the Letter of Credit Sublimit, the Committed Currency Sublimit
or the unused Revolving Credit Commitments; provided that (i) any such notice
shall be received by the Paying Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or
reduce the unused portions of the Term Commitments, the Letter of Credit
Sublimit, the Committed Currency Sublimit or the unused Revolving Credit
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and
(iv) if, after giving effect to any reduction of the Revolving Credit Facility,
the Letter of Credit Sublimit, the Swing line Sublimit or the Committed Currency
Sublimit exceeds the amount of the Revolving Credit Facility, such Letter of
Credit Sublimit, Swing Line Sublimit or Committed Currency Sublimit shall be
automatically reduced by the amount of such excess. Notwithstanding anything in
this Section 2.06(a) to the contrary, the Borrower shall not be permitted to
terminate or reduce the unused Revolving Credit Commitments at any time prior to
the repayment in full of all Term Loans and the termination of all Term
Commitments.
(b) Mandatory. (i) The Term Facility shall be automatically and
permanently reduced on the date of the Term Borrowing (after giving effect to
the Term Borrowing), and from time to time thereafter upon each repayment or
prepayment of the outstanding Term Loans, by an amount equal to the amount by
which (A) the Term Facility immediately prior to such reduction exceeds (B) the
aggregate principal amount of all Term Loans outstanding at such time. If the
High Grade Notes are issued on or prior to the Funding Date, then the Term
Facility shall be automatically and permanently reduced on the date of such
issuance in an amount equal to the aggregate amount of Net Cash Proceeds
received in connection with such issuance.
(ii) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving Credit
Loans outstanding thereunder is required to be made pursuant to Section
2.05(b)(i), (ii) or (iii) by an amount equal to the applicable Reduction Amount;
provided, however, that notwithstanding the foregoing provisions of this clause
(ii) and Section 2.05(b)(vi), in no event shall the Revolving Credit Facility be
reduced, pursuant to this clause (ii), to less than $350,000,000.
(iii)If after giving effect to any reduction or termination of unused
Commitments under this Section 2.06, the Letter of Credit Sublimit, the
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Committed Currency Sublimit or the Swing Line Sublimit exceeds the amount of the
Revolving Credit Commitments, such Sublimit shall be automatically reduced by
the amount of such excess.
(c) Application of Commitment Reductions; Payment of Fees. The Paying
Agent will promptly notify the Lenders of any termination or reduction of unused
portions of the Term Commitment, the Letter of Credit Sublimit, the Committed
Currency Sublimit or the unused Revolving Credit Commitment under this Section
2.06. Upon any reduction of unused Commitments under a Facility, the Commitment
of each Lender under such Facility shall be reduced by such Lender's Pro Rata
Share of the amount by which such Facility is reduced. All commitment fees
accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) Term Loans. The Borrower shall repay to the Paying Agent for the
ratable account of the Term Lenders on the Maturity Date the aggregate principal
amount of all Term Loans outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the Paying
Agent for the ratable account of the Revolving Credit Lenders on the Maturity
Date the aggregate principal amount of all Revolving Credit Loans outstanding on
such date. (c) Swing Line Loans. The Borrower shall repay each Swing Line Loan
on the earlier to occur of (i) the date agreed to between the Borrower and the
Swing Line Lender, but in no event more than 30 days after such Loan is made and
(ii) the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of Section 2.08(b), (i) each Eurocurrency
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Applicable Rate for
Eurocurrency Rate Loans; (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Applicable Rate for Base Rate Loans; and (iii) each
Swing Line Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Applicable
Rate for Base Rate Loans.
(b) If any amount of principal, interest or fees payable under any of
Sections 2.03(i), 2.03(j) or 2.09 are not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Furthermore, upon the request of the Required
Lenders, while any Event of Default exists, the Borrower shall pay interest on
the principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
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2.09 Fees. In addition to certain fees described in Sections 2.03(i)
and 2.03(j):
(a) Commitment Fee. The Borrower shall pay to the Paying Agent for the
account of each Appropriate Lender in accordance with its Pro Rata Share, a
commitment fee equal to (x) from the Documentation Closing Date through the
Funding Date, 0.250%, and (y) thereafter, the Applicable Rate, in each case,
times the actual daily amount by which the aggregate Revolving Credit
Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit
Loans and (ii) the Outstanding Amount of L/C Obligations; provided, however,
that any commitment fee accrued with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
prior to such time; and provided further that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender. The commitment fee shall accrue at all times from the
Documentation Closing Date through the Maturity Date, including at any time
during which one or more of the conditions in Article IV is not met, and shall
be due and payable in arrears on the earlier of (i) the Funding Date, and (ii)
March 31, 2003, and thereafter on the last Business Day of each March, June,
September and December, and on the Maturity Date. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Agents for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
(ii) The Borrower shall pay to the Agents such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.10 Computation of Interest and Fees. .All computations of interest
for Base Rate Loans when the Base Rate is determined by KeyBank's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Paying Agent of an interest
rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.
2.11 Evidence of Indebtedness.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Paying Agent in
the ordinary course of business. The accounts or records maintained by the
Paying Agent and each Lender shall be conclusive absent manifest error of the
amount of the Credit Extensions made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Paying Agent in respect of such matters, the
accounts and records of the Paying Agent shall control in the absence of
43
manifest error. Upon the request of any Lender made through the Paying Agent,
the Borrower shall execute and deliver to such Lender (through the Paying Agent)
a Note, which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in Section
2.11(a), each Lender and the Paying Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the Paying
Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Paying Agent shall control in the absence of
manifest error.
(c) Entries made in good faith by the Paying Agent in the Register
pursuant to Section 2.11(b), and by each Lender in its account or accounts
pursuant to Section 2.11(a) above, shall be prima facie evidence of the amount
of principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error; provided that the failure of the Paying Agent
or such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement and the other Loan Documents.
2.12 Payments Generally
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder (except with respect to principal of, interest on, and other amounts
relating to, Loans denominated in a Committed Currency) shall be made to the
Paying Agent, for the account of the respective Lenders to which such payment is
owed, at the Paying Agent's Office in Dollars and in immediately available funds
not later than 2:00 p.m. on the date specified herein. Except as otherwise
expressly provided herein, all payments by the Borrower with respect to
principal of, interest on, and other amounts relating to, Loans denominated in a
Committed Currency shall be made to the Paying Agent, for the account of the
respective Lenders to which such payment is owed, at the Payment Office in such
Committed Currency and in immediately available funds not later than 2:00 p.m.
on the date specified herein. The Paying Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Paying Agent after 2:00 p.m. shall be
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurocurrency Rate Loans to be made in the
next succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.
(c) Unless the Borrower or any Lender has notified the Paying Agent,
prior to the date any payment is required to be made by it to the Paying Agent
hereunder, that the Borrower or such Lender, as the case may be, will not make
such payment, the Paying Agent may assume that the Borrower or such Lender, as
the case may be, has timely made such payment and may (but shall not be so
required to), in reliance thereon, make available a corresponding amount to the
44
Person entitled thereto. If and to the extent that such payment was not in fact
made to the Paying Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Paying Agent the portion of such assumed
payment that was made available to such Lender in immediately available funds,
together with interest thereon in respect of each day from and including the
date such amount was made available by the Paying Agent to such Lender to the
date such amount is repaid to the Paying Agent in immediately available funds at
the higher of (A) Federal Funds Rate from time to time in effect in the case of
Loans denominated in Dollars or (B) the cost of funds incurred by the Paying
Agent in respect of such amount in the case of Loans denominated in Committed
Currencies; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Paying Agent the amount thereof in immediately
available funds, together with interest thereon for the period from the date
such amount was made available by the Paying Agent to the Borrower to the date
such amount is recovered by the Paying Agent (the "Compensation Period") at a
rate per annum equal to the higher of (A) Federal Funds Rate from time to time
in effect in the case of Loans denominated in Dollars or (B) the cost of funds
incurred by the Paying Agent in respect of such amount in the case of Loans
denominated in Committed Currencies. If such Lender pays such amount to the
Paying Agent, then such amount shall constitute such Lender's Loan included in
the applicable Borrowing in the case of Loans denominated in Dollars or (B) the
cost of funds incurred by the Paying Agent in respect of such amount in the case
of Loans denominated in Committed Currencies. If such Lender does not pay such
amount forthwith upon the Paying Agent's demand therefor, the Paying Agent may
make a demand therefor upon the Borrower, and the Borrower shall pay such amount
to the Paying Agent, together with interest thereon for the Compensation Period
at a rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the Paying
Agent or the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
A notice of the Paying Agent to any Lender or the Borrower with respect
to any amount owing under this Section
2.12(c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Paying Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the Paying
Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Paying Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
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(g) Whenever any payment received by the Paying Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Agents and the Lenders under or in respect of
this Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Paying Agent and applied by the Agents and the Lenders in the
order of priority set forth in Section 8.03. If the Paying Agent receives funds
for application to the Obligations of the Loan Parties under or in respect of
the Loan Documents under circumstances for which the Loan Documents do not
specify the manner in which such funds are to be applied, the Paying Agent may,
but shall not be obligated to, elect to distribute such funds to each of the
Lenders in accordance with such Lender's Pro Rata Share of the sum of (A) the
Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding
Amount of all L/C Obligations outstanding at such time, in repayment or
prepayment of such of the outstanding Loans or other Obligations then owing to
such Lender.
(h) To the extent that the Paying Agent receives funds for application
to the amounts owing by the Borrower under or in respect of this Agreement or
any Note in currencies other than the currency or currencies required to enable
the Paying Agent to distribute funds to the Lenders in accordance with the terms
of this Section 2.12, the Paying Agent shall be entitled to convert or exchange
such funds into Dollars or into a Committed Currency or from Dollars to a
Committed Currency or from a Committed Currency to Dollars, as the case may be,
to the extent necessary to enable the Paying Agent to distribute such funds in
accordance with the terms of this Section 2.12; provided that the Borrower and
each of the Lenders hereby agree that the Paying Agent shall not be liable or
responsible for any loss, cost or expense suffered by the Borrower or such
Lender as a result of any conversion or exchange of currencies affected pursuant
to this Section 2.12(h) or as a result of the failure of the Paying Agent to
effect any such conversion or exchange; and provided further that the Borrower
agrees to indemnify the Paying Agent and each Lender, and hold the Paying Agent
and each Lender harmless, for any and all losses, costs and expenses incurred by
the Paying Agent or any Lender for any conversion or exchange of currencies (or
the failure to convert or exchange any currencies) in accordance with this
Section 2.12(h).
2.13 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
or the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Paying Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the
participations in L/C Obligations or Swing Line Loans held by them, as the case
may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from the purchasing Lender under
any of the circumstances described in Section 10.06 (including pursuant to
any settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay
to the purchasing Lender the purchase price paid therefor, together with an
amount equal to such paying Lender's ratable share (according to the proportion
of (i) the amount of such paying Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered, without further interest thereon. The Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of setoff, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Paying Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
46
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.14 Committed Currency Borrowings.
(a) Determination of Equivalents. The Paying Agent will determine the
Equivalent amount on each of the following dates: (i) the last Business Day of
each month, (ii) the date a Request for Credit Extension is delivered to the
Paying Agent with respect to each Credit Extension with respect to each Credit
Extension issued or advanced that results in an Outstanding Amount denominated
in a Committed Currency, (iii) each date on which any Outstanding Amount is due,
(iv) each Interest Payment Date applicable thereto, (v) the Honor Date with
respect to each Letter of Credit denominated in a Committed Currency, (vi) each
date of an amendment of any such Letter of Credit denominated in a Committed
Currency having the effect of increasing the amount thereof, (vii) any date on
which an L/C Borrowing is deemed to have been made with respect to a Letter of
Credit denominated in a Committed Currency, and (viii) any additional and more
frequent dates as the Lead Arrangers in their sole discretion may, or at the
direction of the Required Lenders shall, select from time to time (each such
date under clauses (i) through (viii), being a "Determination Date").
(b) Notification of Availability. If on any date on which a Revolving
Credit Loan denominated in a Committed Currency is requested to be made or
continued, in the event that the Committed Currency requested or elected by the
Borrower to be continued is not available to the Paying Agent, then the Paying
Agent shall notify the Borrower no later than 4:00 p.m., three Business Days
prior to the proposed Borrowing or proposed continuation.
(c) Consequences of Non-Availability. If the Paying Agent notifies the
Borrower pursuant to Section 2.14(b) that the Committed Currency requested or
elected by the Borrower to be continued is not available, such notification
shall (i) in the case of any request for a Borrowing, revoke such request and
(ii) in the case of any continuation or conversion, result in the Eurocurrency
Rate Loans denominated in such Committed Currency being automatically converted
into Eurocurrency Rate Loans denominated in Dollars for a one month Interest
Period on the last day of the then current Interest Period with respect to such
Eurocurrency Rate Loans denominated in such Committed Currency.
(d) Automatic Conversions. During the existence of an Event of
Default, all outstanding Loans denominated in a Committed Currency shall be
redenominated and converted into their Equivalent of Base Rate Loans in Dollars
on the last day of the Interest Period applicable to any such Loans.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Agent or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Agent and each
Lender, taxes imposed on or measured by its overall net income, and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the Laws of which such Agent or such
Lender, as the case may be, is organized or maintains a lending office, or to
which such Agent or such Lender has a present or former connection (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
47
as "Taxes"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to any Agent or
any Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 3.01), each of such Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) upon the request
of the Paying Agent, the Borrower shall furnish to the Paying Agent (which shall
forward the same to such Agent or such Lender, as the case may be) the original
or a certified copy of a receipt evidencing payment thereof to the extent such a
receipt is issued therefor, or other written proof of payment thereof that is
reasonably satisfactory to the Paying Agent.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to any
Agent or any Lender, the Borrower shall also pay to such Agent or to such
Lender, as the case may be, at the time interest is paid, such additional amount
that such Agent or such Lender specifies is necessary to preserve the after-tax
yield (after factoring in all taxes, including taxes imposed on or measured by
net income) that such Agent or such Lender would have received if such Taxes or
Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify each Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
3.01) paid by such Agent and such Lender, (ii) amounts payable under Section
3.01(c) and (iii) any liability (including additions to tax, penalties, interest
and expenses) arising therefrom or with respect thereto. Payment under this
Section 3.01(d) shall be made within 30 days after the date such Lender or such
Agent makes a demand therefor.
3.02 Illegality. If any Lender determines that the introduction or
change in any Law after the Documentation Closing Date has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable Lending Office to make, maintain or fund Eurocurrency Rate
Loans in Dollars or any Committed Currency, or to determine or charge interest
rates based upon the Eurocurrency Rate, then, on notice thereof by such Lender
to the Borrower through the Paying Agent, any obligation of such Lender to make
or continue Eurocurrency Rate Loans or to convert Base Rate Loans to
Eurocurrency Rate Loans shall be suspended until such Lender notifies the Paying
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Paying Agent), prepay or, if applicable,
convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans (or if
such Eurocurrency Rate Loan is denominated in any Committed Currency, be
exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate
Loan), either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
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3.03 Inability to Determine Rates. If the Required Lenders determine
that for any reason adequate and reasonable means do not exist for determining
the Eurocurrency Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan, or that the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, or
that Dollar or Committed Currency deposits are not being offered to banks in the
London interbank Eurocurrency market for the applicable amount and the Interest
Period of such Eurocurrency Rate Loan, the Paying Agent will promptly so notify
the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans shall be suspended until the Paying Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurocurrency Rate Loans or (as the case
may be) issuing or participating in Letters of Credit, or a reduction in the
amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this Section 3.04(a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, or to which such
Lender has a present or former connection, and (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time upon demand of such
Lender (with a copy of such demand to the Paying Agent), the Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Paying Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender for
such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower
shall have received at least 15 days' prior notice (with a copy to the Paying
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
49
3.05 Funding Losses. (a) Upon demand of any Lender (with a copy to the
Paying Agent) from time to time, the Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(i) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(ii) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
(iii)any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16;
excluding any loss of anticipated profits but including any loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
(b) In addition to the rights of the Lenders set forth in Section
3.05(a), at any time on or prior to the 180th day following the Funding Date,
upon demand of the Paying Agent, from time to time, the Borrower shall promptly
compensate the Paying Agent for and hold the Paying Agent harmless from any
loss, cost or expense incurred by it as a result of any assignment of a
Eurodollar Rate Loan on a day other than the last day of the Interest Period
therefor as a result of the syndication of the Facilities.
(c) For purposes of calculating amounts payable by the Borrower to the
Lenders or the Paying Agent under this Section 3.05, each Lender shall be deemed
to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate
for such Loan by a matching deposit or other borrowing in the London interbank
Eurocurrency market for a comparable amount and for a comparable period, whether
or not such Eurocurrency Rate Loan was in fact so funded.
3.06 Matters Applicable to All Requests for Compensation .
(a) A certificate of any Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error;
provided, however, that no Agent or Lender may seek compensation under this
Article III more than 90 days after such Agent or Lender had actual knowledge
that such amount or amounts were payable under this Article III. In determining
such amount, such Agent or such Lender may use any reasonable averaging and
attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04, the Borrower may replace such Lender in accordance with Section
10.16.
3.07 Survival. All of the Borrower's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
50
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions to Documentation Closing Date. The "Documentation
Closing Date" shall be the first date on which the Co-Administrative Agents
shall have received each of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, if
applicable, each dated such date (or, in the case of certificates of
governmental officials, a recent date before such date) and each in form and
substance satisfactory to the Lead Arrangers, the Lenders and their legal
counsel:
(a) executed counterparts of this Agreement and the Guaranty,
sufficient in number for distribution to each Agent, each Lender and the
Borrower;
(b) a Note executed by the Borrower in favor of each Lender requesting
a Note;
(c) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Lead Arrangers and the Lenders may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Party is a party or is to be
a party;
(d) such documents and certifications as the Lead Arrangers and the
Lenders may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each Loan Party is validly existing, in good
standing and qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;
(e) a favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Loan Parties, addressed to each Agent and each Lender, as to the matters set
forth in Exhibit G-1 and such other matters concerning the Loan Parties and
the Loan Documents as the Lead Arrangers and the Lenders may reasonably
request;
(f) a favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, internal counsel to
the Loan Parties in Pennsylvania, as to the matters set forth in Exhibit G-2
and such other matters concerning the Loan Parties and the Loan Documents as
the Lead Arrangers and the Lenders may reasonably request;
(g) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals are
so required;
(h) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that there has been no event or circumstance since the date
of the Audited Financial Statements that has had or could be reasonably
expected to have, either individually or in the aggregate, a Material
Adverse Effect; and (B) the current Debt Ratings;
51
(i) evidence that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect;
(j) certified copies of each of the Related Documents, duly executed
by the parties thereto and in form and substance satisfactory to the Lead
Arrangers and the Lenders, together with such other agreements, instruments
and other documents delivered in connection therewith as the Lead Arrangers
and the Lenders shall request;
(k) such other assurances, certificates, documents, consents or
opinions as the Co-Administrative Agents may reasonably require.
4.02 Conditions of Initial Credit Extensions. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) The receipt by the Co-Administrative Agents of the following, each
of which shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, if applicable, each dated the Funding Date (or, in the
case of certificates of governmental officials, a recent date before the Funding
Date) and each in form and substance satisfactory to the Co-Administrative
Agents and their legal counsel:
(i) a certificate signed by a Responsible Officer of the Borrower
certifying that the conditions specified in Sections 4.03(a) and 4.03(b)
have been satisfied;
(ii) a certificate attesting to the Solvency of the Borrower and its
Subsidiaries on a consolidated basis before and after giving effect to the
Transaction, from the Borrower's Chief Financial Officer or Executive Vice
President-Finance and Administration;
(iii)a Notice of Borrowing or Notice of Issuance, as applicable,
relating to the initial Credit Extension;
(iv) evidence that the Existing Credit Agreements have been or
concurrently with the Funding Date are being terminated and all Liens
securing obligations under the Existing Credit Agreements have been or
concurrently with the Funding Date are being released;
(v) evidence that all outstanding commercial paper of the Borrower and
all outstanding commercial paper, if any, of the Business shall each have
been repaid in full; and
(vi) such other assurances, certificates, documents, consents or
opinions not otherwise delivered on the Documentation Closing Date as any
Agent may reasonably require.
(b) All fees required to be paid by the Borrower on or before the
Funding Date shall have been paid in full.
(c) All accrued reasonable expenses of the Agents and the Lenders,
including, without limitation, Attorney Costs for which the Borrower has
received a reasonably detailed invoice at least 5 days prior to the Funding
Date, shall have been paid in full.
(d) The Documentation Closing Date shall have occurred, and the Funding
Date shall have occurred on or before March 31, 2003.
52
(e) The absence of any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or Governmental
Authority that (a) could reasonably be expected to materially and adversely
affect the Borrower and its Subsidiaries or the Business and its Subsidiaries,
(b) purports to adversely affect the Transaction or the ability of the Borrower
or any other Loan Party to perform their respective obligations under the Loan
Documents, or (c) purports to affect the legality, validity or enforceability of
any Loan Document.
(f) All governmental, shareholder and third party consents (including
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, Council Regulation (EEC 4064/89) of the European Community
and any other competition or investment Law clearance or approval) and other
approvals necessary to consummate the Transaction shall have been obtained,
except for those consents (i) that the Lead Arrangers have agreed in writing may
be obtained after the Funding Date, and (ii) the failure of which to obtain
would not, in the reasonable discretion of the Lead Arrangers, materially
adversely affect the Lenders. All such consents and approvals shall be in full
force and effect, and all applicable waiting periods shall have expired without
any action being taken by any Governmental Authority that could restrain,
prevent or impose any material adverse conditions on the Transaction or that
could seek or threaten any of the foregoing, and no law or regulation shall be
applicable which in the reasonable judgment of the Lead Arrangers could have
such effect.
(g) The completion of (i) the issuance to the Sellers of approximately
$140,000,000 worth of shares of common equity of the Borrower (the "IR Equity
Issuance") and (ii) a common equity offering by the Borrower to the public for a
price of not less than $14.75 per share and resulting in gross proceeds to the
Borrower of not less than $162,250,000 (the "Public Equity Issuance"). The
Transaction shall have been consummated, or shall be consummated substantially
simultaneously with the initial Credit Extension, in accordance with the terms
of the Transaction Documents and in compliance with applicable Law and
regulatory approvals. The Lenders shall have received copies of each proposed
alteration, amendment, change, supplement, waiver or other modification to the
Purchase Agreement, and the Purchase Agreement shall not have been altered,
amended or otherwise changed or supplemented or any material condition therein
waived without the prior written consent of the Lead Arrangers to the extent any
such alteration, amendment or other change would, in the reasonable discretion
of the Lead Arrangers, materially adversely affect the Lenders. The Lenders
shall have received copies of each amendment or other modification to the
Related Documents (other than the Purchase Agreement), and such Related
Documents shall not have been amended or otherwise modified or any material
condition therein waived without the prior written consent of the Lead Arrangers
to the extent any such amendment, modification or waiver would, in the
reasonable discretion of the Lead Arrangers, materially adversely affect the
Lenders.
(h) After giving effect to the Transaction, including all Credit
Extensions made in connection therewith, the amount by which the aggregate
Revolving Credit Commitments exceeds the sum of (i) the Outstanding Amount of
Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations shall
be no less than $125,000,000.
(i) There shall not have occurred a material adverse change in the
business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries or
the Business and its Subsidiaries taken as a whole since December 31, 2001 or a
material adverse change in the facts and information regarding the Borrower, the
Business and their respective Subsidiaries taken as a whole as represented to
the Agents and the Lenders on or prior to October 15, 2002.
(j) None of Agents or the Lenders becoming aware after October 15, 2002
of any information relating to the Borrower and its Subsidiaries or the Business
53
and its Subsidiaries not previously disclosed to the Agents and the Lenders (or
of which the Agents and the Lenders were not otherwise aware), or any event,
development or change relating to the Borrower and its Subsidiaries or the
Business and its Subsidiaries after such date that, in the reasonable judgment
of the Agents and the Lenders, is inconsistent in a material and adverse manner
with any information or other matter disclosed to the Agents and the Lenders
prior to such date.
(k) Receipt by the Lead Arrangers of (i) consolidated and consolidating
monthly financial statements of the Business and its Subsidiaries for each
month, beginning with the month ending August 2002, for which financial
statements are available, prepared in a manner consistent with the financial
statements previously delivered to the Lead Arrangers and otherwise in form
satisfactory to the Lead Arrangers, (ii) consolidated and consolidating
quarterly financial statements of the Business and its Subsidiaries for each
fiscal quarter, beginning with the fiscal quarter ending September 2002, for
which financial statements are available, prepared in a manner consistent with
the financial statements previously delivered to the Lead Arrangers and
otherwise in form satisfactory to the Lead Arrangers, and (iii) either (A)
consolidated year-to-date financial statements of the Business and its
Subsidiaries as of June 30, 2002 and as of the end of each fiscal quarter
thereafter for which financial statements are available, reviewed by independent
public accountants of recognized national standing and prepared in accordance
with requirements of Regulation S- X under the Securities Act of 1933 and all
other accounting rules and regulations of the SEC promulgated thereunder, and
otherwise in form satisfactory to the Lead Arrangers, or (ii) if available,
consolidated and consolidating financial statements of the Business and its
Subsidiaries for the fiscal year ending December 31, 2002, audited by
independent public accountants of recognized national standing and prepared in
conformity with GAAP.
(l) If the condition in clause (iii) of Section 4.02(k) is satisfied by
providing the financial statements described in subclause (A) thereof, the Lead
Arrangers shall have received satisfactory evidence that the underwriters for
the Public Equity Issuance have received financial statements identical to those
described in such subclause (A) accompanied by a customary comfort letter
addressed to such underwriters stating, among other things, that the financial
statements accompanying such comfort letter were reviewed in accordance with SAS
71.
(m) The Borrower and its Subsidiaries shall have a last twelve months
pro forma Consolidated EBITDA (an "LTM EBITDA") (i) for the twelve-month period
ended September 30, 2002 of at least $381,000,000, and (ii) for the twelve-month
period ending at the end of each fiscal quarter thereafter for which financial
statements (produced in a manner consistent with the financial statements for
the period ended September 30, 2002) are available, of not less than the LTM
EBITDA for the immediately preceding fiscal quarter, in each case, calculated as
if the Transaction had occurred on the first day of each such twelve month
period.
(n) All Loans to be made by the Lenders on the Funding Date shall be in
full compliance with Regulation U issued by the FRB.
(o) The Borrower shall have delivered to the Lead Arrangers revised
Schedules 5.06, 5.08(b), 5.09, 5.12, 5.13, 7.02(f), 7.03, 7.08, 7.09 and 10.22,
such revisions to be directly related to the Acquisition and to be reasonably
acceptable to the Lead Arrangers.
4.03 Conditions to all Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:
54
(a) The representations and warranties of the Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished by the Borrower or any other Loan Party
at any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom.
(c) The Paying Agent and, if applicable, the Appropriate L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurocurrency Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.03(a)
and 4.03(b) have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the Lenders
that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each
Loan Party (a) is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations, consents
and approvals to (i) own or lease its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents and
Related Documents to which it is a party, (c) is duly qualified and is licensed
and in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all applicable Laws;
except in each case referred to in clause (b)(i), (c) or (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document and Related Document to
which such Person is or is to be a party, and the consummation of the
Transaction, are within such Loan Party's corporate or other powers, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) except as would not be reasonably likely to have a Material
Adverse Effect, any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) except as would not be reasonably likely to have a Material Adverse
Effect, violate any Law. No Loan Party or any of its Subsidiaries is in
violation of any Law, the violation of which could be reasonably likely to have
a Material Adverse Effect.
55
5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (i) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, or for the
consummation of the Transaction, or (ii) the exercise by any Agent or any Lender
of its rights under the Loan Documents, except for those that have already been
obtained or have been determined by the Borrower as not necessary in accordance
with Section 4.02(f).
5.04 Binding Effect. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar or laws of general
applicability affecting the enforcement of creditors rights and (b) the
application of general principals of equity.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present, in all material
respects, the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
Indebtedness and other liabilities, direct or contingent, of the Borrower and
its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Borrower and
its Subsidiaries dated September 30, 2002, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present, in all material respects, the
financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
5.06 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower, threatened at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement, any other Loan
Document, or any Related Document or the consummation of the Transaction, or (b)
except as otherwise set forth on Schedule 5.06 (the "Disclosed Litigation"),
either individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect, and there shall have been no adverse change in the
status, or financial effect on any Loan Party or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 5.06.
56
5.07 No Default. Neither the Borrower nor any Subsidiary is in default
under or with respect to, or a party to, any Contractual Obligation that could,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.08 Ownership of Property; Liens.
(a) Each Loan Party and each of its Subsidiaries has good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(b) Set forth on Schedule 5.08(b) hereto is a complete and accurate
list of all Liens (other than any Lien permitted pursuant to Section 7.01(b)
through (j)) on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of each of the Documentation Closing Date and the
Funding Date the lienholder thereof, the principal amount of the obligations
secured thereby and the property or assets of such Loan Party or such Subsidiary
subject thereto. The property of the Borrower and its Subsidiaries is subject
to no Liens, other than Liens set forth on Schedule 5.08(b), and as otherwise
permitted by Section 7.01. 5.09 Environmental Compliance. Except as otherwise
set forth on Schedule 5.09:
(a) The Borrower and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and known
Environmental Liabilities on their respective businesses, operations and
properties, and as a result thereof the Borrower has reasonably concluded that
such Environmental Laws, known Environmental Liabilities, and Environmental
Liabilities that would be known based upon appropriate inquiry and
investigation, could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each Loan Party are in compliance with all
Environmental Laws governing its business, except to the extent that any such
failure to comply (together with any resulting penalties, fines or forfeitures)
would not reasonably be expected to have a Material Adverse Effect. All
licenses, permits, registrations or approvals required for the business of the
Borrower and each Loan Party under any Environmental Law have been secured and
the Borrower and each such Loan Party are in substantial compliance therewith,
except for such licenses, permits, registrations or approvals the failure to
secure or to comply therewith is not reasonably likely to have a Material
Adverse Effect. Neither the Borrower nor any Loan Party has received written
notice, or otherwise knows, that it is in any respect in noncompliance with,
breach of, or default under any Environmental Laws, and no event has occurred
and is continuing which, with the passage of time or the giving of notice or
both, would constitute noncompliance, breach of, or default thereunder, except
in each such case, such noncompliance, breaches or defaults as would not
reasonably be expected to, in the aggregate, have a Material Adverse Effect. No
property currently or formerly owned or operated by the Borrower or any Loan
Party existing as of the Documentation Closing Date and, to the knowledge of the
Borrower, no property currently or formerly owned or operated by the Business,
is listed on the NPL or any analogous foreign, state or local list, and, to the
knowledge of the Borrower, no such properties are proposed for listing or are
adjacent to a listed property.
(c) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any real property currently or
formerly owned or operated by the Borrower or by any Loan Party existing as of
the Documentation Closing Date, or, to the knowledge of the Borrower, based upon
57
appropriate inquiry and investigation, any real property currently or formerly
owned or operated by the Business, or (ii) released, discharged or disposed on
any such real property, in each case where such occurrence or event is not in
compliance with Environmental Laws and is reasonably likely to have a Material
Adverse Effect.
5.10 Insurance. The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies or are
self-insured, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. As of the Documentation Closing Date, neither any Loan
Party nor any of its Subsidiaries is party to any tax sharing agreement, except
for tax sharing agreements among any of the Loan Parties.
5.12 Pension Plans.
(a) Except as set forth on Schedule 5.12 hereto, (i) each Plan has been
and will be funded in accordance with the terms of ERISA, (ii) there has been no
Reportable Event, (iii) no Pension Plan has incurred a liability to the PBGC,
(iv) no Pension Plan has incurred a liability under Title IV of ERISA (other
than for premiums due and not delinquent under Section 4007 of ERISA), (v)
neither the Borrower nor any Loan Party has incurred any withdrawal liability
(within the meaning of Part 1 of Subtitle E of Title I of ERISA) with respect to
any Multiemployer Plan, (vi) neither the Borrower nor any Loan Party intends to
withdraw from a Multiemployer Plan, (vii) no Loan Party has incurred any
liability under Section 502(i) of ERISA or Section 4975 of the Code with respect
to the Plans, (viii) no prohibited transactions have occurred, (ix) no ERISA
Event has occurred or is reasonably expected to occur, (x) the Borrower and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code in accordance with Section 412 of the Code or pursuant
to any binding agreement with the PBGC, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan, (xi) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than for premiums due
and not delinquent under Section 4007 of ERISA), (xii) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan, (xiii) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA, (xiv) each Plan is in compliance with the applicable
provisions of ERISA, the Code and other Federal or state Laws, and (xv) each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification, and which, with respect to subsections (i)
through (xv) above, in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect.
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(b) There are no pending or, to the knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
5.13 Subsidiaries; Equity Interests. As of each of the Documentation
Closing Date and the Funding Date, no Loan Party has any Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and non-assessable and are owned by a Loan Party in the amounts
specified in Part (a) of Schedule 5.13 free and clear of all Liens other than
those permitted pursuant to Section 7.01. No Loan Party has any equity
Investments in any other Person other than (i) those specifically disclosed in
Part (b) of Schedule 5.13 and (ii) those Investments permitted by Section 7.02.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock and no
proceeds of any Borrowings or drawings under any Letter of Credit will be used
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940. Neither the making of any
Loan, nor the issuance (or deemed issuance) of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated by the Loan Documents, will
violate any provision of any such Act or any rule, regulation or order of the
SEC thereunder.
5.15 Disclosure. No written report, financial statement, certificate
or other information furnished by or on behalf of any Loan Party to any Agent or
any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or any other Loan Document
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits 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 provided by the Borrower or that is otherwise described on Schedule
5.15, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
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5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person, except where the failure to do so,
or for such conflicts that, could not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by any Loan Party or any
Subsidiary infringes upon any rights held by any other Person, except for such
infringements that could not reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any IP Rights is pending or, to the
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.18 Solvency. The Borrower and its Subsidiaries are, on a
consolidated basis, Solvent.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:
6.01 Financial Statements. Deliver to each Agent and each Lender, in
form and detail satisfactory to the Co-Administrative Agents and the Required
Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required
Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any "going
concern" or like qualification or exception or any qualification or
exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
such fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting
the financial condition, results of operations, shareholders' equity and
cash flows of the Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of
footnotes; and
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(c) as soon as available, but in any event no later than February 15th
of each year, forecasts prepared by management of the Borrower, in form
satisfactory to the Co-Administrative Agents, of consolidated balance
sheets, income statements and cash flow statements of the Borrower and its
Subsidiaries on a monthly basis for the fiscal year following such fiscal
year and on an annual basis for each fiscal year thereafter until the
Maturity Date for the Revolving Credit Facility.
As to any information contained in materials furnished pursuant to
Section 6.02(d), the Borrower shall not be separately required to furnish such
information under Section 6.01(a) or 6.01(b), but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in Sections 6.01(a) and 6.01(b) at the times specified
therein.
6.02 Certificates; Other Information. Deliver to each Agent and each
Lender, in form and detail satisfactory to the Co-Administrative Agents and the
Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status
of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and 6.01(b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower, and in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also provide,
if necessary for the determination of compliance with Section 7.11, a
statement of reconciliation conforming such financial statements to GAAP;
(c) promptly after any request by any Agent, copies of any detailed
audit reports, management letters or recommendations submitted to the board
of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books
of any Loan Party or any Subsidiary, or any audit of any of them;
(d) unless the same shall be publicly available, promptly after the
same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports
and registration statements which the Borrower may file or be required to
file with the SEC under Section 13 or 15(d) of the Securities Exchange Act
of 1934, or with any Governmental Authority that may be substituted
therefor, or with any national securities exchange, and in any case not
otherwise required to be delivered to the Agents pursuant hereto;
(e) promptly after the assertion or occurrence thereof, notice of any
Environmental Action against or of any noncompliance by any Loan Party or
any of its Subsidiaries with any Environmental Law or Environmental Permit
that could reasonably be expected to have a Material Adverse Effect; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of any Loan Party or any Subsidiary, or
compliance with the terms of the Loan Documents, as any Agent or any Lender
may from time to time reasonably request.
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Documents required to be delivered pursuant to Section 6.01(a), 6.01(b)
or 6.02(d) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and each Agent have
access (whether a commercial, third-party website or whether sponsored by the
Co-Administrative Agents); provided that: (i) the Borrower shall deliver paper
copies of such documents to any Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by such Agent or such Lender and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) each Agent and each Lender of the
posting of any such documents and provide to the Co-Administrative Agents by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 6.02(c) to each of the Agents and each of the Lenders. Except for such
Compliance Certificates, the Co-Administrative Agents shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
6.03 Notices. Promptly after a Responsible Officer has knowledge
thereof, notify each Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies, financial reporting
practices or fiscal year by the Borrower;
(e) of the (A) occurrence of any Disposition of property or assets for
which the Borrower is required to make a mandatory repayment pursuant to
Section 2.06(b)(i), (B) incurrence or issuance of any Indebtedness for which
the Borrower is required to make a mandatory repayment pursuant to Section
2.06(b)(ii) and (C) receipt of any Extraordinary Receipt for which the
Borrower is required to make a mandatory repayment pursuant to Section
2.06(b)(iii); and
(f) of any public announcement by ▇▇▇▇▇'▇ or S&P of any change in a
Debt Rating.
Each notice pursuant to subparts (a) through (e) of this Section 6.03
shall be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto.
6.04 Payment of Obligations. Pay and discharge as the same shall
become due and payable, all its material obligations and liabilities, including
(a) all tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary,
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(b) all lawful claims which, if unpaid, would by law become a Lien upon its
property not permitted pursuant to Section 7.01, and (c) all Indebtedness, as
and when due and payable unless the failure to so pay would not constitute an
Event of Default hereunder or would not be reasonably likely to cause a Material
Adverse Effect, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted,
except to the extent that the continued maintenance of such property is no
longer economically desirable as determined in good faith by the Borrower; (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain insurance with financially
sound and reputable insurance companies or maintain a self- insurance program,
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.08 Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 Books and Records. Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be.
6.10 Inspection Rights. Within five Business Days of delivery of the
notice referred to below, permit representatives and independent contractors of
each Agent and each Lender to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, all at the expense
of the Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists any Agent or
any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.
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6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i)
for working capital, Capital Expenditures and other lawful corporate purposes,
and (ii) to finance the Acquisition, in each case, not in contravention of any
Law or of any Loan Document.
6.12 Covenant to Guarantee Obligations. Upon (x) the request of any
Co-Administrative Agent following the occurrence and during the continuance of a
Default, or (y) the formation or acquisition of any new direct or indirect
Domestic Subsidiaries by any Loan Party, then the Borrower shall, in each case
at the Borrower's expense:
(i) in connection with the formation or acquisition of a Domestic
Subsidiary (other than (A) a special purpose entity established to
facilitate a securitization or other financing of accounts receivable or
other assets of any Loan Party otherwise permitted hereunder (the
"Receivables Subsidiary") or (B) PEL Technologies, LLC, but only so long
as (x) the Borrower directly or indirectly owns less than 100% of the Equity
Interests in PEL Technologies, LLC and (y) the fair market value of the
assets of PEL Technologies, LLC is less than $75,000,000), within 30 days
after such formation or acquisition, cause each such Domestic Subsidiary,
and cause each direct and indirect parent of such Domestic Subsidiary (if it
has not already done so), to duly execute and deliver to the
Co-Administrative Agents a guaranty or guaranty supplement, in form and
substance satisfactory to the Co- Administrative Agents, guaranteeing the
other Loan Parties' obligations under the Loan Documents,
(ii) within 60 days after such request, formation or acquisition,
deliver to the Co-Administrative Agents, upon the request of the
Co-Administrative Agents in their sole discretion, a signed copy of a
favorable opinion, addressed to the Agents and the other Lender Parties, of
counsel for the Loan Parties acceptable to the Co-Administrative Agents as
to the matters contained in clause (i) above, as to such guaranties and
guaranty supplements, being legal, valid and binding obligations of each
Loan Party party thereto enforceable in accordance with their terms;
provided, however, that, notwithstanding anything in any Loan Document to the
contrary, in no event will the stock or assets of any Foreign Subsidiary be
directly or indirectly pledged under any Loan Document, nor will any Foreign
Subsidiary be required to provide a guaranty or guaranty supplement under any
Loan Document.
6.13 Compliance with Environmental Laws. Comply, and cause all lessees
and other Persons operating or occupying its properties to comply, in all
material respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action to address any
Hazardous Materials on or under any of its properties, to the extent required by
applicable Environmental Laws; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
6.14 Further Assurances. Promptly upon request by any Agent, or any
Lender through any Co-Administrative Agent, (i) correct any material defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and (ii) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as any Agent, or any Lender through any Co-Administrative Agent, may
reasonably require from time to time in order to carry out more effectively the
purposes of the Loan Documents.
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6.15 High Grade Notes Documents. If at any time any covenant
(including, without limitation, any basket level) or any default (including,
without limitation, the Threshold Amount or any grace period) contained in any
High Grade Notes Document shall be more restrictive to the Borrower than the
comparable provision of Article VI, VII or VIII, then the Borrower shall, within
45 days thereafter, enter into such agreements, documents and instruments,
including without limitation an amendment to the Loan Documents, such that after
giving effect to such agreements, documents and instruments, such covenant or
event of default is no more restrictive to the Borrower than the comparable
provision of Article VI, VII or VIII.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired, or
authorize the filing under the Uniform Commercial Code of any jurisdiction a
financing statement that names the Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist any security agreement authorizing any
secured party thereunder to file such financing statement, or assign any
accounts or other right to receive income, other than the following:
(a) Liens existing on the Documentation Closing Date and on the
Funding Date that are listed on Schedule 5.08(b) and any renewals or
extensions thereof, provided that the property covered thereby is not
changed and the amount not increased or the direct or any contingent obligor
changed and any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(c)(B);
(b) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of the
applicable Person;
(d) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(e) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning restrictions, other restrictions
and other similar encumbrances affecting real property which, in the
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aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
applicable Person;
(g) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.01(h) or securing appeal or other surety
bonds related to such judgments;
(h) Liens securing Indebtedness permitted under Section 7.03(c)(E);
provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition and (iii)
with respect to capital leases, such Liens do not at any time extend to or
cover any assets other than the assets subject to such capital leases;
(i) Liens on or transfers of accounts receivable and contracts, and
instruments and other assets related thereto arising in connection with the
sale of such accounts receivable pursuant to Section 7.05(g);
(j) Liens securing Indebtedness permitted by Section 7.03(c)(H),
provided that such Liens existed prior to such Person becoming a Subsidiary
of the Borrower, were not created in anticipation thereof and do not extend
to any assets other than those of such Subsidiary; and
(k) other Liens securing Indebtedness outstanding in an aggregate
principal amount not to exceed $50,000,000.
7.02 Investments. Make or hold any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
Cash Equivalents;
(b) in addition to any such advances outstanding on the Documentation
Closing Date, advances to officers, directors and employees of the Borrower
and Subsidiaries made in the ordinary course of business for travel,
entertainment, relocation and analogous ordinary business purposes;
(c) (i) equity Investments of the Borrower in any Guarantor and
Investments of any Guarantor in the Borrower or in another Guarantor, (ii)
equity Investments of a Foreign Subsidiary in any other Subsidiary and (iii)
equity Investments of a Loan Party in the Receivables Subsidiary and
Investments of the Receivables Subsidiary in any Loan Party, in each case,
to the extent such Investments pursuant to this clause (iii) are limited
solely to the Receivables Subsidiary's acquisition of receivables and
related assets in connection with the Receivables Facility and for
activities incidental to such acquisitions and the Receivables Subsidiary's
status as a special purpose vehicle;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss;
(e) Guarantees permitted by Section 7.03;
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(f) Investments existing on the Documentation Closing Date and on the
Funding Date that are set forth on Schedule 7.02(f);
(g) Investments by the Borrower or any Subsidiary in Swap Contracts
permitted under Section 7.03(a)(A) or Section 7.03(c)(D);
(h) Investments consisting of intercompany debt permitted under
Section 7.03(a)(C), 7.03(b)(A), 7.03(c)(F) or 7.03(d)(A); and
(i) the purchase or other acquisition of all of the Equity Interests
in, or all or substantially all of the property and assets of, any Person
that, upon the consummation thereof, will be wholly owned directly by the
Borrower or one or more of its wholly owned Subsidiaries (including, without
limitation, as a result of a merger or consolidation); provided that, with
respect to each purchase or other acquisition made pursuant to this Section
7.02(i):
(A) any such newly created or acquired Subsidiary shall comply
with the requirements of Sections 6.12;
(B) the lines of business of the Person to be (or the property
and assets of which are to be) so purchased or otherwise acquired shall
not be substantially different than the lines of business currently
conducted by the Borrower and its Subsidiaries or any business
substantially related or incidental thereto;
(C) the total cash and noncash consideration (including, without
limitation, all indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and assets and reserves
for liabilities with respect thereto and all assumptions of debt,
liabilities and other obligations in connection therewith, but
specifically excluding (x) the fair market value of all Equity
Interests issued or transferred to the sellers thereof, (y) the Net
Cash Proceeds from the issuance of any Equity Interests of the Borrower
on or after the Funding Date, and (z) the Net Cash Proceeds from the
Disposition of any assets or property by the Borrower or any Subsidiary
on or after the Funding Date, which Net Cash Proceeds are not required
to be used to prepay Loans pursuant to Section 2.05(b)) paid by or on
behalf of the Borrower and its Subsidiaries for any such purchase or
other acquisition, when aggregated with the total cash and noncash
consideration paid by or on behalf of the Borrower and its Subsidiaries
for all other purchases and other acquisitions made by the Borrower and
its Subsidiaries pursuant to this Section 7.02(i), shall not exceed (I)
if, after giving effect to such purchase or other acquisition, the
Borrower has a Debt Rating of BBB- by S&P and Baa3 by ▇▇▇▇▇'▇,
$200,000,000 in any fiscal year, and (II) if, after giving effect to
such purchase or other acquisition, the Borrower has a Debt Rating of
less than BBB- by S&P or less than Baa3 by ▇▇▇▇▇'▇, $75,000,000 in any
fiscal year, it being understood that the aggregate consideration
limits in this clause (C) shall not be applicable if, after giving
effect to such purchase or other acquisition, the Borrower has a Debt
Rating of at least BBB by S&P and at least Baa2 by ▇▇▇▇▇'▇;
(D) (1) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after giving effect to
such purchase or other acquisition, the Borrower and its Subsidiaries
shall be in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of the
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financial information most recently delivered to the Agents and the
Lenders pursuant to Section 6.01(a) or 6.01(b) as though such purchase
or other acquisition had been consummated as of the first day of the
fiscal period covered thereby; and
(E) if the acquisition involves consideration in excess of
$5,000,000, the Borrower shall have delivered to the Co-Administrative
Agents, on behalf of the Lenders, at least five Business Days prior to
the date on which any such purchase or other acquisition is to be
consummated, a certificate of a Responsible Officer, in form and
substance reasonably satisfactory to the Co-Administrative Agents,
certifying that all of the requirements set forth in this Section
7.02(i) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition;
(j) Investments by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.02 in Foreign Subsidiaries in an amount not
to exceed the Adjusted Foreign Subsidiaries/Joint Venture Basket at the time
of such Investment; provided that immediately before and immediately after
giving pro forma effect to any such Investment, no Event of Default or
Default under Section 8.01(a), (f) or (g) shall have occurred and be
continuing and (2) immediately after giving effect to such Investment, the
Borrower and its Subsidiaries shall be in pro forma compliance with all of
the covenants set forth in Section 7.11, such compliance to be determined on
the basis of the financial information most recently delivered to the Agents
and the Lenders pursuant to Section 6.01(a) or 6.01(b) as though such
Investment had been consummated as of the first day of the fiscal period
covered thereby;
(k) Investments by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.02 in joint ventures in an amount not to
exceed the Adjusted Foreign Subsidiaries/Joint Venture Basket at the time of
such Investment; provided that immediately before and immediately after
giving pro forma effect to any such Investment, no Default shall have
occurred and be continuing and (2) immediately after giving effect to such
Investment, the Borrower and its Subsidiaries shall be in pro forma
compliance with all of the covenants set forth in Section 7.11, such
compliance to be determined on the basis of the financial information most
recently delivered to the Agents and the Lenders pursuant to Section 6.01(a)
or 6.01(b) as though such Investment had been consummated as of the first
day of the fiscal period covered thereby; and
(l) other Investments not exceeding $25,000,000 in the aggregate in
any fiscal year of the Borrower.
7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) in the case of the Borrower,
(A) Indebtedness in respect of Swap Contracts designed to hedge
against fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and consistent with prudent
business practice,
(B) Indebtedness evidenced by the High Grade Notes,
(C) Indebtedness owed to a wholly-owned Subsidiary, which
Indebtedness shall be unsecured and subordinated on terms acceptable to
the Co-Administrative Agents, and
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(D) unsecured Indebtedness owed to a Person other than a wholly-
owned Subsidiary;
(b) in the case of the Guarantors,
(A) Indebtedness owed to the Borrower or a wholly-owned
Subsidiary, which Indebtedness shall be unsecured and subordinated on
terms acceptable to the Co-Administrative Agents, and
(B) unsecured Indebtedness owed to a Person other than the
Borrower or a wholly-owned Subsidiary;
(c) in the case of the Borrower and its Subsidiaries,
(A) Indebtedness under the Loan Documents;
(B) Indebtedness outstanding on the Documentation Closing Date
and on the Funding Date that are listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and
by an amount equal to any existing commitments unutilized thereunder,
and the direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such refinancing, refunding,
renewal or extension, unless such obligor is a Foreign Subsidiary, in
which case the obligor under such refinanced, refunded, renewed or
extended Indebtedness may be another Foreign Subsidiary; provided still
further that the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such extending, refunding or
refinancing Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lenders than the terms of
any agreement or instrument governing the Indebtedness being extended,
refunded or refinanced and the interest rate applicable to any such
extending, refunding or refinancing Indebtedness does not exceed the
then applicable market interest rate;
(C) Guarantees of the Borrower or any Guarantor (I) in respect of
Indebtedness (other than intercompany Indebtedness) otherwise permitted
hereunder of the Borrower or any other Guarantor, and (II) in respect
of Indebtedness (other than intercompany Indebtedness) otherwise
permitted hereunder of a Foreign Subsidiary (x) if such Foreign
Subsidiary was acquired in connection with the Acquisition and to the
extent such Indebtedness was guaranteed by IR or any of its Affiliates,
or (y) if such Indebtedness was assumed by such Foreign Subsidiary from
another Foreign Subsidiary and to the extent such Indebtedness was
guaranteed by the Borrower or any Guarantor;
(D) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that
(i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of
69
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(E) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets
within the limitations set forth in Section 7.01(h);
(F) (i) Indebtedness incurred in connection with the sale of
accounts receivable and related assets pursuant to Section 7.05(g) so
long as the amount of the facility relating thereto does not exceed
$125,000,000 at any time and (ii) Indebtedness of the Receivables
Subsidiary to a Loan Party incurred in connection with the Receivables
Facility for the purchase of accounts receivable and related assets;
(G) secured Indebtedness so long as the amount thereof is within
the limitations set forth in Section 7.01(k); and
(H) Indebtedness of a Person that becomes a Subsidiary of the
Borrower as the result of an Investment permitted by Section 7.02(i),
provided that such Indebtedness existed at the time such Person became
a Subsidiary of the Borrower, and such Indebtedness was not created in
anticipation thereof; and
(d) in the case of Foreign Subsidiaries,
(A) Indebtedness owed to a Loan Party or to another Foreign
Subsidiary that is otherwise permitted to be made by such Loan Party
under Section 7.02(j); and
(B) unsecured Indebtedness in an amount not to exceed the
Adjusted Foreign Subsidiaries/Joint Venture Basket at the time of the
incurrence of such Indebtedness.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries, provided that when any Guarantor is merging with
another Subsidiary, the Guarantor shall be the continuing or surviving
Person or the continuing or surviving Person shall promptly thereafter
become a Guarantor;
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to
another Subsidiary; provided that if the transferor in such a transaction is
a Guarantor, then the transferee must either be the Borrower or a Guarantor
or the transferee shall promptly thereafter become a Guarantor; and
(c) in connection with any acquisition permitted under Section 7.02,
any Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it;
provided that the Person surviving such merger shall be a wholly owned
Subsidiary of the Borrower; provided, however, that i n each case,
immediately after giving effect thereto, in the case of any such merger to
which the Borrower is a party, the Borrower is the surviving corporation.
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7.05 Dispositions. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is
a Guarantor, the transferee thereof must either be the Borrower or a
Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition,
(ii) immediately after giving effect to such Disposition, the Borrower and
its Subsidiaries are in pro forma compliance with all of the covenants set
forth in Section 7.11, such compliance to be determined on the basis of the
financial information most recently delivered to the Agents and the Lenders
pursuant to Section 6.01(a) or 6.01(b) as though such Disposition had been
consummated as of the first day of the fiscal period covered thereby and
(iii) until the Term Loan has been repaid in full, the purchase price for
such asset to be paid to the Borrower or such Subsidiary is at least 80%
cash;
(g) the limited recourse sale of accounts receivable and related
assets in connection with the securitization of accounts receivable or
similar rights to payment, which sale is non-recourse to the extent
customary in securitizations and consistent with past practice and which is,
to the extent entered into after the Documentation Closing Date, upon terms
and conditions reasonably satisfactory to the Co-Administrative Agents (the
"Receivables Facility");
(h) Dispositions of cash or Cash Equivalents for purposes not
otherwise prohibited under this Agreement or under any other Loan Document;
(i) so long as no Default shall occur and be continuing, the grant of
any option or other right to purchase any asset in a transaction that would
be permitted under the provisions of Section 7.05(f); and
(j) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05 of property acquired pursuant to the
Acquisition; provided that (i) at the time of such Disposition, no Default
shall exist or would result from such Disposition, (ii) immediately after
giving effect to such Disposition, the Borrower and its Subsidiaries are in
pro forma compliance with all of the covenants set forth in Section 7.11,
such compliance to be determined on the basis of the financial information
71
most recently delivered to the Agents and the Lenders pursuant to Section
6.01(a) or 6.01(b) as though such Disposition had been consummated as of the
first day of the fiscal period covered thereby and (iii) until the Term Loan
has been repaid in full, the purchase price for such asset to be paid to the
Borrower or such Subsidiary is at least 80% cash; provided, however, that
any Disposition pursuant to Section 7.05(a) through Section 7.05(h) or
Section 7.05(j) shall be for fair market value.
7.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or, except with respect to the Borrower, issue or sell any Equity Interests to
any Person other than the Borrower or a wholly owned Domestic Subsidiary or
accept any capital contributions, except that:
(a) each Subsidiary may make Restricted Payments to the Borrower and
to wholly-owned Subsidiaries (and, in the case of a Restricted Payment by a
non-wholly-owned Subsidiary, to the Borrower and any Subsidiary and to each
other owner of capital stock or other Equity Interests of such Subsidiary on
a pro rata basis based on their relative ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock or other common Equity Interests with the
proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests;
(d) so long as no Default shall then exist or would result therefrom,
the Borrower may (i) declare or pay cash dividends to its stockholders and
(ii) purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash, in an
aggregate amount for all such purchases, redemptions and other acquisitions
made under this clause (ii) on and after the date hereof not to exceed
$20,000,000 in any fiscal year; and
(e) so long as no Default shall then exist or would result therefrom,
the Borrower may acquire common stock of the Borrower from employees or
former employees of the Borrower or any Subsidiary in consideration for the
exercise of stock options by such employees or former employees and any tax
obligations incurred by such employees or former employees in connection
with such exercise; provided that no such exercise shall cause the Borrower
to make any cash payment to such employee or former employee or any other
Person; provided further that the fair market value of all such common stock
acquired by the Borrower shall not exceed $10,000,000 in any fiscal year.
7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.08 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of the Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
72
Person other than an Affiliate, except (i) transactions between or among the
Borrower and its Subsidiaries in the ordinary course of business, (ii) the
transactions identified on Schedule 7.08 and (iii) transactions relating to the
Receivables Facility.
7.09 Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement, any other Loan Document or
any agreement relating to the Receivables Facility) that (a) limits the ability
(i) of any Subsidiary to make Restricted Payments to the Borrower or any
Guarantor or to otherwise transfer property to or invest in the Borrower or any
Guarantor, except for any agreement in effect (A) on the date hereof or (B) at
the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such
agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the Indebtedness
of the Borrower, except for any document set forth on Schedule 7.09, or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; provided, however, that this clause (iii) shall not
prohibit (x) any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(c)(E) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness, (y) any provision contained in any High Grade Notes Document (or
any other document listed on Schedule 7.09) that provides that in the event any
Loan Party grants any Lien on such Loan Party's assets or properties to secure
any Indebtedness, such Loan Party secure the High Grade Notes (or Indebtedness
in respect of such other document) on an equal and ratable basis with such
Indebtedness, or (z) any negative pledge provision contained in any document
listed on Schedule 7.09; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person, other than any provision contained in any High Grade Notes Document
(or any other document listed on Schedule 7.09) that provides that in the event
any Loan Party grants any Lien on such Loan Party's assets or properties to
secure any Indebtedness, such Loan Party secure the High Grade Notes (or
Indebtedness in respect of such other document) on an equal and ratable basis
with such Indebtedness.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund Indebtedness originally incurred for such
purpose in any manner that would violate Regulation T, U, or X of the FRB.
7.11 Financial Covenants.
(a) Consolidated Net Worth. Permit, at any time on or after June 30,
2003, Consolidated Net Worth at any time to be less than the sum of (a) 80% of
the sum of (i) Shareholders' Equity as of December 31, 2002, (ii) the aggregate
increase in Shareholders' Equity of the Borrower and its Subsidiaries as a
result of the IR Equity Issuance, and (iii) the aggregate increase in
Shareholders' Equity of the Borrower and its Subsidiaries as a result of the
Public Equity Issuance, (b) an amount equal to 50% of the Consolidated Net
Income earned in each fiscal quarter ending after the Documentation Closing
Date, beginning with the fiscal quarter ending March 31, 2003 (with no deduction
for a net loss in any such fiscal quarter) and (c) an amount equal to 50% of the
aggregate increases in Shareholders' Equity of the Borrower and its Subsidiaries
after the Funding Date by reason of the issuance and sale of capital stock or
other Equity Interests of the Borrower or any Subsidiary, including upon any
conversion of debt securities of the Borrower into such capital stock or other
Equity Interests.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio at any time during any period of four fiscal quarters of the Borrower set
forth below to be greater than the ratio set forth below opposite such period:
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Maximum
Consolidated
Period Leverage Ratio
June 30, 2003 through December 31, 2003 3.25:1
January 1, 2004 through September 30, 2004 3.00:1
October 1, 2004 and thereafter 2.75:1
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio at any time to be less than the ratio set forth
below for each period set forth below:
Minimum
Fixed
Charge
Period Coverage Ratio
June 30, 2003 through December 31, 2003 1.50:1
January 1, 2004 through September 30, 2004 1.75:1
October 1, 2004 and thereafter 2.00:1
7.12 Amendments of Organization Documents. With respect to any Loan
Party, amend any of its Organization Documents in a manner that could reasonably
be expected to have a Material Adverse Effect.
7.13 Prepayments, Etc., of Indebtedness. At any time that any Term
Loans or any Term Commitments are outstanding, prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Indebtedness in
an original principal amount greater than $20,000,000 that is pari passu with,
or subordinated to, the Loans, except (a) the prepayment of the Credit
Extensions in accordance with the terms of this Agreement and (b) regularly
scheduled or required repayments or redemptions of Indebtedness listed on
Schedule 7.03, or amend, modify or change in any manner any term or condition of
any such Indebtedness listed on Schedule 7.03.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan or any L/C Obligation,
or (ii) within three Business Days after the same becomes due, any interest
on any Loan or on any L/C Obligation, or any commitment or other fee due
hereunder; or
(b) Specific Covenants. The Borrower fails to perform or observe any
term, covenant or agreement contained in (i) any of Section 6.03, 6.05, 6.11
or 6.12, or Article VII or (ii) any of Section 6.01(a) or (b) or 6.02(a) or
(b) and such failure continues for 10 days after the earlier of the date on
which (i) a Responsible Officer of the Borrower has knowledge of such
failure or (ii) notice is given from the Paying Agent to the Borrower at the
request of the Required Lenders that the Borrower is to remedy the same; or
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(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in Section 8.01(a) or 8.01(b))
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days after the earlier of the date on which
(i) a Responsible Officer of the Borrower has knowledge of such failure or
(ii) notice is given from the Paying Agent to the Borrower at the request of
the Required Lenders that the Borrower is to remedy the same; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document, or
in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than the Threshold Amount, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other
event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an
Early Termination Date (as defined in such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which the Borrower or
any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or
(B) any Termination Event (as defined in such Swap Contract) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected Party (as
defined in such Swap Contract) and, in either event, the Swap Termination
Value owed by the Loan Party or such Subsidiary as a result thereof is
greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Material
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for
60 calendar days, or an order for relief is entered in any such proceeding;
or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of
its Material Subsidiaries becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within 30 days after its issue or
levy; or
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(h) Judgments. There is entered against any Loan Party or any Material
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount, or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, there is a period of 45 consecutive days during which the same
shall not have been paid, discharged, vacated or stayed, by reason of a
pending appeal or otherwise; or
(i) ERISA. Except as is not reasonably expected to result in a
Material Adverse Effect: (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or is reasonably expected to
result in liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document,
at any time after its execution and delivery and for any reason other than
as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect; or any Loan
Party or any other Person contests in any manner the validity or
enforceability of any provision of any Loan Document; or any Loan Party
denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 Remedies upon Event of Default
. If any Event of Default occurs and is continuing, the
Co-Administrative Agents shall, at the request of, or may, with the consent of,
the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the Appropriate L/C Issuers to make L/C Credit Extensions to
be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of themselves, the other Agents and the Lenders
all rights and remedies available to them, the other Agents and the Lenders
under the Loan Documents or applicable Law;
provided, however, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any
obligation of each Appropriate L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
76
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of any Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Paying Agent in
the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Agents in their capacities
as such ratably among them in proportion to the amounts described in this
clause First payable to them;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Fourth held
by them;
Fifth, to the Paying Agent for the account of the Appropriate L/C
Issuers, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit;
Sixth, to the payment of all other Obligations of the Loan Parties
owing under or in respect of the Loan Documents that are due and payable to
the Agents and the Lenders on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Agents and the
Lenders on such date; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE IX
AGENTS
9.01 Appointment and Authorization of Agents .
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(a) Each Lender hereby irrevocably appoints, designates and authorizes
each Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Loan Document, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall any Agent
have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" herein and in the other
Loan Documents with reference to any Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Each Appropriate L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued (or deemed issued) by such Appropriate
L/C Issuer and the documents associated therewith, and such Appropriate L/C
Issuer shall have all of the benefits and immunities (i) provided to the Agents
in this Article IX with respect to any acts taken or omissions suffered by such
Appropriate L/C Issuer in connection with Letters of Credit issued (or deemed
issued) by it or proposed to be issued (or deemed issued) by it and the
applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term "Agent" as used in this Article IX and in the
definition of "Agent-Related Person" included such Appropriate L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided herein with
respect to such Appropriate L/C Issuer.
9.02 Delegation of Duties. Any Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. No
Agent shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
9.03 Liability of Agents. No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by any
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
9.04 Reliance by Agents.
(a) Each Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
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other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by such Agent. Each Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Co- Administrative Agents
shall have received notice from such Lender prior to the proposed Documentation
Closing Date specifying its objection thereto.
9.05 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Paying Agent
for the account of the Lenders, unless such Agent shall have received written
notice from a Lender or the Borrower referring to this Agreement, describing
such Default and stating that such notice is a "notice of default." The
applicable Agent will notify the Lenders of its receipt of any such notice. The
Co-Administrative Agents shall take such action with respect to such Default as
may be directed by the Required Lenders in accordance with Article VIII;
provided, however, that unless and until the Co-Administrative Agents have
received any such direction, the Co-Administrative Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as they shall deem advisable or in the best interest of the
Lenders.
9.06 Credit Decision; Disclosure of Information by Agents. Each Lender
acknowledges that no Agent- Related Person has made any representation or
warranty to it, and that no act by any Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party or any Affiliate thereof, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender as to any matter,
including whether Agent-Related Persons have disclosed material information in
their possession. Each Lender represents to each Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance
upon any Agent- Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by any Agent herein, such Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
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and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
9.07 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent- Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such Agent-
Related Person's own gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 9.07. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender
shall reimburse each Agent upon demand for its ratable share of any costs or
out-of- pocket expenses (including Attorney Costs) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that such Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking
in this Section 9.07 shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of such Agent.
9.08 Agents in Their Individual Capacities. Each of Bank of America,
BAS, Key Bank, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and their respective Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire Equity Interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Loan Parties
and their respective Affiliates as though (i) Bank of America were not a Co-
Administrative Agent, (ii) BAS were not a Lead Arranger, (iii) KeyBank were not
a Co-Administrative Agent, a Lead Arranger, the Paying Agent or an Appropriate
L/C Issuer, (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇ were not the Syndication Agent, and (v) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ were not the Documentation Agent, and without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities, each of
Bank of America, BAS, Key Bank, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or their
respective Affiliates may receive information regarding any Loan Party or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge that
no Agent shall be under any obligation to provide such information to them.
With respect to its Loans, each of Bank of America, BAS, Key Bank, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and their respective Affiliates shall have the same rights
and powers under this Agreement as any other Lender and may exercise such rights
and powers as though it were not an Agent or an Appropriate L/C Issuer, as the
case may be, and the terms "Lender" and "Lenders" include Bank of America, BAS,
Key Bank, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and their respective Affiliates in their
individual capacities.
9.09 Successor Agents. Any Agent may resign as Agent upon 30 days'
notice to the Lenders; provided that any such resignation by KeyBank shall also
constitute its resignation as an Appropriate L/C Issuer and Swing Line Lender.
If any Agent resigns under this Agreement, the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor agent is appointed prior to
the effective date of the resignation of such Agent, such Agent may appoint,
after consulting with the Lenders and the Borrower, a successor agent from among
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the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, the Person acting as such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and, if applicable, an
Appropriate L/C Issuer and Swing Line Lender and the respective terms "Co-
Administrative Agent", "Paying Agent", "Documentation Agent", "Syndication
Agent", "Lead Arranger", "Appropriate L/C Issuer" and "Swing Line Lender", as
applicable, shall mean such successor agent, Letter of Credit issuer and swing
line lender, the retiring Agent's appointment, powers and duties as Agent shall
be terminated and the retiring Appropriate L/C Issuer's and Swing Line Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring Appropriate L/C Issuer or Swing
Line Lender or any other Lender, other than the obligation of the successor
Appropriate L/C Issuer to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring Appropriate L/C Issuer to
effectively assume the obligations of the retiring Appropriate L/C Issuer with
respect to such Letters of Credit. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was an Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of such Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Upon the acceptance of any
appointment as Agent hereunder by a successor, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Agent's resignation hereunder as an Agent, the provisions of this
Article IX 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 an Agent.
9.10 Co-Administrative Agents May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Co-Administrative Agents
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Co- Administrative Agents shall have made any demand
on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Agents (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Agents and their respective agents and counsel and all other amounts due the
Lenders and the Agents under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to the Paying Agent and, in the
event that the Paying Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Paying Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agents and
their respective agents and counsel, and any other amounts due the Agents under
Sections 2.09 and 10.04.
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Nothing contained herein shall be deemed to authorize the
Co-Administrative Agents to authorize or consent to or accept or adopt on behalf
of any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the Co-
Administrative Agents to vote in respect of the claim of any Lender in any such
proceeding.
9.11 Guaranty Matters. The Lenders irrevocably authorize the Co-
Administrative Agents, at their option and in their discretion, to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Co-Administrative Agents at any time, the Required
Lenders will confirm in writing the Co- Administrative Agents' authority to
release any Guarantor from its obligations under the Guaranties pursuant to this
Section 9.11. In each case as specified in this Section 9.11, the Co-
Administrative Agents will, at the Borrower's expense, execute and deliver to
the applicable Loan Party such documents as such Loan Party may reasonably
request to release such Guarantor from its obligations under the Guaranty in
accordance with the terms of the Loan Documents and this Section 9.11.
9.12 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co- arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Lead Arrangers, the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(b) postpone any date scheduled for any payment of principal or
interest under Section 2.07 or 2.08, or any date fixed for the payment of
fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default
Rate" or to waive any obligation of the Borrower to pay interest at the
Default Rate;
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(d) change the order of application of any reduction in the
Commitments or any prepayment of Loans between the Facilities from the
application thereof set forth in the applicable provisions of Section
2.05(b) or 2.06(b), respectively, in any manner that materially and
adversely affects the Lenders under such Facilities or requires the
permanent reduction of the Revolving Credit Facility at any time when all or
a portion of the Term Facilities remains in effect without the written
consent of each such Lender directly affected thereby;
(e) change any provision of this Section 10.01 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(f) release all or substantially all of the value of the Guaranty,
without the written consent of each Lender;
(g) impose any greater restriction on the ability of any Lender to
assign any of its rights or obligations hereunder, without such amendment,
waiver or consent receiving the written consent of Lenders having more than
50% of the Aggregate Credit Exposures then in effect within each of the
following classes of Commitments, Loans and other Credit Extensions: (i) the
class consisting of the Revolving Credit Commitment, and (ii) the class
consisting of the Term Commitment. For purposes of this clause, the
aggregate amount of each Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans shall be deemed to be
held by such Lender; or
(h) amend Section 2.13 or 8.03, without the written consent of each
Lender directly affected thereby;
and provided further that (i) no amendment, waiver or consent shall,
unless in writing and signed by an Appropriate L/C Issuer in addition to the
Lenders required above, affect the rights or duties of such Appropriate L/C
Issuer under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued, deemed issued, or to be issued by such Appropriate L/C
Issuer; (ii) no amendment, waiver or consent shall, unless in writing and signed
by the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by an Agent in
addition to the Lenders required above, affect the rights or duties of, or any
fees or other amounts payable to, such Agent under this Agreement or any other
Loan Document; (iv) Section 10.07(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (v) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder or in any other Loan Document
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to Section 10.02(c)) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
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(i) if to the Borrower, any Agent, any Appropriate L/C Issuer or the
Swing Line Lender, to the address, facsimile number, electronic mail address
or telephone number specified for such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone number
as shall be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice
to the Borrower, the Agents, the Appropriate L/C Issuers and the Swing Line
Lender.
All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of Section
10.02(c)), when delivered; provided, however, that notices and other
communications to the Agents, the Appropriate L/C Issuers and the Swing Line
Lender pursuant to Article II shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually- signed originals and shall be binding on all
Loan Parties, the Agents and the Lenders. The Agents may also require that any
such documents and signatures be confirmed by a manually- signed original
thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Agents and Lenders. The Agents and the Lenders shall
be entitled to rely and act upon any notices (including telephonic Committed
Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to
and other communications with any Agent may be recorded by such Agent, and each
of the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender or any
Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder or any other Loan Document shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
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remedies, powers and privileges herein provided, and provided under each other
Loan Document, are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse each Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation, syndication and
execution of this Agreement and the other Loan Documents, and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs incurred by such
Agents, and (b) to pay or reimburse each Agent and each Lender for all
reasonable costs and expenses incurred in connection with the enforcement of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs incurred
by each Agent and each Lender. The foregoing costs and expenses shall include
all search, filing, recording, title insurance and appraisal charges and fees
and taxes related thereto, and other out-of-pocket expenses incurred by the
Co-Administrative Agents and the cost of independent public accountants and
other outside experts retained by the Co-Administrative Agents or any Lender.
All amounts due under this Section 10.04 shall be payable within 30 days after
demand therefor, which demand shall be accompanied by an appropriate invoice.
The agreements in this Section 10.04 shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations. If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it
hereunder or under any Loan Document, including, without limitation, Attorney
Costs and indemnities, such amount may be paid on behalf of such Loan Party by
any Agent or any Lender, in its sole discretion.
10.05 Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold
harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by any Appropriate L/C Issuer to honor a demand for
payment under a Letter of Credit issued (or deemed issued) by such Appropriate
L/C Issuer if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
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information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Documentation Closing Date). In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 10.05 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnitee or any other Person, whether or not any Indemnitee is
otherwise a party thereto and whether or not any of the transactions
contemplated hereunder or under any of the other Loan Documents is consummated.
All amounts due under this Section 10.05 shall be payable within 30 days after
demand therefor, which demand shall be accompanied by an appropriate invoice.
The agreements in this Section 10.05 shall survive the resignation of any Agent,
the replacement of any Lender, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.
10.06 Payments Set Aside. To the extent that any payment by or on
behalf of the Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Paying Agent upon demand its applicable share of
any amount so recovered from or repaid by any Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
10.07 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, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.07(b), (ii) by way of participation in accordance with
the provisions of Section 10.07(d), (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 10.07(f) or 10.07(i),
or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
Section 10.07(d) and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this
Section 10.07(b), participations in L/C Obligations and in Swing Line Loans) at
the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loan of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Paying Agent or, if "Trade
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Date" is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $10,000,000, in the case of any assignment in respect of the
Revolving Credit Facility, or $2,500,000, in the case of any assignment in
respect of the Term Facility, unless each of the Paying Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, except that this clause (ii) shall not
(x) apply to rights in respect of Swing Line Loans or (y) prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
Facilities on a non- pro rata basis; (iii) any assignment of a Revolving Credit
Commitment must be approved by the Paying Agent, each Appropriate L/C Issuer and
the Swing Line Lender unless the Person that is the proposed assignee is itself
a Revolving Credit Lender, which approval shall not be unreasonably withheld or
denied (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Paying Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Paying Agent pursuant to Section 10.07(c), from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, the Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 10.07(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 Section 10.07(d).
(c) The Paying Agent,acting solely for this purpose as an agent of the
Borrower, shall maintain at the Paying Agent's Office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of
the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Agents and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, any
Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Paying Agent, sell participations to any Person (other than
a natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Agents 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
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amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to Section
10.07(e), the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.07(b).
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
10.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Paying Agent, (ii) in the case of any assignment of a
Revolving Credit Commitment, each Appropriate L/C Issuer and the Swing Line
Lender, and (iii) unless an Event of Default has occurred and is continuing,
the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, "Eligible Assignee"
shall not include the Borrower or any of the Borrower's Affiliates or
Subsidiaries or any Person if a payment hereunder to such Person would be
subject to withholding under the Code, as the Code is in effect on the date
on which such Person is proposed to become a Lender hereunder.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Paying Agent and the Borrower (an "SPC") the option to provide all or any part
of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. Each party hereto hereby agrees that (i) neither the grant to any SPC
nor the exercise by any SPC of such option shall increase the costs or expenses
or otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
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liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the Laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Paying Agent and with the payment
of a processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, if at
any time KeyBank assigns all of its Commitments and Loans pursuant to Section
10.07(b), KeyBank may, upon 30 days' notice to the Borrower and the Lenders,
resign as an Appropriate L/C Issuer and as Swing Line Lender. In the event of
any such resignation as an Appropriate L/C Issuer or Swing Line Lender, the
Borrower shall be entitled to appoint from among the Lenders a successor
Appropriate L/C Issuer or Swing Line Lender hereunder; provided, however, that
no failure by the Borrower to appoint any such successor shall affect the
resignation of KeyBank as Swing Line Lender; provided further, however, that
KeyBank shall not be released from its obligations as an Appropriate L/C Issuer
hereunder unless and until another Lender assumes all such obligations. If
KeyBank resigns as an Appropriate L/C Issuer, it shall retain all the rights and
obligations of such Appropriate L/C Issuer hereunder with respect to all Letters
of Credit issued by it and outstanding as of the effective date of its
resignation as an Appropriate L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If KeyBank resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
10.08 Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information, 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
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hereunder; (f) to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section 10.08 or (ii) becomes
available to any Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; (i) to any state, Federal or foreign authority or
examiner (including the National Association of Insurance Commissioners or any
other similar organization) regulating any Lender; or (j) to any rating agency
when required by it (it being understood that, prior to any such disclosure,
such rating agency shall undertake to preserve the confidentiality of any
Information relating to the Loan Parties received by it from such Lender). In
addition, the Agents and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Agents and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions. For the purposes of this Section 10.08, "Information" means all
information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is available to any Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party. Any
Person required to maintain the confidentiality of Information as provided in
this Section 10.08 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.
10.09 Setoff. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender and each of their respective Affiliates is authorized at
any time and from time to time, without prior notice to the Borrower or any
other Loan Party, any such notice being waived by the Borrower (on its own
behalf and on behalf of each Loan Party) 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 by, and other Indebtedness at any time
owing by, such Lender to or for the credit or the account of the respective Loan
Parties against any and all Obligations owing to such Lender hereunder or under
any other Loan Document, now or hereafter existing, irrespective of whether or
not such Agent or such Lender shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be contingent or unmatured
or denominated in a currency different from that of the applicable deposit or
Indebtedness. Each Lender agrees promptly to notify the Borrower and the Paying
Agent after any such setoff and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Agent and each Lender and their
respective Affiliates under this Section 10.09 are in addition to other rights
and remedies (including, without limitation, other rights of setoff) that such
Agent, such Lender and their respective Affiliates may have.
10.10 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non- usurious
interest permitted by applicable Law (the "Maximum Rate"). If any Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by an Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
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10.11 Counterparts. This Agreement and each other Loan Document may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement and each other Loan Document shall be effective as delivery of an
original executed counterpart of this Agreement and such other Loan Document.
The Co-Administrative Agents may also require that any such documents and
signatures delivered by telecopier be confirmed by a manually-signed original
thereof; provided that the failure to request or deliver the same shall not
limit the effectiveness of any document or signature delivered by telecopier.
10.12 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Agents or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any Lender
or on their behalf and notwithstanding that any Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.14 Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 Tax Forms. (a) (i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Paying Agent, prior to receipt of any payment
subject to withholding under the Code (or upon accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Paying Agent that such Foreign
Lender is entitled to an exemption from, or reduction of, U.S. withholding tax,
including any exemption pursuant to Section 881(c) of the Code. Thereafter and
from time to time, each such Foreign Lender shall (A) promptly submit to the
Paying Agent such additional duly completed and signed copies of one of such
forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Paying Agent of any available exemption
from or reduction of, United States withholding taxes in respect of all payments
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to be made to such Foreign Lender by the Borrower pursuant to this Agreement,
(B) promptly notify the Paying Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-
designation of its Lending Office) to avoid any requirement of applicable Laws
that the Borrower make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or payable
to such Lender under any of the Loan Documents (for example, in the case of a
typical participation by such Lender), shall deliver to the Paying Agent on the
date when such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Paying Agent (in the reasonable exercise
of its discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional amount
to any Foreign Lender under Section 3.01 (A) with respect to any Taxes required
to be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this Section 10.15(a) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section 10.15(a) shall
relieve the Borrower of its obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any change in any applicable Law, treaty
or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Paying Agent may, without reduction, withhold any Taxes
required to be deducted and withheld from any payment under any of the Loan
Documents with respect to which the Borrower is not required to pay additional
amounts under this Section 10.15(a).
(b) Upon the request of the Paying Agent, each Lender that is a "United
States person" within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Paying Agent two duly signed completed copies of IRS Form W-9.
If such Lender fails to deliver such forms, then the Paying Agent may withhold
from any interest payment to such Lender an amount equivalent to the applicable
back-up withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Paying Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Paying Agent therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the Paying Agent
under this Section 10.15, and costs and expenses (including Attorney Costs) of
the Paying Agent. The obligation of the Lenders under this Section 10.15 shall
survive the termination of the Aggregate Commitments, repayment of all other
Obligations hereunder and the resignation of the Paying Agent.
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10.16 Replacement of Lenders. Under any circumstances set forth herein
providing that the Borrower shall have the right to replace a Lender as a party
to this Agreement, the Borrower may, upon notice to such Lender and the Paying
Agent, replace such Lender by causing such Lender to assign its Commitment (with
the assignment fee to be paid by the Borrower in such instance) pursuant to
Section 10.07(b) to one or more other Lenders or Eligible Assignees procured by
the Borrower; provided, however, that if the Borrower elects to exercise such
right with respect to any Lender pursuant to Section 3.06(b), it shall be
obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in
full all principal, accrued interest, accrued fees and other amounts owing to
such Lender through the date of replacement (including any amounts payable
pursuant to Section 3.05), (y) provide appropriate assurances and indemnities
(which may include letters of credit) to the Appropriate L/C Issuers and the
Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing
Line Loans then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver
an Assignment and Assumption with respect to such Lender's Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.
10.17 Judgment.
(a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures Bank of America could purchase Dollars with such other
currency at Bank of America's principal office in London at 5:00 p.m. on the
Business Day preceding that on which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Committed Currency into Dollars,
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the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures Bank of America could purchase such Committed Currency with
Dollars at Bank of America's principal office in London at 5:00 p.m. on the
Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from it in
any currency (the "Primary Currency") to any Lender or any Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or such
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or such Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency. If the amount of the applicable Primary Currency so purchased
is less than such sum due to such Lender or such Agent (as the case may be) in
the applicable Primary Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or such Agent
(as the case may be) against such loss, and if the amount of the applicable
Primary Currency so purchased exceeds such sum due to any Lender or any Agent
(as the case may be) in the applicable Primary Currency, such Lender or such
Agent (as the case may be) agrees to remit to the Borrower such excess.
10.18 Substitution of Currency. If a change in any Committed Currency
occurs pursuant to any applicable Law, rule or regulation of any governmental,
monetary or multi-national authority, this Agreement (including, without
limitation, the definition of Eurocurrency Rate) will be amended to the extent
determined by the Paying Agent (acting reasonably and in consultation with the
Borrower) to be necessary to reflect the change in currency and to put the
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Lenders and the Borrower in the same position, so far as possible, that they
would have been in if no change in such Committed Currency had occurred.
10.19 Governing Law.
(a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
THE BORROWER, EACH AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
10.20 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
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CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION 10.20 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.21 Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the Co- Administrative Agents shall
have been notified by each Lender, Swing Line Lender and each Appropriate L/C
Issuer that each such Lender, the Swing Line Lender and each Appropriate L/C
Issuer has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
10.22 Post-Closing Restructuring. Notwithstanding anything in this
Agreement or in any other Loan Agreement to the contrary, the parties hereto
hereby agree that no transaction specifically described in Schedule 10.22 shall,
with respect to any Loan Document, (w) breach any representation or warranty,
(x) breach any covenant, (y) result in a Default or (z) result in any prepayment
of the Loans or Cash Collateralization of Letters of Credit.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE TIMKEN COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Corporate Controller
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BANK OF AMERICA, N.A., as
Co-Administrative Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
96
BANC OF AMERICA SECURITIES LLC, as Lead
Arranger
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
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KEYBANK NATIONAL ASSOCIATION, as Co-
Administrative Agent, Paying Agent, Lead
Arranger, Lender, Swing Line Lender and
an Appropriate L/C Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as
Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
99
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION, as
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as Documentation
Agent and Lender
By: /s/ Jaap L. Tonckens
Name: Jaap L. Tonckens
Title: Vice President