Exhibit 4.1
CONFORMED COPY
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CREDIT AGREEMENT
Dated as of August 26, 2003
among
LITTELFUSE, INC.,
as Borrower,
BANK OF AMERICA, N.A.,
as Agent
and
The Other Lenders Party Hereto
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BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................................................. 1
1.01 Defined Terms................................................................................. 1
1.02 Other Interpretive Provisions................................................................. 21
1.03 Accounting Terms.............................................................................. 21
1.04 Rounding...................................................................................... 22
1.05 References to Agreements and Laws............................................................. 22
1.06 Exchange Rates; Currency Equivalents.......................................................... 22
1.07 Additional Alternative Currencies............................................................. 23
1.08 Change of Currency............................................................................ 23
1.09 Letter of Credit Amounts...................................................................... 24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.................................................. 24
2.01 Committed Loans............................................................................... 24
2.02 Borrowings, Conversions and Continuations of Committed Loans.................................. 25
2.03 Letters of Credit............................................................................. 27
2.04 Swing Line Loans.............................................................................. 35
2.05 Prepayments................................................................................... 38
2.06 Reduction or Termination of Commitments....................................................... 39
2.07 Repayment of Loans............................................................................ 39
2.08 Interest...................................................................................... 39
2.09 Fees.......................................................................................... 40
2.10 Computation of Interest and Fees.............................................................. 41
2.11 Evidence of Debt.............................................................................. 41
2.12 Payments Generally............................................................................ 42
2.13 Sharing of Payments........................................................................... 44
2.14 Increase in Commitments....................................................................... 44
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY................................................. 45
3.01 Taxes......................................................................................... 45
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
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3.05 Funding Losses................................................................................ 49
3.06 Matters Applicable to all Requests for Compensation........................................... 50
3.07 Survival...................................................................................... 50
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.............................................. 50
4.01 Conditions of Initial Credit Extension........................................................ 50
4.02 Conditions to all Credit Extensions and Conversions and Continuations......................... 51
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................... 52
5.01 Existence, Qualification and Power; Compliance with Laws...................................... 52
5.02 Authorization; No Contravention............................................................... 53
5.03 Governmental Authorization.................................................................... 53
5.04 Binding Effect................................................................................ 53
5.05 Financial Statements; No Material Adverse Effect.............................................. 53
5.06 Litigation.................................................................................... 54
5.07 No Default.................................................................................... 54
5.08 Ownership of Property; Liens.................................................................. 54
5.09 Environmental Compliance...................................................................... 54
5.10 Insurance..................................................................................... 54
5.11 Taxes......................................................................................... 54
5.12 ERISA Compliance.............................................................................. 54
5.13 Subsidiaries.................................................................................. 55
5.14 Disclosure.................................................................................... 55
5.15 Compliance with Laws.......................................................................... 56
5.16 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................ 56
5.17 Tax Shelter Regulations....................................................................... 56
ARTICLE VI AFFIRMATIVE COVENANTS.................................................................. 56
6.01 Financial Statements.......................................................................... 57
6.02 Certificates; Other Information............................................................... 57
6.03 Notices....................................................................................... 58
6.04 Payment of Obligations........................................................................ 59
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6.05 Preservation of Existence, Etc................................................................ 59
6.06 Maintenance of Properties..................................................................... 59
6.07 Maintenance of Insurance...................................................................... 60
6.08 Compliance with Laws.......................................................................... 60
6.09 Books and Records............................................................................. 60
6.10 Inspection Rights............................................................................. 60
6.11 Use of Proceeds............................................................................... 60
6.12 Guarantors.................................................................................... 60
ARTICLE VII NEGATIVE COVENANTS..................................................................... 61
7.01 Liens......................................................................................... 61
7.02 Investments................................................................................... 62
7.03 Indebtedness.................................................................................. 62
7.04 Fundamental Changes........................................................................... 63
7.05 Dispositions.................................................................................. 63
7.06 Restricted Payments........................................................................... 64
7.07 Change in Nature of Business.................................................................. 64
7.08 Transactions with Affiliates.................................................................. 64
7.09 Margin Regulations............................................................................ 65
7.10 Capital Expenditures.......................................................................... 65
7.11 Lease and Rental Expense...................................................................... 65
7.12 Financial Covenants........................................................................... 65
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES......................................................... 66
8.01 Events of Default............................................................................. 66
8.02 Remedies Upon Event of Default................................................................ 68
8.03 Application of Funds.......................................................................... 69
ARTICLE IX AGENT.................................................................................. 69
9.01 Appointment and Authorization of Agent........................................................ 69
9.02 Delegation of Duties.......................................................................... 70
9.03 Liability of Agent............................................................................ 70
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9.04 Reliance by Agent............................................................................. 70
9.05 Notice of Default............................................................................. 71
9.06 Credit Decision; Disclosure of Information by Agent........................................... 71
9.07 Indemnification of Agent...................................................................... 72
9.08 Agent in its Individual Capacity.............................................................. 72
9.09 Successor Agent............................................................................... 73
9.10 Agent May File Proofs of Claim................................................................ 73
9.11 Guaranty Matters.............................................................................. 74
ARTICLE X MISCELLANEOUS.......................................................................... 74
10.01 Amendments, Etc............................................................................... 74
10.02 Notices and Other Communications; Facsimile Copies............................................ 75
10.03 No Waiver; Cumulative Remedies................................................................ 76
10.04 Attorney Costs, Expenses and Taxes............................................................ 77
10.05 Indemnification by Borrower................................................................... 77
10.06 Payments Set Aside............................................................................ 78
10.07 Successors and Assigns........................................................................ 78
10.08 Confidentiality............................................................................... 81
10.09 Set-off....................................................................................... 82
10.10 Interest Rate Limitation...................................................................... 83
10.11 Counterparts.................................................................................. 83
10.12 Integration................................................................................... 83
10.13 Survival of Representations and Warranties.................................................... 83
10.14 Severability.................................................................................. 83
10.15 Tax Forms..................................................................................... 84
10.16 Governing Law; Submission to Jurisdiction..................................................... 86
10.17 Waiver of Right to Trial by Jury.............................................................. 86
10.18 Time of the Essence........................................................................... 86
10.19 Judgment Currency............................................................................. 86
SIGNATURES S-1
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TABLE OF CONTENTS
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SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption Agreement
F Guaranty
G Opinion
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of August 26,
2003, among LITTELFUSE, INC., a Delaware corporation ("Borrower"), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Agent.
Borrower has requested that Lenders provide a revolving credit
facility, and Lenders are willing to do so on the terms and conditions set forth
herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquired Business" means any Person or assets, as the case may be,
acquired through an Acquisition.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary before giving effect to such merger or consolidation,
provided that the Borrower or the Subsidiary is the surviving entity).
"Affiliate" means, with respect to any Person, another Person that
directly or indirectly through one or more intermediaries, Controls, or is
Controlled by or is under common Control with, the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having ordinary voting power for the election
of directors, managing general partners or equivalent governing body of such
Person.
"Agent" means Bank of America in its capacity as (a) Agent under any of
the Loan Documents, (b) issuer of Letters of Credit hereunder, and/or (c) as
provider of Swing Line Loans hereunder, as the context requires, or any
successor Agent.
"Agent's Office" means Agent's address and, as appropriate, account as
set forth on Schedule 10.02, or such other address or account as Agent may from
time to time notify Borrower and Lenders.
"Agent-Related Persons" means Agent, together with its Affiliates
(including, in the case of Bank of America in its capacity as Agent, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Sterling, Yen, Swiss Franc
and each other currency (other than Dollars) that is approved in accordance with
Section 1.07.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency as determined by Agent, at such time on the
basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of
the Aggregate Commitments and $10,000,000. The Alternative Currency Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by Agent pursuant to Section 6.02(b):
Applicable Rate Applicable
for Eurocurrency Rate for
Pricing Level Consolidated Leverage Applicable Rate for Rate Loans and Base Rate
Leverage Ratio Commitment Fee Letters of Credit Loans
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1 <1.00:1 0.250% 0.875% 0.000%
2 > or = 1.00:1 but < or = 1.50:1 0.300% 1.000% 0.000%
3 > or = 1.50:1 but < or = 2.00:1 0.350% 1.250% 0.000%
4 > or = 2.00:1 0.400% 1.500% 0.250%
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Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective commencing on the 5th
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided, however, that if no Compliance
Certificate is delivered when due in accordance with such Section, then Pricing
Level 4 shall apply commencing on the 5th Business Day following the date such
Compliance Certificate was required to have been delivered. The Applicable Rate
in effect from the Closing Date through the date which is the 5th Business Day
immediately following the date the initial Compliance Certificate is delivered
pursuant to Section 6.02(b) shall be determined based upon Pricing Level 3.
Notwithstanding the foregoing, for any fiscal
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quarter for which the Total Outstandings (measured as of the end of such fiscal
quarter) exceed 33% of the Aggregate Commitments, the Applicable Rate with
respect to the Commitment Fee payable under Section 2.09(a) shall be reduced by
0.050% from the rate that would otherwise be in effect.
"Applicable Time" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by Agent to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in
the place of payment.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of Borrower and its Subsidiaries for the fiscal year ended December 28,
2002, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of Borrower and its
Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of Agent to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change
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in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where Agent's Office with respect to Obligations
denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any
such Eurocurrency Rate Loan, or any other dealings in Dollars to be
carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in
deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings,
disbursements, settlements and payments in Euro in respect of any such
Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate
Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or Euro in
respect of a Eurocurrency Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than
Dollars or Euro to be carried out pursuant to this Agreement in respect
of any such Eurocurrency Rate Loan (other than any interest rate
settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of
such currency.
"Cash Collateralize" has the meaning specified in Section 2.03(g)
"Change of Control" means, with respect to any Person, an event or
series of events by which:
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(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 20% or more of the
equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a
fully diluted basis (and, taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right); or
(b) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of such Person cease to be composed of individuals: (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01 (or, in
the case of Section 4.01(b), waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the Dollar amount set forth opposite such Lender's name on Schedule 2.01,
or in the Assignment and Assumption Agreement pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of Lenders
pursuant to Section 2.01.
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"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if
in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Capital Expenditures" means, as of the last day of any
fiscal quarter for any period, the capital expenditures of Borrower and its
Subsidiaries for such period, as the same are (or would in accordance with GAAP
be) set forth in the consolidated statement of changes in financial position of
Borrower and its Subsidiaries for such period.
"Consolidated EBIT" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for federal, state, local and foreign income taxes payable by
Borrower and its Subsidiaries for such period, and (iii) other expenses
(excluding depreciation and amortization) of Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such
period or any future period, and minus (b) all non-cash items increasing
Consolidated Net Income for such period.
"Consolidated EBITDA" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, Consolidated EBIT plus the amount of
depreciation and amortization expense deducted in determining Consolidated Net
Income for such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of the end of any
fiscal quarter, the ratio of:
(c) Consolidated EBIT for the period of the four fiscal
quarters then ending, less the amount of all taxes based on or measured
by income used or included in the determination of Consolidated Net
Income, paid or required to be paid in cash by Borrower and its
Subsidiaries on a consolidated basis during such period, to
(d) Consolidated Interest Charges paid or required to be paid
during such period.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for Borrower and its Subsidiaries on a consolidated basis, the
sum of (a) the outstanding principal amount of all obligations, whether current
or long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases and
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Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than Borrower or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which Borrower or a Subsidiary is a
general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to Borrower or such Subsidiary. The contingent obligation of
Borrower to pay up to $5,000,000 of deferred purchase price pursuant to the
Teccor Acquisition shall not be deemed to be Indebtedness hereunder so long (and
only so long) as the contingency giving rise to the payment thereof (i.e.,
required sales) has not been satisfied.
"Consolidated Interest Charges" means, for any period, for Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated Funded Indebtedness as of the end of such
fiscal quarter to (b) Consolidated EBITDA for the period of the four consecutive
fiscal quarters then ending.
"Consolidated Net Income" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Consolidated Net Worth" means, as of any date of determination, for
Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity of
Borrower and its Subsidiaries on that date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate".
"Credit Extension" means each of the following: (a) a Borrowing, and
(b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
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"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by Agent at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht
Treaty of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
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those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower
or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Base Rate" has the meaning set forth in the definition of
Eurocurrency Rate.
"Eurocurrency Rate" means for any Interest Period with respect to a
Eurocurrency Rate Loan, a rate per annum determined by Agent pursuant to the
following formula:
Eurocurrency Rate = Eurocurrency Base Rate
---------------------------------
1.00 - Eurodollar Reserve Percentage
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Where,
"Eurocurrency Base Rate" means, for such Interest Period:
(e) the applicable Screen Rate for such Interest Period; or
(f) if the applicable Screen Rate shall not be available, the
rate per annum determined by Agent as the rate of interest at which
deposits in the relevant 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, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first day of
such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears interest at
a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All Committed Loans
denominated in an Alternative Currency must be Eurocurrency Rate Loans.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 8.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by Agent.
"Fee Letter" has the meaning specified in Section 2.09(b).
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States or a state thereof.
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"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantors" means collectively, the Domestic Subsidiaries (present and
future) of the Borrower.
"Guaranty" means the Guaranty made by the Guarantors in favor of Agent
on behalf of Lenders, in form and substance satisfactory to Agent.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas,
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infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(g) 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;
(h) 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;
(i) net obligations of such Person under any Swap Contract;
(j) 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);
(k) 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;
(l) capital leases and Synthetic Lease Obligations; and
(m) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date. The contingent obligation of Borrower to pay up to
$5,000,000 of deferred purchase price pursuant to the Teccor Acquisition shall
not be deemed to be Indebtedness hereunder so long (and only so long) as the
contingency giving rise to the payment thereof (i.e., required sales) has not
been satisfied.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnitees" has the meaning specified 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,
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that if any Interest Period for a Eurocurrency Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date.
"Interest Period" means as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by Borrower in its Committed Loan Notice;
provided that:
(n) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(o) 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
(p) 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. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
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"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
All L/C Advances shall be denominated in Dollars.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing. All L/C Borrowings shall be denominated
in Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes Agent in its capacity as issuer of
Letters of Credit and provider of Swing Line Loans hereunder.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Borrower and Agent.
"Letter of Credit" means any letter of credit issued hereunder. A
Letter of Credit may be a commercial letter of credit or a standby letter of
credit. Letters of Credit may be issued in Dollars or in an Alternative
Currency.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by Agent.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $5,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing.
"Loan" means an extension of credit by a Lender to Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
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"Loan Documents" means this Agreement, each Note, the Fee Letter, and
the Guaranty.
"Loan Parties" means, collectively, Borrower and each Person (other
than Agent or any Lender) executing a Loan Document. The term Loan Party shall
include, without limitation, each Guarantor.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual and contingent), condition (financial or otherwise) or prospects of
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Maturity Date" means (a) August 26, 2006, or (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance with the
terms hereof.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Note" means, means a promissory note made by Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.
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"Outstanding Amount" means (i) with respect to Committed Loans on any
date, the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Committed Loans occurring on such date; (ii) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line
Loans occurring on such date; and (iii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate, and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America in the applicable offshore interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Acquisition" means an Acquisition which meets each of the
following conditions: (i) the prior, effective written consent or approval to
such Acquisition of the board of directors or equivalent governing body of the
Acquired Business (and/or its parent entity) is obtained; (ii) the Acquired
Business represents a line of business substantially the same, similar or,
complimentary to the lines of business carried on by the Borrower and its
Subsidiaries on the date hereof; (iii) immediately before and after giving
effect to such Acquisition, no Default or Event of Default shall exist, (iv)
immediately before and after giving effect to such Acquisition, the Borrower
shall be in compliance with the financial tests set forth in Section 7.12 (for
this purpose the Consolidated Leverage Ratio shall be determined on a pro forma
basis as if the Acquisition had been consummated at the beginning of the period
of the four consecutive fiscal quarters of the Borrower then most recently
ended), and (v) the Borrower shall have forwarded to Agent such additional
information regarding such Acquisition or the Acquired Business as Agent
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shall have requested, and (vi) the Borrower shall have furnished to Agent a
certificate of its chief financial officer to the effect that the foregoing
conditions are satisfied (such certificate to be accompanied by a computation of
the financial tests set forth in Section 7.12 and to be satisfactory to Agent in
all respects).
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by Borrower or, with respect to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pro Rata Share" means, with respect to each Lender, at any time, a
fraction (expressed as a percentage), carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans and the
obligation of Agent to make L/C Credit Extensions have been terminated pursuant
to Section 8.02, then the Pro Rata Share of each Lender shall be determined
based on the Pro Rata Share of such Lender immediately prior to such termination
and after giving effect to any subsequent assignments made pursuant to Section
10.07. The initial Pro Rata Share of each Lender is set forth opposite the name
of such Lender on Schedule 2.01 or in the Assignment and Assumption Agreement
pursuant to which such Lender becomes a party hereto, as applicable.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, two or more
Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans and the obligation of Agent to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed
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by a Responsible Officer of a Loan Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other equity interest of Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest
or of any option, warrant or other right to acquire any such capital stock or
other equity interest.
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and
(iii) such additional dates as Agent shall determine or the Required Lenders
shall require; and (b) with respect to any Letter of Credit, each of the
following: (i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by Agent of any Letter
of Credit denominated in an Alternative Currency, and (iv) such additional dates
as Agent shall determine or the Required Lenders shall require.
"Same Day Funds" means (a) with respect to disbursements and payments
in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Alternative Currency, same day or other funds as may be
determined by Agent to be customary in the place of disbursement or payment for
the settlement of international banking transactions in the relevant Alternative
Currency.
"Screen Rate" means, for any Interest Period:
(q) the rate per annum equal to the rate determined by Agent
to be 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 the relevant
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
(r) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by
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 the relevant 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.
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"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Special Notice Currency" means at any time an Alternative Currency,
other than the currency of a country that is a member of the Organization for
Economic Cooperation and Development at such time located in North America or
Europe.
"Spot Rate" for a currency means the rate determined by Agent to be the
rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 10:00 a.m. Chicago
time on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that Agent may obtain such spot rate from
another financial institution designated by Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency; and provided further that Agent may use such spot rate quoted
on the date as of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.
"Sterling" and "(pound)" mean the lawful currency of the United
Kingdom.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap
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Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the ▇▇▇▇-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
"Swing Line" means the uncommitted and discretionary revolving credit
facility made available by Agent pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Swiss Franc" means the lawful currency of Switzerland.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such
payment system ceases to be operative, such other payment system (if any)
determined by Agent to be a suitable replacement) is open for the settlement of
payments in Euro.
"Taxes" has the meaning specified in Section 3.01(a).
"Teccor" means Teccor Electronics, Inc., a Texas corporation.
"Teccor Acquisition" means the acquisition by Borrower of 100% of the
outstanding capital stock of Teccor from Ranco Incorporated of Delaware, a
subsidiary of Invensys plc, on July 7, 2003.
"Teccor Pro Forma EBITDA" means Consolidated EBITDA (as defined in this
Agreement, but modified to substitute Teccor for Borrower); it being understood
that for purposes of this Agreement, based on information furnished by Borrower
to Agent, for each period of four consecutive fiscal quarters ending on or about
the following dates, Teccor Pro
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Forma EBITDA shall be deemed to be the amount applicable to such period as
follows (i) June 30, 2003: ($2,400,000); (ii) September 30, 2003: ($1,800,000);
(iii) December 31, 2003: ($1,200,000); and (iv) March 31, 2004: ($600,000).
Parenthetical amounts are negative.
"Threshold Amount" means $2,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means with respect to a Committed Loan, its character as a Base
Rate Committed Loan or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States," and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Yen" and "(Y)" mean the lawful currency of Japan.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein", "hereto", "hereof" and "hereunder"
and words of similar import when used in any Loan Document shall refer
to such Loan Document as a whole and not to any particular provision
thereof; (ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears; (iii) the term
"including" is by way of example and not limitation; and (iv) the term
"documents" includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;"
and the word "through" means "to and including."
(d) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
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(a) All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial
data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either Borrower or the Required Lenders shall so request,
Agent, Lenders and Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) Borrower shall provide to Agent and
Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by
any Loan Party pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts
of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by
Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall
be such Dollar Equivalent amount as so determined by Agent.
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(b) Wherever in this Agreement in connection with a Committed
Borrowing, conversion, continuation or prepayment of a Eurocurrency
Rate Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Committed Borrowing, Eurocurrency Rate
Loan or Letter of Credit is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of
such Dollar amount (rounded to the nearest unit of such Alternative
Currency, with 0.5 of a unit being rounded upward), as determined by
Agent.
1.07 ADDITIONAL ALTERNATIVE CURRENCIES.
(a) Borrower may from time to time request that Eurocurrency
Rate Loans be made and/or Letters of Credit be issued in a currency
other than those specifically listed in the definition of "Alternative
Currency;" provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with
respect to the making of Eurocurrency Rate Loans, such request shall be
subject to the approval of Agent and Lenders; and in the case of any
such request with respect to the issuance of Letters of Credit, such
request shall be subject to the approval of Agent.
(b) Any such request shall be made to Agent not later than
10:00 a.m., Chicago time, 20 Business Days prior to the date of the
desired Credit Extension (or such other time or date as may be agreed
by Agent in its sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, Agent shall promptly notify each
Lender thereof. Each Lender (in the case of any such request pertaining
to Eurocurrency Rate Loans) shall notify Agent, not later than 10:00
a.m., Chicago time, ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans or the issuance of Letters of Credit, as the
case may be, in such requested currency.
(c) Any failure by a Lender to respond to such request within
the time period specified in the preceding sentence shall be deemed to
be a refusal by such Lender to permit Eurocurrency Rate Loans to be
made or Letters of Credit to be issued in such requested currency. If
Agent and all Lenders consent to making Eurocurrency Rate Loans in such
requested currency, Agent shall so notify Borrower and such currency
shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency Rate Loans; and if Agent consents to the issuance of
Letters of Credit in such requested currency, Agent shall so notify
Borrower and such currency shall thereupon be deemed for all purposes
to be an Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.07, Agent shall
promptly so notify Borrower.
1.08 CHANGE OF CURRENCY.
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(a) Each obligation of Borrower to make a payment denominated
in the national currency unit of any member state of the European Union
that adopts the Euro as its lawful currency after the date hereof shall
be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such
member state, the basis of accrual of interest expressed in this
Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of
accrual of interest in respect of the Euro, such expressed basis shall
be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency;
provided that if any Committed Borrowing in the currency of such member
state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Committed Borrowing, at the end
of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any
member state of the European Union and any relevant market conventions
or practices relating to the Euro.
(c) Each provision of this Agreement also shall be subject to
such reasonable changes of construction as Agent may from time to time
specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to
the change in currency.
1.09 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the Dollar Equivalent of the maximum face amount of such Letter
of Credit after giving effect to all increases thereof contemplated by such
Letter of Credit or the Letter of Credit Application therefor, whether or not
such maximum face amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS.
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to Borrower in Dollars or in one or more Alternative Currencies from time
to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment; provided, however, that after giving effect to any Committed
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Commitment, and (iii) the
aggregate Outstanding Amount of all Committed Loans and L/C Obligations
denominated in Alternative Currencies shall not exceed the Alternative Currency
Sublimit. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and
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reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed
Loans from one Type to the other, and each continuation of Eurocurrency
Rate Loans shall be made upon Borrower's irrevocable notice to Agent,
which may be given by telephone. Each such notice must be received by
Agent (i) not later than 10:00 a.m., Chicago time, three Business Days
prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of
any conversion of Eurocurrency Rate Loans denominated in Dollars to
Base Rate Committed Loans, (ii) not later than 10:00 a.m., Chicago
time, four Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Loans denominated in Alternative
Currencies, and (iii) not later than 1:00 p.m., Chicago time, on the
requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of
Borrower. Except as provided in Sections 2.03(c) and 2.04(c), each
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Each Committed Borrowing of or conversion
to Base Rate Committed Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof. Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether
Borrower is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto, and (vi) the
currency of the Committed Loans to be borrowed. If Borrower fails to
specify a currency in a Committed Loan Notice requesting a Borrowing,
then the Committed Loans so requested shall be made in Dollars. If
Borrower fails to specify a Type of Committed Loan in a Committed Loan
Notice or if Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Committed Loans shall
be made as, or converted to, Base Rate Loans; provided, however, that
in the case of a failure to timely request a continuation of Committed
Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an
Interest Period of one month. Any automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then
in effect with respect to the applicable Eurocurrency Rate Loans. If
Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Committed Loan may be converted into
or continued as a Committed
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Loan denominated in a different currency, but instead must be prepaid
in the original currency of such Committed Loan and reborrowed in the
other currency.
(b) Following receipt of a Committed Loan Notice, Agent shall
promptly notify each Lender of the amount (and currency) of its Pro
Rata Share of the applicable Committed Loans, and if no timely notice
of a conversion or continuation is provided by Borrower, Agent shall
notify each Lender of the details of any automatic conversion to Base
Rate Loans or continuation of Committed Loans denominated in a currency
other than Dollars, in each case as described in the preceding
subsection. In the case of a Committed Borrowing, each Lender shall
make the amount of its Committed Loan available to Agent in Same Day
Funds at Agent's Office for the applicable currency not later than 3:00
p.m., Chicago time, in the case of any Committed Loan denominated in
Dollars, and not later than the Applicable Time specified by the Agent
in the case of any Committed Loan in an Alternative Currency, in each
case on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension,
Section 4.01), Agent shall make all funds so received available to
Borrower in like funds as received by Agent either by (i) crediting the
account of Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to)
Agent by Borrower; provided, however, that if, on the date of the
Committed Loan Notice with respect to such Borrowing denominated in
Dollars is given by Borrower there are L/C Borrowings outstanding, then
the proceeds of such Borrowing shall be applied, first, to the payment
in full of any such L/C Borrowings, and second, to Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurocurrency Rate
Loan may be continued or converted only on the last day of an Interest
Period for such Eurocurrency Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans (whether in Dollars or any Alternative
Currency) without the consent of the Required Lenders, and the Required
Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent
thereof, on the last day of the then current Interest Period with
respect thereto.
(d) Agent shall promptly notify Borrower and Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate
Loans upon determination of such interest rate. The determination of
the Eurodollar Rate by Agent shall be conclusive in the absence of
manifest error. At any time that Base Rate Loans are outstanding, Agent
shall notify Borrower and Lenders of any change in Bank of America's
prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all
continuations of Committed Loans
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as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set
forth herein, (A) Agent agrees, in reliance upon the
agreements of the other Lenders set forth in this Section
2.03: (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies for the
account of Borrower or its Subsidiaries, and to amend or renew
Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) Lenders severally agree to
participate in Letters of Credit issued for the account of
Borrower; provided that Agent shall not be obligated
to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in,
any Letter of Credit if as of the date of such L/C Credit
Extension, (w) the Total Outstandings would exceed the
Aggregate Commitments, (x) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed such Lender's
Commitment, (y) the Outstanding Amount of the L/C Obligations
would exceed the Letter of Credit Sublimit, or (z) the
aggregate Outstanding Amount of all L/C Obligations and all
Committed Loans denominated in Alternative Currencies would
exceed the Alternative Currency Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof,
Borrower's ability to obtain Letters of Credit shall be fully
revolving, and accordingly Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) Agent shall be under no obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain Agent from
issuing such Letter of Credit, or any Law applicable
to Agent or any request or directive (whether or not
having the force of law) from any Governmental
Authority with jurisdiction over Agent shall
prohibit, or request that Agent refrain from, the
issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon
Agent with respect to such Letter of Credit any
restriction, reserve or capital requirement (for
which Agent is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose
upon Agent any unreimbursed loss, cost or expense
which was not applicable on
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the Closing Date and which Agent in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(B) subject to Section 2.03(b)(iv), the
expiry date of such requested Letter of Credit would
occur more than twelve months after the date of
issuance 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 Lenders have approved
such expiry date;
(D) the issuance of such Letter of Credit
would violate one or more policies of Agent;
(E) such Letter of Credit is in an initial
amount less than $100,000, in the case of a
commercial Letter of Credit, or $500,000, in the case
of a standby Letter of Credit, or is to be used for a
purpose other than those specified in Section 6.11;
(F) Agent does not as of the issuance date
of such requested Letter of Credit issue Letters of
Credit in the requested currency; or
(G) such Letter of Credit is to be
denominated in a currency other than Dollars or an
Alternative Currency, unless all Lenders have
consented thereto.
(iii) Agent shall be under no obligation to amend
any Letter of Credit if (A) Agent would have no obligation at
such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such
Letter of Credit.
(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 Borrower delivered to
Agent in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of
Borrower. Such Letter of Credit Application must be received
by Agent (A) not later than 10:00 a.m., Chicago time, at least
two Business Days prior to the proposed issuance date or date
of amendment, as the case may be, of any Letter of Credit
denominated in Dollars, and (B) not later than 10:00 a.m.,
Chicago time, at least ten Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any
Letter of Credit denominated in an Alternative Currency; or in
each case such later date and time as Agent may agree in a
particular instance in its sole discretion. In the case of a
request for an initial
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issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to
Agent: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to
be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as Agent may require.
In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to Agent (A) the
Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters
as Agent may require. Additionally, Borrower shall furnish to
Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, as Agent may
require.
(ii) Promptly after receipt of any Letter of
Credit Application by Agent at the address set forth in
Schedule 10.02 for receiving Letter of Credit Applications and
related correspondence, if the requested issuance or amendment
is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, Agent shall, on
the requested date, issue a Letter of Credit for the account
of Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with Agent's usual and
customary business practices. Immediately upon the issuance of
each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase
from Agent a risk participation in such Letter of Credit in an
amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, Agent
will also deliver to Borrower a true and complete copy of such
Letter of Credit or amendment.
(iv) If Borrower so requests in any applicable
Letter of Credit Application, Agent may, in it sole and
absolute discretion, agree to issue a Letter of Credit that
has automatic renewal provisions (each, an "Auto-Renewal
Letter of Credit"); provided that any such Auto-Renewal Letter
of Credit must permit Agent 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 Agent, Borrower shall not be
required to make a specific request to Agent for any such
renewal. Once an Auto-Renewal Letter of Credit has been
issued, Lenders shall be deemed to have authorized (but may
not require) Agent to permit the renewal of such Letter of
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Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that Agent shall
not permit any such renewal if (A) Agent 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 Section 2.03(a)(ii) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) at
least two (2) Business Days before the Nonrenewal Notice Date
(1) from the Required Lenders that they have elected not to
permit such renewal or (2) from any Lender or Borrower that
one or more of the applicable conditions specified in Section
4.02 is not then satisfied. Notwithstanding anything to the
contrary contained herein, Agent shall have no obligation to
permit the renewal of any Auto-Renewal Letter of Credit at any
time.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any
Letter of Credit of any notice of drawing under such Letter of
Credit, Agent shall notify Borrower thereof. In the case of a
Letter of Credit denominated in an Alternative Currency,
Borrower shall reimburse Agent in such Alternative Currency,
unless (i) Agent (at its option) shall have specified in such
notice that it will require reimbursement in Dollars, or (ii)
in the absence of any such requirement for reimbursement in
Dollars, Borrower shall have notified Agent promptly following
receipt of the notice of drawing that Borrower will reimburse
Agent in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in
an Alternative Currency, Agent shall notify Borrower of the
Dollar Equivalent of the amount of the drawing promptly
following the determination thereof. Not later than 10:00
a.m., Chicago time, on the date of any payment by Agent under
a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by Agent under a
Letter of Credit to be reimbursed in an Alternative Currency
(each such date, an "Honor Date"), Borrower shall reimburse
Agent in an amount equal to the amount of such drawing and in
the applicable currency. If Borrower fails to so reimburse
Agent by such time, Agent shall promptly notify each Lender of
the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent
thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the "Unreimbursed Amount"), and the
amount of such Lender's Pro Rata Share thereof. In such event,
Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard
to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery
of a Committed Loan Notice). Any notice given by Agent
pursuant to this Section 2.03(c)(i) may be given by telephone
if promptly confirmed in writing; provided that the lack of
such a prompt confirmation shall not affect the conclusiveness
or binding effect of such notice.
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(ii) Each Lender (including Agent in its capacity
as a Lender) shall upon any notice pursuant to Section
2.03(c)(i) make funds available to Agent at Agent's Office for
Dollar-denominated payments in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 12:00 p.m.,
Chicago time, on the Business Day specified in such notice by
Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to Borrower
in such amount.
(iii) With respect to any Unreimbursed Amount that
is not fully refinanced by a Committed Borrowing of Base Rate
Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, Borrower shall be deemed
to have incurred from Agent an L/C Borrowing in the amount of
the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to Agent pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan
or L/C Advance pursuant to this Section 2.03(c) to reimburse
Agent for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Pro Rata Share of such
amount shall be solely for the account of Agent.
(v) Each Lender's obligation to make Committed
Loans or L/C Advances to reimburse Agent for amounts drawn
under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against Agent, Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance
of a Default; or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing. No such making
of an L/C Advance shall relieve or otherwise impair the
obligation of Borrower to reimburse Agent for the amount of
any payment made by Agent under any Letter of Credit, together
with interest as provided herein.
(vi) If any Lender fails to make available to
Agent any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), Agent shall be entitled
to recover from such Lender, on demand, such amount with
interest thereon for the period from the date such payment is
required to the date on which such payment is immediately
available to Agent at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of
Agent submitted to any Lender with respect to any amounts
owing under this clause (vi) shall be conclusive absent
manifest error.
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(d) Repayment of Participations.
(i) At any time after Agent has made a payment
under any Letter of Credit and has received from any Lender
such Lender's L/C Advance in respect of such payment in
accordance with Section 2.03(c), if Agent receives any payment
in respect of the related Unreimbursed Amount or interest
thereon (whether directly from Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by
Agent), Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such
Lender's L/C Advance was outstanding) in Dollars and in the
same funds as those received by Agent.
(ii) If any payment received by Agent pursuant to
Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant
to any settlement entered into by Agent in its discretion),
each Lender shall pay to Agent its Pro Rata Share thereof on
demand of Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at
a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
(e) Obligations Absolute. The obligation of Borrower to
reimburse Agent for each drawing under each Letter of Credit, and to
repay each L/C Borrowing, shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of
such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto;
(ii) the existence of any claim, counterclaim,
set-off, defense or other right that Borrower may have at any
time against any beneficiary or any transferee of such Letter
of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), Agent or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other
document presented under such Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by Agent under such Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit; or any payment made by Agent under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of
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or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange
rates or in the availability of the relevant Alternative
Currency to Borrower or in the relevant currency markets
generally; or
(vi) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of,
Borrower.
No payment by Borrower to Agent of any reimbursement obligation or L/C
Borrowing shall constitute a waiver by Borrower of any of its rights
under Section 2.03(f). Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it
and, in the event of any claim of noncompliance with Borrower's
instructions or other irregularity, Borrower will immediately notify
Agent. Borrower shall be conclusively deemed to have waived any such
claim against Agent and its correspondents unless such notice is given
as aforesaid.
(f) Role of Agent. Each Lender and Borrower agree that, in
paying any drawing under a Letter of Credit, Agent shall not have any
responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document. None of Agent, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of Agent shall be
liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Letter of Credit Application.
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any
other agreement. None of Agent, any Agent-Related Person, nor any of
the respective correspondents, participants or assignees of Agent,
shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, Borrower may
have a claim against Agent, and Agent may be liable to Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by Borrower which Borrower
proves were caused by Agent's willful misconduct or gross negligence or
Agent's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of such
Letter of Credit. In furtherance and not in limitation of the
foregoing, Agent may accept documents that appear on their
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face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and Agent
shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
(g) Cash Collateral. Upon the request of Agent, (i) if Agent
has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, (A) any Letter of Credit
for any reason remains outstanding and partially or wholly undrawn, or
(B) any amount remains available to be drawn under any Letter of Credit
by reason of the operation of Rule 3.14 of the ISP, Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration
Date, as the case may be). Agent may, at any time and from time to time
after the initial deposit of Cash Collateral, request that additional
Cash Collateral be provided in order to protect against the results of
exchange rate fluctuations. Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to Agent,
for the benefit of Agent, as issuer of Letters of Credit and Lenders,
as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to Agent
(which documents are hereby consented to by Lenders). Derivatives of
such term have corresponding meanings. Borrower hereby grants to Agent,
for the benefit of Agent, as issuer of Letters of Credit and Lenders, a
security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by Agent and Borrower when a Letter of Credit is issued, (i) the
rules of the ISP shall apply to each standby Letter of Credit, and (ii)
the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce
(the "ICC") at the time of issuance (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. Borrower shall pay to Agent for the
account of each Lender in accordance with its Pro Rata Share a letter
of credit fee for each Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the actual daily maximum amount
available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such
letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable on the
first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. If there is any change in the Applicable
Rate during any quarter, the actual daily amount of each
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Letter of Credit shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges
Payable to Agent. Borrower shall pay directly to Agent for its own
account, in Dollars or such Alternative Currency as shall be separately
agreed, a fronting fee with respect to each Letter of Credit in the
amount specified in the Fee Letter, payable on the Dollar Equivalent of
the actual daily maximum amount available to be drawn under such Letter
of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit), due and payable quarterly in arrears on the
first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. In addition, Borrower shall pay directly
to Agent for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and
charges, of Agent relating to letters of credit as from time to time in
effect, in Dollars or such Alternative Currency as shall be separately
agreed. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event
of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support
of any obligations of, or is for the account of, a Subsidiary, Borrower
shall be obligated to reimburse Agent for any and all drawings under
such Letter of Credit. Borrower hereby acknowledges that the issuance
of Letters of Credit for the account of Subsidiaries inures to the
benefit of Borrower, and that Borrower's business derives substantial
benefits from the businesses of such Subsidiaries.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set
forth herein, Agent agrees to consider in its sole and absolute
discretion making loans in Dollars (each such loan, a "Swing Line
Loan") to Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the
fact that such Swing Line Loans, when aggregated with the Pro Rata
Share of Outstanding Amount of Committed Loans and L/C Obligations of
Agent in its capacity as a Lender of Committed Loans, may exceed the
amount of Agent's Commitment in its capacity as a Lender; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's
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Commitment. The Swing Line is a discretionary, uncommitted facility and
Agent may terminate or suspend the Swing Line at any time in its sole
discretion upon notice to Borrower which notice may be given by Agent
before or after Borrower requests a Swing Line Loan hereunder. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from Agent a risk
participation in such Swing Line Loan in an amount equal to the product
of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be
made upon Borrower's irrevocable notice to Agent, which may be given by
telephone, unless Agent has notified, or after receiving notice of a
Swing Line Borrowing notifies, Borrower that the Swing Line has been or
is terminated or suspended as provided in Section 2.04(a), Each such
notice must be received by Agent not later than 2:00 p.m., Chicago
time, on the requested borrowing date, and shall specify (i) the amount
to be borrowed, which shall be a minimum of $500,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of Borrower. Unless one or more of the applicable
conditions specified in Article IV is not then satisfied or the Swing
Line has been or is terminated or suspended by Agent as provided above,
then, subject to the terms and conditions hereof, Agent will, not later
than 4:00 p.m., Chicago time, on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan
available to Borrower at its office by crediting the account of
Borrower on the books of Agent in Same Day Funds. Lenders agree that
Agent may agree to modify the borrowing procedures used in connection
with the Swing Line in its discretion and without affecting any of the
obligations of Lenders hereunder.
(c) Refinancing of Swing Line Loans.
(i) Agent at any time in its sole and absolute
discretion (including if Agent has terminated or suspended the
Swing Line as provided above) may request, on behalf of
Borrower (which hereby irrevocably authorizes Agent to so
request on its behalf), that each Lender make a Base Rate
Committed Loan in an amount equal to such Lender's Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. Agent shall furnish
Borrower with a copy of the applicable Committed Loan Notice.
Each Lender shall make an amount equal to its Pro Rata Share
of the amount specified in such Committed Loan Notice
available to Agent in Same Day Funds at Agent's Office for
Dollar-denominated payments not later than 12:00 p.m., Chicago
time, on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender
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that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to Borrower in such amount.
(ii) If for any reason any Swing Line Loan cannot
be financed by such a Committed Borrowing in accordance with
Section 2.04(c)(i), the request for Base Rate Committed Loans
submitted by Agent as set forth herein, shall be deemed to be
a request by Agent that each of Lenders fund its risk
participation in the relevant Swing Line Loan and each
Lender's payment to Agent pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to
Agent any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.04(c) by the
time specified in Section 2.04(c)(i), Agent shall be entitled
to recover from such Lender, on demand, such amount with
interest thereon for the period from the date such payment is
required to the date on which such payment is immediately
available to Agent at a rate per annum equal to the Applicable
Overnight Rate from time to time in effect. A certificate of
Agent submitted to any Lender with respect to any amounts
owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender's obligation to make Committed
Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.04(c) shall be absolute
and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against Agent, Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not
similar to any of the foregoing. No such funding of risk
participations shall relieve or otherwise impair the
obligation of Borrower to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased
and funded a risk participation in a Swing Line Loan, if Agent
receives any payment on account of such Swing Line Loan, Agent
will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such
Lender's risk participation was funded) in the same funds as
those received by Agent.
(ii) If any payment received by Agent in respect
of principal or interest on any Swing Line Loan is required to
be returned by Agent under any of the circumstances described
in Section 10.06 (including pursuant to any settlement entered
into by Agent in its discretion), each Lender shall pay to
Agent its Pro Rata Share thereof on demand of Agent, plus
interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the
Applicable Overnight Rate.
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(e) Interest for Account of Agent. Agent shall be responsible
for invoicing Borrower for interest on the Swing Line Loans. Until each
Lender funds its Base Rate Committed Loan or risk participation
pursuant to this Section 2.04 to refinance such Lender's Pro Rata Share
of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of Agent.
2.05 PREPAYMENTS.
(a) Borrower may, upon notice to Agent, at any time or from
time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by Agent not later than (A) 10:00 a.m., Chicago time, three
Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Dollars, (B) 10:00 a.m., Chicago time, four
Business Days (or five, in the case of prepayment of Loans denominated
in Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (C)
1:00 p.m., Chicago time, on the date of prepayment of Base Rate
Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $500,000
in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof, or, in each case, if less, the entire
principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid, and, if Eurocurrency Loans are to be
prepaid, the Interest Period(s) of such Loans. Agent will promptly
notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Pro Rata Share of such prepayment. If such
notice is given by Borrower, Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.
Each such prepayment shall be applied to the Committed Loans of Lenders
in accordance with their respective Pro Rata Shares.
(b) Borrower may, upon notice to Agent, at any time or from
time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by Agent not later than 2:00 p.m., Chicago time, on the date
of the prepayment, and (ii) any such prepayment shall be in a minimum
principal amount of $100,000. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by Borrower,
Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time
exceed the Aggregate Commitments then in effect, Borrower shall
immediately prepay Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount equal to such excess; provided, however, that
Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Committed
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Loans and Swing Line Loans the Total Outstandings exceed the Aggregate
Commitments then in effect.
(d) If Agent notifies Borrower at any time that the
Outstanding Amount of all Loans and L/C Obligations denominated in
Alternative Currencies at such time exceeds an amount equal to the
Alternative Currency Sublimit then in effect, then, within two Business
Days after receipt of such notice, Borrower shall prepay Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment
to an amount not to exceed 100% of the Alternative Currency Sublimit
then in effect. Agent may, at any time and from time to time after the
initial deposit of such Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the results of
further exchange rate fluctuations.
(e) No optional prepayment of Committed Loans denominated in
an Alternative Currency may be made other than on the last day of the
applicable Interest Period for such Committed Loans, unless Lenders
consent thereto.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. Borrower may, upon
notice to Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any such notice
shall be received by Agent not later than 10:00 a.m., five Business Days prior
to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof, (iii) Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments and
(iv) if, after giving effect to any reduction of the Aggregate Commitments, the
Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. Agent will promptly notify
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Once reduced in accordance with this Section, the Aggregate
Commitments may not be increased. The amount of any such Aggregate Commitment
reduction shall not be applied to the Alternative Currency Sublimit or the
Letter of Credit Sublimit unless otherwise specified by Borrower. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All commitment fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
2.07 REPAYMENT OF LOANS.
(a) Borrower shall repay to Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) Borrower shall repay to Agent each Swing Line Loan on the
Maturity Date.
2.08 INTEREST.
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(a) Subject to the provisions of subsection (b) below, (i)
each Eurocurrency Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum
equal to the Eurodollar Rate for such Interest Period plus the
Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any
Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost; (ii) each Base Rate
Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate.
(b) If any amount payable by Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods),
whether at stated maturity by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted
by applicable Laws. Furthermore, while any Event of Default exists (or
after acceleration), Borrower shall pay interest on the principal
amount of all outstanding Obligations at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears
on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be due and
payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any
Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), (i)
whenever a rate of interest or fee rate hereunder is calculated on the
basis of a year (the "deemed year") that contains fewer days than the
actual number of days in the calendar year of calculation, such rate of
interest or fee rate shall be expressed as a yearly rate by multiplying
such rate of interest or fee rate by the actual number of days in the
calendar year of calculation and dividing it by the number of days in
the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the
rates of interest stipulated herein are intended to be nominal rates
and not effective rates or yields.
2.09 FEES. In addition to certain fees described in subsections (i)
and (j) of Section 2.03:
(a) Commitment Fee. Borrower shall pay to Agent for the
account of each Lender in accordance with its Pro Rata Share, a
commitment fee in Dollars equal to the Applicable Rate times the actual
daily amount by which the Aggregate Commitments exceed the sum of (i)
the Outstanding Amount of Committed Loans and (ii) the Outstanding
Amount of L/C Obligations. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one
or more conditions
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in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
Borrower acknowledges that Swing Line Loans outstanding from time to
time are not considered Committed Loans in calculating the commitment
fee.
(b) Other Fees. Borrower shall pay to Arranger and Agent for
their own respective accounts, in Dollars, fees in the amounts and at
the times specified in the letter agreement, dated July 31, 2003 (the
"Fee Letter"), among Borrower, Arranger and Agent. Such fees shall be
fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's prime
rate shall be made on the basis of a year of 365 or 366 days, as the case may
be. All other computations of interest and all fees shall be made on the basis
of a year of 360 days and the actual number of days elapsed, (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365 day year), or, in the case of interest in respect of Committed Loans
denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice. Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan,
or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender
and by Agent in the ordinary course of business. The accounts or
records maintained by Agent and each Lender shall be conclusive absent
manifest error of the amount of the Credit Extensions made by Lenders
to Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise
affect the obligation of Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts and
records of Agent in respect of such matters, the accounts and records
of Agent shall control in the absence of manifest error. Upon the
request of any Lender made through Agent, Borrower shall execute and
deliver to such Lender (through Agent) a Note, which shall evidence,
such Lender's Loans, in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date,
Type (if applicable), amount and maturity of the applicable Loans and
payments with respect thereto.
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(b) In addition to the accounts and records referred to in
subsection (a), each Lender and Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and
sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and
records maintained by Agent and the accounts and records of any Lender
in respect of such matters, the accounts and records of Agent shall
control in the absence of manifest error.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein and except with
respect to principal of and interest on Loans denominated in an
Alternative Currency, all payments by Borrower hereunder shall be made
to Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Agent's Office in Dollars and in
Same Day Funds not later than 2:00 p.m., Chicago time, on the date
specified herein. Except as otherwise expressly provided herein, all
payments by Borrower hereunder with respect to principal and interest
on Loans denominated in an Alternative Currency shall be made to Agent,
for the account of the respective Lenders to which such payment is
owed, at the applicable Agent's Office in such Alternative Currency and
in Same Day Funds not later than the Applicable Time specified by Agent
on the dates specified herein. If, for any reason, Borrower is
prohibited by any Law from making any required payment hereunder in an
Alternative Currency, Borrower shall make such payment in Dollars in
the Dollar Equivalent of the Alternative Currency payment amount. Agent
will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender's Lending Office. All payments
received by Agent (i) after 1:00 p.m., Chicago time, in the case of
payments in Dollars, or (ii) after the Applicable Time specified by
Agent in the case of payments in an Alternative Currency, shall in each
case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
On each date when the payment of any principal, interest or
fees are due hereunder or under any Note, Borrower agrees to maintain
on deposit in an ordinary checking account (or primary concentration
account if so designated by Borrower) maintained by Borrower with Agent
(as such account shall be designated by Borrower in a written notice to
Agent from time to time, the "Borrower Account") an amount sufficient
to pay such principal, interest or fees in full on such date. Borrower
hereby authorizes Agent (A) to deduct automatically all principal,
interest or fees when due hereunder or under any Note from Borrower
Account, and (B) if and to the extent any payment of principal,
interest or fees under this Agreement or any Note is not made when due
to deduct any such amount from any or all of the accounts of Borrower
maintained at Agent. Agent agrees to provide written notice to Borrower
of any automatic deduction made pursuant to this Section 2.12(a)(ii)
showing in reasonable detail the amounts of such deduction. Lenders
agree to reimburse Borrower based on their Pro Rata Share for any
amounts deducted from such accounts in excess of amount due hereunder
and under any other Loan Documents.
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(b) If any payment to be made by Borrower shall come due on a
day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected
in computing interest or fees, as the case may be.
(c) Unless Borrower or any Lender has notified Agent, prior to
the date any payment is required to be made by it to Agent hereunder,
that Borrower or such Lender, as the case may be, will not make such
payment, Agent may assume that Borrower or such Lender, as the case may
be, has timely made such payment and may (but shall not be so required
to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not
in fact made to Agent in Same Day Funds, then:
(i) if Borrower failed to make such payment,
each Lender shall forthwith on demand repay to Agent the
portion of such assumed payment that was made available to
such Lender in Same Day Funds, together with interest thereon
in respect of each day from and including the date such amount
was made available by Agent to such Lender to the date such
amount is repaid to Agent in Same Day Funds, at the Applicable
Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment,
such Lender shall forthwith on demand pay to Agent the amount
thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by
Agent to Borrower to the date such amount is recovered by
Agent (the "Compensation Period") at a rate per annum equal to
the Applicable Overnight Rate from time to time in effect. If
such Lender pays such amount to Agent, then such amount shall
constitute such Lender's Committed Loan included in the
applicable Borrowing. If such Lender does not pay such amount
forthwith upon Agent's demand therefor, Agent may make a
demand therefor upon Borrower, and Borrower shall pay such
amount to Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any
rights which Agent or Borrower may have against any Lender as
a result of any default by such Lender hereunder.
A notice of Agent to any Lender or Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to Agent funds for any Loan
to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to Borrower by
Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the
terms hereof, Agent shall return such funds (in like funds as received
from such Lender) to such Lender, without interest.
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(e) The obligations of Lenders hereunder to make Committed
Loans and to fund participations in Letters of Credit and Swing Line
Loans are several and not joint. The failure of any Lender to make any
Committed Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Committed Loan or
purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will
obtain the funds for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of Committed 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 set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify Agent
of such fact, and (b) purchase from the other Lenders such participations in the
Committed 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 Committed 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. 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 set-off, but subject
to Section 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of Borrower in the amount of such participation. Agent
will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each
case notify Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other 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 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default or Event of Default, upon
notice to the Agent (which shall promptly notify Lenders), the Borrower
may from time to time request an increase in the Aggregate Commitments
up to an aggregate of $25,000,000. At the time
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of sending such notice, the Borrower (in consultation with the Agent)
shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from
the date of delivery of such notice to Lenders). Each Lender shall
notify the Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Pro Rata Share of such requested
increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment. The Agent shall
notify the Borrower and each Lender of Lenders' responses to each
request made hereunder. To achieve the full amount of a requested
increase, the Borrower may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance
with this Section, Agent and the Borrower shall determine the effective
date (the "Increase Effective Date") and the final allocation of such
increase. Agent shall promptly notify the Borrower and Lenders of the
final allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Borrower shall deliver to
Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and, (ii) in the case of the Borrower, including a Compliance
Certificate demonstrating pro forma compliance with Section 7.12 after
giving effect to such increase and (iii) certifying that, before and
after giving effect to such increase, the representations and
warranties contained in Article V are true and correct on and as of the
Increase Effective Date and no Default or Event of Default exists. The
Borrower shall deliver new or amended Committed Loan Notes reflecting
the increased Commitment of any Lender holding or requesting a Note.
Agent shall distribute an amended Schedule 2.01 (which shall be deemed
incorporated into this Agreement), to reflect any changes therein
resulting from such increase. The Borrower shall prepay any Committed
Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any
revised Pro Rata Shares arising from any nonratable increase in the
Commitments under this Section; provided that in the case of any
Committed Loans denominated in an Alternative Currency, no such
prepayment may be made other than on the last day of the applicable
Interest Period for such Committed Loans, unless Lenders consent
thereto.
(c) This Section shall supersede any provisions in Section
10.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
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(a) Any and all payments by Borrower to or for the account of
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 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 Agent or such Lender, as the case may
be, is organized or maintains a lending office (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter
referred to as "Taxes"). If Borrower shall be required by any Laws to
deduct any Taxes from or in respect of any sum payable under any Loan
Document to 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),
each of Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date
of such payment, Borrower shall furnish to Agent (which shall forward
the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, 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 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 Agent or any Lender, Borrower shall also pay to Agent or to
such Lender, at the time interest is paid, such additional amount that
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 Agent or such Lender would have received
if such Taxes or Other Taxes had not been imposed.
(d) Borrower agrees to indemnify 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) paid by 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, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. Payment under this subsection (d) shall be made within 30
days after the date Lender or Agent makes a demand therefor.
(e) Without limiting the obligations of the Lenders under
Section 10.15 regarding delivery of certain forms and documents to
establish each Lender's status for U.S.
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withholding tax purposes, each Lender agrees promptly to deliver to
Agent or Borrower, as Agent or Borrower shall reasonably request, on or
prior to the Closing Date, and in a timely fashion thereafter, such
other documents and forms required by any relevant taxing authorities
under the Laws of any other jurisdiction, duly executed and completed
by such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to
such Lender outside of the U.S. by Borrower pursuant to this Agreement
or otherwise to establish such Lender's status for withholding tax
purposes in such other jurisdiction. Each Lender shall promptly (i)
notify Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take
such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any such jurisdiction that Borrower
make any deduction or withholding for taxes from amounts payable to
such Lender. Additionally, Borrower shall promptly deliver to Agent or
any Lender, as Agent or such Lender shall reasonably request, on or
prior to the Closing Date, and in a timely fashion thereafter, such
documents and forms required by any relevant taxing authorities under
the Laws of any jurisdiction, duly executed and completed by Borrower,
as are required to be furnished by such Lender or Agent under such Laws
in connection with any payment by Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect
to such jurisdiction.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or
any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to Borrower through Agent, any obligation of such Lender
to make or continue Eurocurrency Rate Loans in the affected currency or
currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert
Base Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended until
such Lender notifies Agent and Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, Borrower shall,
upon demand from such Lender (with a copy to Agent), prepay or, if applicable
and such Loans are denominated in Dollars, convert all such Eurocurrency Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such
prepayment or conversion, Borrower shall also pay accrued interest on the amount
so prepaid or converted and all amounts due under Section 3.05 in accordance
with the terms thereof due to such prepayment or conversion. Each Lender agrees
to designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.
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3.03 INABILITY TO DETERMINE RATES. If Agent determines in
connection with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof for any reason that that (a) deposits (whether in Dollars
or an Alternative Currency) are not being offered to banks in the applicable
offshore interbank market for such currency for the applicable amount and
Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan (whether
denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to Lenders of funding such
Eurocurrency Rate Loan, Agent will promptly so notify Borrower and all Lenders.
Thereafter, the obligation of Lenders to make or maintain Eurocurrency Rate
Loans in the affected currency or currencies shall be suspended until Agent
revokes such notice. Upon receipt of such notice, Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing that,
will be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED 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 subsection (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, (iii) reserve requirements
contemplated by Section 3.04(c) or utilized in the determination of the
Eurocurrency Rate, and (iv) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected
in the Mandatory Cost, other than as set forth below) or the Mandatory
Cost, as calculated hereunder, does not represent the cost to such
Lender of complying with the requirements of the Bank of England and/or
the Financial Services Authority or the European Central Bank in
relation to its making, funding or maintaining of Eurocurrency Rate
Loans, then from time to time upon demand of such Lender (with a copy
of such demand to Agent), Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased
cost or reduction or, if applicable, the portion of such cost that is
not represented by the Mandatory Cost.
(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
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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 Agent), Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such
reduction.
(c) Borrower shall pay to each Lender as long as such Lender
shall be required to comply with any reserve ratio requirement or
analogous requirement of any central banking or financial regulatory
authority imposed in respect of the funding or maintenance of the
Commitments or the Eurocurrency Rate Loans, such additional costs
(expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five decimal places) equal to the actual costs allocated
to such Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan,
provided Borrower shall have received at least 15 days' prior notice
(with a copy to Agent) of such additional costs from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional costs shall be due and payable 15 days
from receipt of such notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to
Agent) from time to time, Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by Borrower; or
(c) any failure by Borrower to make payment of any Loan or
drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any
payment thereof in a different currency;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract. Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.
For purposes of calculating amounts payable by Borrower to Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate
Loan made by it at the Eurocurrency Base Rate used in determining the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
interbank market for such currency for a comparable amount and for a comparable
period, whether or not such Eurocurrency Rate Loan was in fact so funded.
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3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A
certificate of Agent or any Lender claiming compensation under this Article III
and setting forth the calculation of the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, Agent or such Lender may use any reasonable averaging
and attribution methods.
3.07 SURVIVAL. All of Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) Agent's receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to Agent and
its legal counsel:
(i) executed counterparts of this Agreement and
the Guaranty, sufficient in number for distribution to Agent,
each Lender and Borrower;
(ii) a Note executed by Borrower in favor of each
Lender requesting a Note;
(iii) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as Agent may require
evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party;
(iv) such documents and certificates as Agent may
reasonably require to evidence that each Loan Party is duly
organized or formed and that Borrower and each Guarantor is,
validly existing and in good standing in its jurisdiction of
organization;
(v) a favorable opinion of counsel to the Loan
Parties acceptable to Agent, addressed to Agent and each
Lender, as to such matters concerning the Loan Parties and the
Loan Documents in form and substance satisfactory to Agent;
(vi) a certificate of a Responsible Officer of
each Loan Party either (A) attaching copies of all consents,
licenses and approvals required in connection
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with the execution, delivery and performance by such Loan
Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses
and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so
required;
(vii) a certificate signed by a Responsible
Officer of Borrower certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, and
(B) that there has been no event or circumstance since the
date of the Audited Financial that has had or could reasonably
be expected to have a Material Adverse Effect, and (C) a
calculation of the financial covenants set forth in Section
7.12 as of the last day of the fiscal quarter of Borrower most
recently ended prior to the Closing Date (it being understood
that the Consolidated Leverage Ratio and the Consolidated
Fixed Charge Coverage Ratio shall be determined as set forth
in Section 7.12, and in the case of the Consolidated Leverage
Ratio. on a pro forma basis as if the Teccor Acquisition shall
have occurred at the beginning of the four fiscal quarters
most recently ended prior to the Closing Date);
(viii) evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained
and is in effect;
(ix) evidence that the Second Amended and
Restated Credit Agreement dated as of September 1, 1998, as
amended or modified, among Borrower, BankOne, N.A. (f//k/a The
First National Bank of Chicago), as agent and a syndicate of
lenders (the "Existing Credit Agreement") has been or
concurrently with the Closing Date is being terminated, and
that all loans and obligations thereunder have been paid in
full; and
(x) such other assurances, certificates,
documents, consents or opinions as Agent or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all
Attorney Costs of Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts
between Borrower and Agent).
(d) The Closing Date shall have occurred on or before August
29, 2003.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS AND CONVERSIONS AND
CONTINUATIONS. The obligation of each Lender to honor any Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type, or a continuation of Eurocurrency Rate Loans)
is subject to the following conditions precedent:
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(a) The representations and warranties of Borrower and each
other Loan Party contained in Article V or any other Loan Document, or
which are contained in any document furnished at any time under or in
connection herewith, shall be true and correct on and as of the date of
such Credit Extension, conversion or continuation, except to the extent
that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension, conversion or continuation.
(c) Agent shall have received a Request for Credit Extension
in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in
national or international financial, political or economic conditions
or currency exchange rates or exchange controls which in the reasonable
opinion of Agent would make it impracticable for such Credit Extension
to be denominated in the relevant Alternative Currency.
(e) Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as Agent or the Required Lenders
reasonably may require.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurocurrency Rate Loans) submitted by Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver, and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or licenses, except in each
case referred to in
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clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly
present the financial condition of Borrower and its Subsidiaries as of
the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein;
and (iii) show all material indebtedness and other liabilities, direct
or contingent, of Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of
Borrower and its Subsidiaries dated March 31, 2003, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein,
and ; (ii) fairly present the financial condition of Borrower and its
Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject in the case of clauses (i) and
(ii), to the absence of footnotes and to normal year-end audit
adjustments.
(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.
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5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06
hereto, there are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of Borrower and its Subsidiaries is subject to no
Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof Borrower has reasonably concluded that,
except as specifically disclosed in Schedule 5.09 hereto, such Environmental
Laws and claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrower, in such amounts, after giving effect to any self-insurance
compatible with the following standards, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where Borrower or the applicable
Subsidiary operates.
5.11 TAXES. Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
5.12 ERISA COMPLIANCE.
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(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state
Laws. Each Plan that is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS
with respect thereto and, to the best knowledge of Borrower, nothing
has occurred which would prevent, or cause the loss of, such
qualification. Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect
to any Plan.
(b) There are no pending or, to the best knowledge of
Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability that
could reasonably be expected to have a Material Adverse Effect; (iii)
neither Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243
of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower
nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date, Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13 and has no equity investments in any other corporation or entity other than
those specifically disclosed in Part(b) of Schedule 5.13.
5.14 DISCLOSURE. Borrower has disclosed to Agent and Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party in connection with any Loan Document to Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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5.15 COMPLIANCE WITH LAWS. Borrower, each Subsidiary and each other
Loan Party is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.16 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the
FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each
Borrowing or drawing under each Letter of Credit, not more than 25% of
the value of the assets (either of Borrower only or of Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of
Section 7.01 or Section 7.05 or subject to any restriction contained in
any agreement or instrument between Borrower and any Lender or any
Affiliate of any Lender relating to Indebtedness and within the scope
of Section 8.01(e) will be margin stock.
(b) None of Borrower, any Person Controlling 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.
5.17 TAX SHELTER REGULATIONS. Borrower does not intend to treat the
Loans and/or Letters of Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4). In
the event Borrower determines to take any action inconsistent with such
intention, it will promptly notify Agent thereof. If Borrower so notifies Agent,
Borrower acknowledges that one or more of Lenders may treat its Committed Loans
and/or its interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary
to:
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6.01 FINANCIAL STATEMENTS. Deliver to Agent a sufficient number of
copies for delivery by Agent to each Lender, of the following, in form and
detail satisfactory to Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of Borrower, a consolidated balance
sheet of Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by 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 Borrower, a consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for such fiscal quarter and for the portion of
Borrower's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of
the previous fiscal year and the corresponding portion of the previous
fiscal year, all in reasonable detail and certified by a Responsible
Officer of Borrower as fairly presenting the financial condition,
results of operations, shareholders equity and cash flows of Borrower
and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event not later than the
last Business Day in February of each year, a copy of the plan and
forecast (including a projected consolidated and consolidating balance
sheet, income statement and funds flow statement) of Borrower and its
Subsidiaries for such year.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to Agent a sufficient
number of copies for delivery to each Lender, of the following, in form and
detail satisfactory to Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of 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 (b), a duly completed Compliance
Certificate signed by a Responsible Officer of Borrower;
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(c) promptly after any request by Agent or any Lender, copies
of any audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of
directors) of Borrower by independent accountants in connection with
the accounts or books of Borrower or any Subsidiary, or any audit of
any of them;
(d) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of Borrower, and copies of all
annual, regular, periodic and special reports and registration
statements which Borrower may file or be required to file with the
Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be
delivered to Agent pursuant hereto; and
(e) promptly after Borrower has notified Agent of any
intention by Borrower to treat the Loans and/or Letters of Credit and
related transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), a duly completed copy
of IRS Form 8886 or any successor form.
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary, or compliance with the terms of the Loan Documents, as
Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(d) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Company's website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such documents
are posted on the Company's behalf on IntraLinks/IntraAgency or another relevant
website, if any, to which each Lender and Agent have access (whether a
commercial, third-party website or whether sponsored by Agent); provided that:
(i) the Company shall deliver paper copies of such documents to Agent or any
Lender that requests the Company to deliver such paper copies until a written
request to cease delivering paper copies is given by Agent or such Lender and
(ii) the Company shall notify (which may be by facsimile or electronic mail)
Agent and each Lender of the posting of any such documents and provide to Agent
by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Company shall
be required to provide paper copies of the Compliance Certificates required by
Section 6.02(c) to Agent. Except for such Compliance Certificates, Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Company 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 notify Agent and each Lender:
(a) of the occurrence of any Default;
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(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation
of Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of Borrower setting forth details of the occurrence referred
to therein and stating what action Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization, except (i) in a transaction
permitted by Section 7.04 or 7.05, and (ii) in the case of Subsidiaries, where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
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6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of Borrower, insurance with respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days'
prior notice to Agent of termination, lapse or cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws, and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets and
business of Borrower or such Subsidiary, as the case may be; and (b) maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of Agent and each Lender to visit and inspect any of its properties,
to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to Borrower; provided, however, that when a Default exists Agent or any Lender
(or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of Borrower at any time during normal
business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (i)
to finance Permitted Acquisitions; (ii) for working capital, (iii) for capital
expenditures, and (iv) for other general corporate purposes not in contravention
of any Law or of any Loan Document.
6.12 GUARANTORS. Notify Agent at the time that any Person becomes a
Domestic Subsidiary, and promptly thereafter (and in any event within 30 days),
cause such Person to (a) become a Guarantor by executing and delivering Agent a
counterpart of the Guaranty or such other document as Agent shall deem
appropriate for such purpose, and (b) deliver to Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to Agent.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
7.01 hereto and any renewals or extensions thereof, provided that the
property covered thereby is not increased and any renewal or extension
of the obligations secured or benefited thereby is permitted by Section
7.03(b);
(c) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of
the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with
GAAP;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) or securing
appeal or other surety bonds relating to such judgments; and
(i) liens securing Indebtedness permitted under Section
7.03(e); provided that (i) such Liens do not at any time encumber any
property other than the property financed by
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such Indebtedness and (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by Borrower or such Subsidiary in the
form of cash equivalents or short-term marketable debt securities;
(b) Permitted Acquisitions;
(c) Investments of Borrower in any Guarantor which is a
wholly-owned Domestic Subsidiary and Investments of any Guarantor in
Borrower or in another Guarantor which is a wholly-owned Subsidiary;
(d) Investments of any Foreign Subsidiary in any other Foreign
Subsidiary or in Borrower or any wholly-owned Guarantor;
(e) Investments of Borrower or any Guarantor in any Foreign
Subsidiary; provided, however, that such Investments to the extent made
after the Closing Date shall not at any time exceed 15% of Consolidated
Net Worth at such time;
(f) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof
from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss; and
(g) Guarantees permitted by Section 7.03;
it being understood that the Guarantee by Borrower of obligations of
Subsidiaries that are permitted to be incurred under this Agreement shall not be
deemed Investments restricted by this Section 7.02.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 hereto and any refinancings, refundings, renewals or
extensions thereof; provided that the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder;
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(c) Guarantees of Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of Borrower or any
Subsidiary;
(d) obligations (contingent or otherwise) of Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that
(i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed assets within the
limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed 5% of Consolidated Net Worth at such time; and
(f) such additional unsecured Indebtedness incurred by
Borrower or any Subsidiary as would not cause the Consolidated Leverage
Ratio to exceed 2.50 to 1.0 as of the date of incurrence.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with or into, another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) Borrower, provided that
Borrower shall be the continuing or surviving Person, or (ii) any one
or more other Subsidiaries, provided that when any wholly-owned
Subsidiary is merging with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person, and further
provided that if a Guarantor is merging with another Subsidiary, the
Guarantor shall be the continuing or surviving Person; and
(b) any Subsidiary may dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise), to Borrower or to
another Subsidiary; provided that if the transferor in such a
transaction is a wholly-owned Subsidiary, then the transferee must also
be a wholly-owned Subsidiary, and further provided that if the
transferor of such assets is a Guarantor, the transferee thereof must
either be Borrower or a Guarantor;
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of
business;
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(c) Dispositions of equipment or real property to the extent
that (i) such property is exchanged for credit against the purchase
price of similar replacement property, or (ii) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of
such replacement property;
(d) Dispositions of property by any Subsidiary to Borrower or
to a wholly-owned Subsidiary, provided that if the transferor of such
property is a Guarantor, the transferee thereof must either be Borrower
or a Guarantor;
(e) Dispositions permitted by Section 7.04; and
(f) additional Dispositions provided that (i) such additional
Dispositions shall not in any fiscal year exceed 10% of the Borrower's
consolidated assets as of the beginning of such fiscal year, and (ii)
no Default or Event of Default shall exist immediately before or after
giving effect thereto;
provided, however, that any Disposition pursuant to clauses (a) through
(f) shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that:
(a) each Subsidiary may make Restricted Payments to Borrower
and to wholly-owned Subsidiaries (and, in the case of a Restricted
Payment by a non-wholly-owned Subsidiary, to Borrower and any
Subsidiary and to each other owner of capital stock or other equity
interests of such Subsidiary on a pro rata basis based on their
relative ownership interests);
(b) Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or
other common equity interests of such Person; and
(c) Borrower may declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire shares of its
capital stock or warrants, rights or options to acquire any such shares
for cash, provided that immediately after giving effect to such
proposed action, no Default or Event of Default shall exist.
To the extent Borrower shall have purchased or otherwise acquired shares of its
capital stock pursuant to this Section 7.06, nothing herein shall prohibit the
cancellation or retirement by Borrower of such shares.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by
Borrower and its Subsidiaries on the date hereof.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrower, whether or not in the ordinary course
of business, other than on fair and
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reasonable terms substantially as favorable to Borrower or such Subsidiary as
would be obtainable by Borrower or such Subsidiary at the time in a comparable
arm's length transaction with a Person other than an Affiliate, provided that
the foregoing restriction shall not apply to transactions between or among
Borrower and any of its wholly-owned Subsidiaries or between and among any
wholly-owned Subsidiaries.
7.09 MARGIN REGULATIONS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System of the United States)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.10 CAPITAL EXPENDITURES. If a Default or a Event of Default has
occurred and is continuing, expend, or be committed to expend for Consolidated
Capital Expenditures (including, without limitation, for the acquisition of
fixed assets) during any fiscal year in excess of the amount of Consolidated
Capital Expenditures estimated to be expended in such fiscal year by Borrower in
the projections delivered to the Lenders pursuant to Section 6.01(c).
7.11 LEASE AND RENTAL EXPENSE. Permit the aggregate payments due in
any fiscal year under all operating leases (including leases for real or
personal property) to exceed $10,000,000.
7.12 FINANCIAL COVENANTS
(a) Consolidated Net Worth. Permit Consolidated Net Worth at
the end of any fiscal quarter to be less than the sum of (a)
$156,750,000, plus (b) an amount equal to 50% of the Consolidated Net
Income earned in each full fiscal quarter ending after June 30, 2003
(with no deduction for a net loss in any such fiscal quarter), plus (c)
an amount equal to 80% of the aggregate increases in Shareholders'
Equity of Borrower and its Subsidiaries after the date hereof by reason
of the issuance and sale of capital stock or other equity interests of
Borrower or any Subsidiary (other than issuances to Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt
securities of Borrower into such capital stock or other equity
interests.
(b) Consolidated Leverage Ratio. Permit its Consolidated
Leverage Ratio at the end of any fiscal quarter to exceed the ratio
applicable to such quarter, as follows:
Quarters Ending Ratio
--------------- -----
Before September 30, 2004 2.75:1.0
September 30, 2004 and thereafter 2.50:1.0
The Consolidated Leverage Ratio will be calculated at the end of each
fiscal quarter for which this Agreement requires Borrower to deliver
financial statements, using the results of the twelve month period
ending with that fiscal quarter, it being understood that to the extent
any Acquisition (including the Teccor Acquisition) shall have occurred
during
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such period, the Consolidated Leverage Ratio shall be calculated as if
such Acquisition occurred at the beginning of such period. Without
double counting, in the case of the Teccor Acquisition, for each of the
first four consecutive fiscal quarter periods ending after the date
hereof, the Consolidated Leverage Ratio shall be calculated to reflect
the Teccor Pro Forma EBITDA applicable to such period, as set forth in
the definition of Teccor Pro Forma EBITDA.
(c) Consolidated Fixed Charge Coverage Ratio. Permit its
Consolidated Fixed Charge Coverage Ratio at the end of any fiscal
quarter to be less than 3.5:1.0.
The Consolidated Fixed Charge Coverage Ratio will be calculated at the
end of each fiscal quarter for which this Agreement requires Borrower
to deliver financial statements, using the results of the twelve month
period ending with that fiscal quarter.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, and in the currency
required hereunder, any amount of principal of any Loan, or any L/C
Obligation, or (ii) within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any commitment or
other fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 6.01, 6.02,
6.03, 6.05, 6.10, 6.11 or Article VII ; or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days or any default or event
of default occurs under any other Loan Document; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when
made or deemed made; or
(e) Cross-Default. (i) Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, 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
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creditors under any combined or syndicated credit arrangement) of more
than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made prior to its stated maturity, or such Guarantee
to become payable or cash collateral in respect thereof to be demanded;
or (ii) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which
Borrower or any Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or
an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer
does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of
a pending appeal or otherwise, is not in effect; or
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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party
or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control with
respect to Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs, Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and
any obligation of Agent to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
Borrower;
(c) require that Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount
thereof); and
(d) exercise on behalf of itself and Lenders all rights and
remedies available to it and Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
Agent to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of
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Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of Agent or any
Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
Lenders in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among Lenders in
proportion to the respective amounts described in this clause Fourth held by
them;
Fifth, to Agent, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF AGENT. Each Lender hereby
irrevocably appoints, designates and authorizes 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
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provision to the contrary contained elsewhere herein or in any other Loan
Document, Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall 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 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 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. All
benefits and immunities provided to Agent in this Article IX shall apply to
Agent as issuer of Letters of Credit and provider of Swing Line Loans with
respect to any acts taken or omissions suffered by Agent in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters of
Credit and any Swing Line Loans made by Agent, and as additionally provided
herein with respect to Agent as issuer of letters of Credit and provider of
Swing Line Loans.
9.02 DELEGATION OF DUTIES. 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. Agent
shall not 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. Any such agent, sub-agent or other Person retained or employed
pursuant to this Section 9.02 shall have all the benefits and immunities
provided to Agent in this Article IX with respect to any acts taken or omissions
suffered by such Person in connection herewith or therewith, as fully as if the
term "Agent" as used in this Article IX and in the definition of "Agent-Related
Person" included such additional Persons with respect to such acts or omissions.
9.03 LIABILITY OF AGENT. 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 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 AGENT.
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(a) 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 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 Agent. 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 all 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. 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 by any instance), and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all 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 Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
9.05 NOTICE OF DEFAULT. Agent shall not 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 Agent for the
account of Lenders, unless Agent shall have received written notice from a
Lender or Borrower referring to this Agreement, describing such Default and
stating that such notice is a "notice of default." Agent will notify Lenders of
its receipt of any such notice. Agent 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 Agent has received any
such direction, Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENT. Each
Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by 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 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
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transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to Borrower and the other Loan Parties 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 Borrower and the other Loan Parties.
Except for notices, reports and other documents expressly required to be
furnished to Lenders by Agent herein, 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 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 AGENT. Whether or not the transactions
contemplated hereby are consummated, 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 been caused primarily by
such Agent-Related Person's own gross negligence or willful misconduct; it being
agreed by all Lenders 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. Without limitation of the foregoing,
each Lender shall reimburse Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs and costs and expenses in
connection with the use of IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement) incurred by 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 Agent is not
reimbursed for such expenses by or on behalf of Borrower. The undertaking in
this Section shall survive termination of the Aggregate Commitments, the payment
of all other Obligations and the resignation of Agent.
9.08 AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America and its
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 Bank of America were
not Agent hereunder and without notice to or consent of Lenders. Lenders
acknowledge that, pursuant to such activities, Bank of America or its 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 Agent shall be under no
obligation to provide such information to them. With respect to its
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Loans, Bank of America 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 Agent, and the terms "Lender" and "Lenders" include Bank of America
in its individual capacity.
9.09 SUCCESSOR AGENT. Agent may resign as Agent upon 30 days'
written notice to Lenders and Borrower; provided that any such resignation by
Bank of America shall also constitute its resignation as Agent in its capacity
of issuer of Letters of Credit and provider of Swing Line Loans. If Agent
resigns under this Agreement, the Required Lenders shall appoint from among
Lenders a successor Agent for Lenders, which successor Agent shall be consented
to by Borrower at all times other than during the existence of a Default (which
consent of Borrower shall not be unreasonably withheld or delayed). If no
successor Agent is appointed prior to the effective date of the resignation of
Agent, Agent may appoint, after consulting with Lenders and Borrower, a
successor Agent from among 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 (including
those in its capacity as issuer of Letters of Credit and provider of Swing Line
Loans) and the term "Agent" shall mean such successor Agent in all such
capacities and the retiring Agent's appointment, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part of
such retiring Agent or any other Lender, other than the obligation of the
successor Agent 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 Agent to effectively assume the
obligations of the retiring Agent 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 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
Lenders shall perform all of the duties of Agent hereunder until such time, if
any, as the Required Lenders appoint a successor agent as provided for above.
9.10 AGENT 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,
Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether Agent shall have made any demand on Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of Lenders and Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of
Lenders and Agent and their respective agents and counsel and all other
amounts due Lenders and Agent under Sections 2.03(i) and (j), 2.09 and
10.04) allowed in such judicial proceeding; and
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(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 Agent and, in the event that
Agent shall consent to the making of such payments directly to Lenders, to pay
to Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of Agent and its agents and counsel, and any other amounts due
Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize Agent to vote in respect of the
claim of any Lender in any such proceeding
9.11 GUARANTY MATTERS. Each Lender hereby irrevocably authorizes
Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder. Upon request by Agent at any time,
each Lender will confirm in writing Agent's authority to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and Borrower or the applicable Loan Party, as the
case may be, and acknowledged by Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without
the written consent of each Lender; provided, however, in the sole
discretion of Agent, only a waiver by Agent shall be required with
respect to immaterial matters or items specified in Section 4.01(a)
(iii) or (iv) with respect to which Borrower has given assurances
satisfactory to Agent that such items shall be delivered promptly
following the Closing Date;
(b) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.02) without
the written consent of such Lender, except for any such extension or
increase made in accordance with Section 2.14;
(c) postpone any date fixed by this Agreement or any other
Loan Document for any payment (excluding mandatory prepayments) of
principal, interest, fees or other amounts due to Lenders (or any of
them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
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(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (ii) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary (i) to amend the
definition of "Default Rate" or to waive any obligation of Borrower to
pay interest at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender;
(f) amend Section 1.07 or the definition of "Alternative
Currency" without the written consent of each Lender;
(g) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; or
(h) release any Guarantor from the Guaranty without the
written consent of each Lender, except for (i) releases pursuant to
Section 9.11, and (ii) the release of any Guarantor neither the assets
nor revenues of which represent a material portion of the consolidated
assets or revenues of Borrower;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Agent in addition to Lenders required above, affect the
rights or duties of Agent under this Agreement or any other Loan Document, (A)
as Agent, (B) as provider of Swing Line Loans, or (C) as Letter of Credit issuer
or under any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it (including, without limitation, any reduction in
any fee, charge, expense, cost or other amount payable to Agent for its own
account under this Agreement in any such capacity); and (ii) Agent Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing executed
only by the respective parties thereto. Notwithstanding anything to the contrary
herein, No Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder 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 subsection (c) below) 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, specified for such
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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. 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, upon delivery; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid;
(C) if delivered by facsimile, when sent and the sender has received
electronic confirmation of error free receipt; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices
and other communications to Agent pursuant to Article II shall not be
effective until actually received by Agent. 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, Agent and Lenders.
Agent 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 to distribute Loan
Documents for execution by the parties thereto, and may not be used for
any other purpose.
(d) Reliance by Agent and Lenders. Agent and Lenders shall be
entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any
confirmation thereof. Borrower shall indemnify 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 Borrower. All telephonic notices to and other
communications with Agent may be recorded by Agent, and each of the
parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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10.04 ATTORNEY COSTS, EXPENSES AND TAXES. Borrower agrees (a) to pay
or reimburse Agent for all costs and expenses incurred in connection with the
development, preparation, negotiation 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
and costs and expenses in connection with the use of IntraLinks, Inc. or other
similar information transmission systems in connection with this Agreement, and
(b) to pay or reimburse Agent and each Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. 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 Agent and the cost of
independent public accountants and other outside experts retained by Agent or
any Lender. The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY BORROWER. Whether or not the transactions
contemplated hereby are consummated, Borrower shall indemnify and hold harmless,
to the fullest extent permitted by law, 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 Agent to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by Borrower, any Subsidiary or any other
Loan Party, or any Environmental Liability related in any way to 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 Indemnitee is
a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demand, 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
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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 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 Closing Date). The agreements in this Section shall survive
the resignation of Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations. All amounts due under this Section 10.05 shall be payable
within ten Business Days after demand therefor.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of Borrower is made to Agent or any Lender, or Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such set-off
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by 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 set-off had not occurred, and (b) each Lender severally agrees to pay to
Agent upon demand its applicable share of any amount so recovered from or repaid
by Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Applicable Overnight Rate from
time to time in effect, in the applicable currency of such recovery or payment.
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 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
subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section (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 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 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 subsection (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
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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, the
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption Agreement with
respect to such assignment is delivered to Agent, shall not be less
than $5,000,000 unless each of Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (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 apply to rights in
respect of outstanding Swing Line Loans, (iii) any assignment of a
Commitment must be approved by Agent, unless the Person that is the
proposed assignee is itself a Lender (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 Agent an
Assignment and Assumption Agreement, together with a processing and
recordation fee of $3,500. Subject to acceptance and recording thereof
by Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption Agreement,
the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption
Agreement, 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 Agreement, be
released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption Agreement 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 date of such
assignment). Upon request, Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.
(c) Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at Agent's Office a copy of each Assignment
and Assumption Agreement delivered to it and a register for the
recordation of the names and addresses of Lenders, and the Commitments
of, and principal amount of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and
Borrower, Agent and Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by
Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
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(d) Any Lender may, without the consent of, or notice to,
Borrower or Agent, sell participations to any Person (other than a
natural person or Borrower or any of Borrower's Affiliates or
Subsidiaries (each a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations and/or Swing Line Loans)
owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (iii) Borrower, Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first provision to
Section 10.01 that directly affects such Participant. Subject to
subsection (e) of this Section, Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 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 Borrower's prior written consent.
(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 a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
(g) If the consent of Borrower to an assignment to an Eligible
Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment threshold specified in
clause (i) of the proviso to the first sentence of Section 10.07(b)),
Borrower shall be deemed to have given its consent five Business Days
after the date notice thereof has been delivered to Borrower by the
assigning Lender (through Agent) unless such consent is expressly
refused by Borrower prior to such fifth Business Day.
(h) As used herein, "Eligible Assignee" means (a) a Lender;
(b) an Affiliate of a Lender; and (c) any other Person (other than a
natural Person) approved by (i) Agent and (ii) unless an Event of
Default has occurred and is continuing, Borrower (such approval
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referred to in (i) and (ii) not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include Borrower or any of Borrower's Affiliates or
Subsidiaries.
(i) Notwithstanding anything to the contrary contained herein,
if at any time Bank of America assigns all of its Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon 30
days' notice to Borrower and Lenders, resign in its capacity as issuer
of Letters of Credit hereunder (the "L/C Issuer") and/or (ii) upon 30
days' notice to Borrower, resign in its capacity as provider of Swing
Line Loans ("Swing Line Lender"). In the event of any such resignation
as L/C Issuer or Swing Line Lender, Borrower shall be entitled to
appoint from among Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by Borrower to appoint
any such successor shall affect the resignation of Bank of America as
L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
resigns as L/C Issuer, it shall retain all the rights and obligations
of Agent as the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the
right to require Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
Bank of America resigns as Swing Line Lender, it shall retain all the
rights of Agent as 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
Lenders to make Base Rate Committed Loans or fund risk participations
in outstanding Swing Line Loans pursuant to Section 2.04(c). Borrower,
Lenders and Bank of America agree that they shall amend this Agreement
as necessary to reflect that Bank of America remains Agent for purposes
of administering this Agreement, but has resigned in its capacity as
L/C Issuer and/or Swing Line Lender and another Lender(s) shall
provides such service, including the obligation of the successor to
Bank of America as 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 Bank
of America to effectively assume the obligations of Bank of America
with respect to such Letters of Credit.
10.08 CONFIDENTIALITY. Each of Agent and Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any other Loan
Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or under any other
Loan Document; (f) subject to an agreement containing provisions substantially
the same as those of this Section, 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
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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 a Loan Party; (g) with the
consent of Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to Agent or any Lender on a nonconfidential basis from a source other
than Borrower; or (i) to the National Association of Insurance Commissioners or
any other similar organization. In addition, Agent and 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 Agent and 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, "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 Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party;
provided that, in the case of information received from any Loan Party after the
date hereof, such information is clearly identified in writing at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. In addition, Agent may disclose to
any agency or organization that assigns standard identification numbers to loan
facilities such basic information describing the facilities provided hereunder
as is necessary to assign unique identifiers (and, if requested, supply a copy
of this Agreement), it being understood that the Person to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to make available to the public only such Information as such person
normally makes available in the course of its business of assigning
identification numbers. Notwithstanding anything herein to the contrary,
"Information" shall not include, and Agent and each Lender may disclose to any
and all Persons, without limitation of any kind, any information with respect to
the "tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby.
10.09 SET-OFF. In addition to any rights and remedies of Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to Borrower or any other Loan Party, any such notice being waived
by 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 Agent or such Lender shall have made
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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 Borrower and Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
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 Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to Borrower. In determining whether the interest
contracted for, charged, or received by Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations
hereunder.
10.11 COUNTERPARTS. This Agreement 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.
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 Agent or 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 Agent and
each Lender, regardless of any investigation made by Agent or any Lender or on
their behalf and notwithstanding that 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
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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 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 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 Borrower
pursuant to this Agreement) or such other evidence satisfactory to
Borrower and 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 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 Borrower and Agent of any available
exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by Borrower
pursuant to this Agreement, (B) promptly notify 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 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 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 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
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for its own account with respect to a portion of any such sums
payable to such Lender.
(iii) 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
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;
and provided further that if Agent shall issue, amend or
extend any Letter of Credit from a branch or other office in
any jurisdiction at the request of (or with the consent of )
Borrower and Agent shall not be lawfully able or entitled to
satisfy the requirements of this Section 10.15(a) at the time
of issuance, amendment or extension of any Letter of Credit by
reason of the selection of such branch or office in such
jurisdiction, nothing in this Section 10.15(a) shall relieve
Borrower of its obligation to pay any amounts pursuant to
Section 3.01 owing to Agent.
(iv) 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 Borrower
is not required to pay additional amounts under this Section
10.15(a).
(b) Upon the request of Agent, each Lender that is a "United
States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to Agent two duly signed completed copies of IRS Form
W-9. If such Lender fails to deliver such forms, then 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 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 Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable
to Agent under this Section, and costs and expenses (including Attorney
Costs) of Agent. The obligation of the Lenders under this Section shall
survive the termination of the
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, repayment of all other Obligations hereunder and
the resignation of Agent.
10.16 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF ILLINOIS SITTING IN CHICAGO OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, BORROWER, AGENT AND EACH LENDER CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. BORROWER, 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.
BORROWER, 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.
10.17 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
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 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
10.19 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into
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another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is
given. The obligation of Borrower in respect of any such sum due from it to
Agent or Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by Agent of any sum
adjudged to be so due in the Judgment Currency, Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to Agent from Borrower in the Agreement Currency, Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify Agent or the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than the
sum originally due to Agent in such currency, Agent agrees to return the amount
of any excess to Borrower (or to any other Person who may be entitled thereto
under applicable law).
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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.
LITTELFUSE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-1
BANK OF AMERICA, N.A., as
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Second Vice President
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
By: /s/ ▇▇▇▇▇▇▇▇▇ Pass
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ Pass
Title: Vice President
S-2
SCHEDULE 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority
which replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by
Agent as a weighted average of Lenders' Additional Cost Rates (weighted
in proportion to the percentage participation of each Lender in the
relevant Loan) and will be expressed as a percentage rate per annum.
Agent will, at the request of Borrower or any Lender, deliver to
Borrower or such Lender as the case may be, a statement setting forth
the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office
in a Participating Member State will be the percentage notified by that
Lender to Agent. This percentage will be certified by such Lender in
its notice to Agent as the cost (expressed as a percentage of such
Lender's participation in all Loans made from such Lending Office) of
complying with the minimum reserve requirements of the European Central
Bank in respect of Loans made from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office
in the United Kingdom will be calculated by Agent as follows:
(a) in relation to any Loan in Sterling:
AB+C(B-D)+E x 0.01 per cent per annum
------------------
100 - (A+C)
(b) in relation to any Loan in any currency other than Sterling:
E x 0.01 per cent per annum
--------
300
Where:
"A" is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable
Rate, the Mandatory Cost and any interest charged on overdue
amounts pursuant to the first sentence of Section 2.08(b) and,
in the case of interest (other than on overdue amounts)
charged at the Default Rate, without counting any increase in
interest rate effected by the charging of the Default Rate)
payable for the relevant Interest Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of
England to Agent on interest bearing Special Deposits.
"E" is designed to compensate Lenders for amounts payable under
the Fees Regulations and is calculated by Agent as being the
average of the most recent rates of charge supplied by Lenders
to Agent pursuant to paragraph 7 below and expressed in pounds
per L1,000,000.
1. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "Fees Regulations" means the FSA Supervision Manual or such
other law or regulation as may be in force from time to time
in respect of the payment of fees for the acceptance of
deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Regulations under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant
to the Fees Regulations but taking into account any applicable
discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Regulations.
2. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5% will be included in the formula as
5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
3. If requested by Agent or Borrower, each Lender with a Lending Office in
the United Kingdom or a Participating Member State shall, as soon as
practicable after publication by the Financial Services Authority,
supply to Agent and Borrower, the rate of charge payable by such Lender
to the Financial Services Authority pursuant to the Fees Regulations in
respect of the relevant financial year of the Financial Services
Authority
-2-
(calculated for this purpose by such Lender as being the average of the
Fee Tariffs applicable to such Lender for that financial year) and
expressed in pounds per L1,000,000 of the Tariff Base of such
Lender.
4. Each Lender shall supply any information required by Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
in writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the
Lending Office out of which it is making available its
participation in the relevant Loan; and
(b) any other information that Agent may reasonably require for
such purpose.
Each Lender shall promptly notify Agent in writing of any change to the
information provided by it pursuant to this paragraph.
5. The percentages or rates of charge of each Lender for the purpose of A,
C and E above shall be determined by Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies Agent to the contrary, each
Lender's obligations in relation to cash ratio deposits, Special
Deposits and the Fees Regulations are the same as those of a typical
bank from its jurisdiction of incorporation with a Lending Office in
the same jurisdiction as such Lender's Lending Office.
6. Agent shall have no liability to any Person if such determination
results in an Additional Cost Rate which over- or under-compensates any
Lender and shall be entitled to assume that the information provided by
any Lender pursuant to paragraphs 3, 7 and 8 above is true and correct
in all respects.
7. Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender
pursuant to paragraphs 3, 7 and 8 above.
8. Any determination by Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
9. Agent may from time to time, after consultation with Borrower and
Lenders, determine and notify to all parties any amendments which are
required to be made to this Schedule in order to comply with any change
in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all
or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all parties
hereto.
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SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
----------------------------------------------------------------------
Bank of America, N.A. $20,000,000 40.000000000%
The Northern Trust Company $15,000,000 30.000000000%
National City Bank of Michigan/Illinois $15,000,000 30.000000000%
Total $50,000,000 100.000000000%
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SCHEDULE 5.06
LITIGATION
NONE.
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SCHEDULE 5.09
ENVIRONMENTAL MATTERS
NONE.
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SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
JURISDICTION OF
SUBSIDIARIES INCORPORATION % OWNERSHIP
------------ ------------- -----------
Watseka LF, Inc. United States 100%
Teccor Electronics, Inc. United States 100%
Teccor Delaware, Inc. United States 100%
Teccor Electronics, LP United States 100%
Teccor Electronics Mexico Holdings LLC United States 100%
Teccor de Mexico S. de ▇.▇. de C.V. Mexico 100%
Littelfuse S.A. de C.V. Mexico 100%
Littelfuse do Brasil Ltda Brazil 100%
Littelfuse do Amazonia, Ltda. Brazil 100%
Littelfuse, B.V. Netherlands 100%
REMPAT Holding B.V. Netherlands 100%
REMPAT Financial B.V. Netherlands 100%
Littelfuse Ireland Holding Ltd. Ireland 100%
Littelfuse Ireland Limited Ireland 100%
Littelfuse Ireland Development Co., Ltd. Ireland 100%
Littelfuse Ireland Holding Ltd. Ireland 100%
Littelfuse, A.G. Switzerland 100%
Littelfuse Limited United Kingdom 100%
Littelfuse U.K. Ltd. United Kingdom 100%
-1-
Part (a). Subsidiaries. (continued)
JURISDICTION OF
SUBSIDIARIES INCORPORATION % OWNERSHIP
------------ ------------- -----------
Littelfuse GMBH Germany 100%
Littelfuse Far East Pte Ltd. Singapore 100%
Littelfuse HK Limited Peoples Republic of China 100%
Suzhou Littelfuse OVS Ltd. Peoples Republic of China 100%
Littelfuse KK Japan 100%
Littelfuse Triad Inc. South Korea 99%
Littelfuse Phils Inc. Philippines 100%
Littelfuse S&L, Inc. Taiwan 95%
Part (b). Other Equity Investments.
NONE.
-2-
SCHEDULE 7.01
EXISTING LIENS
NONE.
-1-
SCHEDULE 7.03
EXISTING INDEBTEDNESS
Notes Payable
LITTELFUSE, INC.
Due To: Principal Life Insurance Company,
Nationwide Life Insurance Company,
American Life Insurance Company,
TMG Life Insurance Company,
Beneficial Life Insurance Company.
Original Principal Amount: $60,000,000
Outstanding Principal $30,000,000
Amount on August 25, 2003:
Interest Rate: 6.16%
Payment Terms: Interest Quarterly (March, June, September,
December)
Principal Annually as Follows:
9-1-99 $ 5,000,000
9-1-00 $ 5,000,000
9-1-01 $10,000,000
9-1-02 $10,000,000
9-1-03 $10,000,000
9-1-04 $10,000,000
9-1-05 $10,000,000
Final Payment Date: 9-1-05
LITTELFUSE, INC.
Due To: Bank One, NA
Original Principal Amount: $55,000,000
Outstanding Principal $16,000,000
Amount on August 25, 2003:
Interest Rate: Variable depending on type of loan
Payment Terms: Open revolver line of credit, no revolver
principal payments are required until the line
matures on August 31, 2003
Final Payment Date: 8-31-03
-1-
LITTELFUSE KK
Due To: Bank One
Original Principal Amount: JPY 900,000,000 (Japanese Yen)
Outstanding Principal JPY 900,000,000 (Japanese Yen)
Amount on August 25, 2003:
Interest Rate: 90 day TIBOR + .085%
Final Payment Date: 8/29/03
Mortgages
LITTELFUSE, A.G.
Due To: SoBa, Grenchen
Original Principal Amount: CHF 1,000,000 (Swiss Francs)
Outstanding Principal
Amount on July 31, 2003: CHF 400,000 (Swiss Francs)
Interest Rate: 5.25% Sfr Bi-annually on principal
amount, plus interest
Final Payment Date: 3/31/07
Secured Property: Land and Building for plant in Grenchen,
Switzerland
Letters of Credit
LOC Ref. Cancel
Maturity Date No. Beneficiary Issue Date Amount Notice
15-Dec-96 S257086 Hartford 15-Dec-93 $ 255,000 60 days
(Amended 30-Dec-94) $ (105,000)
15-Dec-96 S257086 Hartford 30-Dec-93 $ 300,000 30 days
(Amended 30-Dec-94) $ 50,000
30-Dec-96 S260475 Hartford 30-Dec-94 $ 285,000 30 days
(Released 11-Jan-00) $ (285,000)
15-Dec-96 S257086 Hartford 14-Jan-96
(Released 30-Dec-94) $ 215,000 30 days
31-Dec-97 S257086 Hartford 27-Jan-97 $ 300,000
(Amended 27-Jan-97)
12-Jan-00 (Amended 5-Jan-00) $ (315,000)
(Amended 24-Jan-01) $ (400,000)
(Amended 21-Nov-02) $ (100,000)
Cigna / ACE 13-Jan-99 $ 491,000
24-Jan-00 365346 ACE 2000 Increase $ 393,188
25-Jan-01 365346 ACE 2001 Increase $ 124,612
10-Jan-03 365346 (Amended 10-Jan-03) $ (438,800)
29-Jan-02 326099 CHUBB $ 500,000
14-Jan-03 326099 (Amended 14-Jan-03) $ 610,000
----------
$1,880,000
-2-
Contingent additional purchase price related to the acquisition of Teccor
Electronics, Inc.
In connection with the acquisition of 100% of the shares of Teccor Electronics,
Inc. from Ranco Incorporated of Delaware ("Ranco") on July 7, 2003, Littelfuse,
Inc. agreed to pay an additional $5,000,000 of purchase price to Ranco on
January 31, 2006, in the event that sales of certain Littelfuse/Teccor products
exceeds a certain level in calendar 2005. If such sales level is not achieved,
no additional purchase price will be owed to Ranco.
-3-
SCHEDULE 10.02
ADDRESSES FOR NOTICES
LITTELFUSE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasury Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA
Address for Payments and Requests for Loans
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ 75202-3714
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Acct.#: ▇▇▇-▇▇▇▇-▇▇▇
Ref: Littelfuse, Inc., Attn: Credit Services
ABA: ▇▇▇-▇▇▇-▇▇▇
Account No. (for Euro): ▇▇▇▇▇▇▇▇
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Sterling): 65280027
Ref: Littelfuse, Inc., Attn: Credit Services
London Sort Code: 16-50-50
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Yen): 606490681046
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
Account No. (for Swiss Franc): 601490661012
Ref: Littelfuse, Inc., Attn: Credit Services
Swift Code: ▇▇▇▇▇▇▇▇
-1-
Address for Receiving Letter of Credit Applications and related correspondence
Standby Letters of Credit:
Trade Operations - Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code: IL1-231-17-00
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Riyaz Kaka
Vice President and Operations Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Commercial Letters of Credit
Trade Operations - Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code: IL1-231-17-00
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and Operations Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices as Agent:
Bank of America, N.A.
Agency Management
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: IL1-231-08-30
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and
Senior Agency Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices as a Lender:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-2-
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE NORTHERN TRUST COMPANY
Requests for Credit Extensions:
The Northern Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: C-4S
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Loan Operations Representative
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 312-630-1566
Account No. 5186401000
Ref: Littelfuse
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: B-2
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Second Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇@▇▇▇▇.▇▇▇
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
Requests for Credit Extensions:
National City Bank of Michigan/Illinois
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
CLSR
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-3-
Account No. 151804
Ref: Littelfuse, Inc.
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
National City Bank of Michigan/Illinois
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ Pass
Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-4-
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
26, 2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among Littelfuse, Inc. ("Borrower"),
Lenders from time to time party thereto, and Bank of America, N.A., as Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation
of Committed Loans
1. On __________________________________________ (a Business Day).
2. In the amount of $_________________________________.
3. Comprised of ______________________________________.
[Type of Committed Loan requested]
4. In the following currency: ________________________.
5. For Eurocurrency Rate Loans: with an Interest Period of ___
months.
[The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.01 of the Credit Agreement.]
LITTELFUSE, INC.
By: _________________________________
Name: _______________________________
Title:________________________________
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
26, 2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among Littelfuse, Inc., a Delaware
corporation ("Borrower"), Lenders from time to time party thereto, and Bank of
America, N.A., as Agent.
The undersigned hereby requests a Swing Line Loan:
1. On __________________________________________ (a Business Day).
2. In the amount of $____________________________.
The Swing Line Borrowing requested herein complies with the
requirements of the proviso to the first sentence of Section 2.04(a) of the
Credit Agreement.
LITTELFUSE, INC.
By: _________________________________
Name: _______________________________
Title:________________________________
B-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF NOTE
$______________ August 26, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to
pay to the order of _____________________________ or registered assigns
("Lender"), in accordance with the provisions of the Agreement (as hereinafter
defined) the principal amount of each Loan from time to time made by Lender to
Borrower under that certain Credit Agreement, dated as of August 26, 2003 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Agreement;" the terms defined therein being used herein as
therein defined), among Borrower, Lenders from time to time party thereto, and
Bank of America, N.A., as Agent.
Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to Agent for the account of
Lender in the currency in which such Committed Loan was denominated and in Same
Day Funds at Agent's Office for such currency. If any amount is not paid in full
when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before
as well as after judgment) computed at the per annum rate set forth in the
Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. This Note is also entitled to the
benefits of the Guaranty, if any. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by
Lender shall be evidenced by one or more loan accounts or records maintained by
Lender in the ordinary course of business. Lender may also attach schedules to
this Note and endorse thereon the date, amount, currency and maturity of its
Loans and payments with respect thereto.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
LITTELFUSE, INC.
By: _________________________________
Name: _______________________________
Title:________________________________
C-1
Form of Committed Loan Note
LOANS AND PAYMENTS WITH RESPECT THERETO
CURRENCY AMOUNT OF
AND PRINCIPAL OUTSTANDING
TYPE OF AMOUNT OF END OF OR INTEREST PRINCIPAL
LOAN LOAN INTEREST PAID THIS BALANCE NOTATION
DATE MADE MADE PERIOD DATE THIS DATE MADE BY
---------------------------------------------------------------------------------------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
--------- ----------- ----------- ----------- ----------- ----------- -----------
C-2
Form of Committed Loan Note
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ______________,
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
26, 2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Littelfuse, Inc. ("Borrower"), Lenders from
time to time party thereto, and Bank of America, N.A., as Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the __________________ of Borrower, and that, as such,
he/she is authorized to execute and deliver this Certificate to Agent on behalf
of Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement for the fiscal
year of Borrower ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of Borrower and
its Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of Borrower during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period Borrower performed and observed
all its Obligations under the Loan Documents, and
[SELECT ONE:]
D-1
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default
and its nature and status:]
4. THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER CONTAINED
IN ARTICLE V OF THE AGREEMENT, OR WHICH ARE CONTAINED IN ANY DOCUMENT FURNISHED
AT ANY TIME UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS, ARE TRUE AND CORRECT
ON AND AS OF THE DATE HEREOF, EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH CASE THEY ARE TRUE
AND CORRECT AS OF SUCH EARLIER DATE, AND EXCEPT THAT FOR PURPOSES OF THIS
COMPLIANCE CERTIFICATE, THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
SUBSECTIONS (a) AND (b) OF SECTION 5.05 OF THE AGREEMENT SHALL BE DEEMED TO
REFER TO THE MOST RECENT STATEMENTS FURNISHED PURSUANT TO CLAUSES (a) AND (b),
RESPECTIVELY, OF SECTION 6.01 OF THE AGREEMENT, INCLUDING THE STATEMENTS IN
CONNECTION WITH WHICH THIS COMPLIANCE CERTIFICATE IS DELIVERED.
5. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_______________, ____________.
LITTELFUSE, INC.
By: ___________________________
Name: __________________________
Title:__________________________
D-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
I. SECTION 7.10 - LEASE AND OTHER COVENANTS RENTAL EXPENSE.
A. Aggregate payments due under operating leases (including leases $_____________
for real or personal property) for fiscal year ending ___________:
B. Maximum permitted lease and rental expenses for fiscal year: $ 10,000,000
C. Excess (deficient) for covenant compliance (Line I.A - I.B): $_____________
II. SECTION 7.12(a) CONSOLIDATED NET WORTH.
A. Actual Consolidated Net Worth at Statement Date:
1. Shareholder's Equity $_____________
B. Opening Amount $ 156,750,000
C. 50% of Consolidated Net Income for each full fiscal quarter ending $_____________
after June 30, 2003 (no reduction for losses):
D. 80% of increases in Shareholders' Equity after date of Agreement $_____________
from issuance and sale of capital stock or other equity interests
(including from conversion of debt securities):
E. Minimum required Consolidated Net Worth $_____________
(Lines II.B + II.C + II.D) for Subject Period:
F. Excess (deficient) for covenant compliance (Line II.A - II.E): $_____________
III. SECTION 7.12(b) - CONSOLIDATED LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $_____________
B. Consolidated EBITDA for four consecutive fiscal quarters ending on $_____________
above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $_____________
2. Consolidated Interest Charges for Subject Period: $_____________
3. Provision for income taxes for Subject Period: $_____________
4. Depreciation expenses for Subject Period: $_____________
5. Amortization expenses for Subject Period: $_____________
6. Plus Non-cash reductions of Consolidated Net Income for $_____________
Subject Period:
D-3
7. Minus Non-cash additions to Consolidated Net Income for $_____________
Subject Period:
8. Consolidated EBITDA (Lines III.B.1 + 2 + 3 + 4 + 5 + 6 -7): $_____________
C. Ratio (Line III.A. / Line III.B8.): _______ to 1.0
Minimum Required Consolidated Leverage Ratio:
Quarter Ratio
Before September 29, 2004 2.75:1.0
After September 30, 2004 and thereafter 2.50:1.0
IV. SECTION 7.12(c) - CONSOLIDATED FIXED CHARGE COVERAGE RATIO.
A. Consolidated EBIT for four consecutive fiscal quarters ending on $_____________
above date ("Subject Period") less income taxes:
1. Consolidated Net Income for Subject Period: $_____________
2. Consolidated Interest Charges for Subject Period: $_____________
3. Plus Non-cash reductions of Consolidated Net Income for $_____________
Subject Period:
4. Minus Non-cash additions to Consolidated Net Income for $_____________
Subject Period:
5. Consolidated EBIT less income taxes (Lines IV.A.1 + 2 + 3
- 4): $_____________
B. Consolidated Interest Charges for Subject Period: $_____________
C. Ratio (Line IV.A.5 / Line IV.B) _______ to 1.0
Minimum Required: 3.50 to 1.0
D-4
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment") is dated
as of the Effective Date set forth below and is entered into by and between
[INSERT NAME OF ASSIGNOR] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Agent as contemplated below, (i) all of the Assignor's rights and obligations as
a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including, to the
extent included in any such facilities, Letters of Credit, and Swing Line Loans)
included in such facilities and, (ii) to the extent permitted to be assigned
under applicable law, all claims, including, without limitation, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment, without
representation or warranty by the Assignor.
1. Assignor: _______________________
2. Assignee: _______________________ [AND IS AN AFFILIATE OF ASSIGNOR]
3. Borrower(s): _______________________
4. Agent: Bank of America, N. A., as Agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of ________, among
[NAME OF BORROWER(S)], Lenders parties thereto, and Agent
6. Assigned Interest:
E-1
Assignment and Assumption Agreement
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders Assigned Commitment/Loans
_____________ $_____________ $_____________ _____________%
_____________ $_____________ $_____________ _____________%
_____________ $_____________ $_____________ _____________%
Effective Date: ________________, 20__ [TO BE INSERTED BY AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _______________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _______________________
Title:
[CONSENTED TO AND] Accepted:
Bank of America, N.A., as Agent
By: ________________________________
Title:
[CONSENTED TO:]
Littelfuse, Inc.
By: ________________________________
Title:
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Assignment and Assumption Agreement
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents, or any collateral thereunder, (iii) the financial condition of
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by Borrower,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, and (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on Agent or any other Lender; and (b) agrees
that (i) it will, independently and without reliance on Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
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Annex 1 to Assignment and Assumption Agreement
3. General Provisions. This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually executed counterpart of this Assignment. This Assignment shall be
governed by, and construed in accordance with, the laws of the State of
Illinois.
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Annex 1 to Assignment and Assumption Agreement
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ADMINISTRATIVE DETAILS
(ASSIGNEE TO LIST NAMES OF CREDIT CONTACTS, ADDRESSES, PHONE AND FACSIMILE
NUMBERS, ELECTRONIC MAIL ADDRESSES AND ACCOUNT AND PAYMENT INFORMATION)
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Annex 1 to Assignment and Assumption Agreement
EXHIBIT F
FORM OF GUARANTY
GUARANTY dated as of August 26, 2003 made by the Persons listed on the
signature pages hereof under the caption "Original Guarantors" and the
Additional Guarantors (as defined in Section 8(b)) (such Persons so listed and
the Additional Guarantors being, collectively, the "Guarantors" and,
individually, each a "Guarantor") in favor of the Lenders (as defined in the
Credit Agreement referred to below).
PRELIMINARY STATEMENT. Littelfuse, Inc., a Delaware corporation (the
"Borrower"), is party to a Credit Agreement dated as of August 26, 2003 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with certain
Lenders party thereto, and Bank of America, N.A., as Agent for such Lenders.
Each Guarantor will derive substantial direct and indirect benefits from the
transactions contemplated by the Credit Agreement. It is a condition precedent
to the making of Loans or issuance of Letters of Credit by the Lenders or the
Agent under the Credit Agreement from time to time that each Guarantor shall
have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders and the Agent to make Loans and/or issue Letters of Credit under the
Credit Agreement from time to time, each Guarantor, jointly and severally with
each other Guarantor, hereby agrees as follows:
Section 1. Guaranty, Limitation of Liability
(a) Each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand or
otherwise, of all Obligations of each other Loan Party now or hereafter existing
under or in respect of the Loan Documents (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations, interest,
premiums, fees, penalties, indemnities, contract causes of action, costs,
expenses or otherwise and all Obligations of each other Loan Party now or
hereafter existing in respect of overdraft facilities, cash management services
or repurchase agreements (all such Obligations being collectively called the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including,
without limitation, fees and expenses of counsel) incurred by Agent or any other
Lender in enforcing any rights under this Guaranty or any other Loan Document.
Without limiting the generality of the foregoing, each Guarantor's liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Loan Party to any Lender under or in respect of
the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this
Guaranty, Agent and each other Lender, hereby confirms that it is the intention
of all such Persons that this Guaranty and the Obligations of each Guarantor
hereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law
to the extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, Agent, the other Lenders and
the Guarantors hereby irrevocably agree that the Obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Guaranty not constituting
a fraudulent transfer or conveyance. For purposes hereof, "Bankruptcy Law" means
any proceeding of the type referred to in Section 8.01(f) of the Credit
Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law
for the relief of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Lender
under this Guaranty or any other guaranty, such Guarantor will contribute, to
the maximum extent permitted by law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the Lenders
under or in respect of the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against Borrower or any other Loan Party or whether Borrower
or any other Loan Party is joined in any such action or actions. The liability
of each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives (to
the full extent permitted by law) any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure from
any Loan Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
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(c) any change, restructuring or termination of the
corporate structure or existence of any Loan Party or any of its Subsidiaries;
(d) any failure of any Lender to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party now or hereafter known to such Lender (each Guarantor waiving any duty on
the part of the Lenders to disclose such information);
(e) the failure of any other Person to execute or deliver
this Guaranty, any Guaranty Supplement (as hereinafter defined) or any other
guaranty or agreement or the release or reduction of liability of any Guarantor
or other guarantor or surety with respect to the Guaranteed Obligations; or
(f) any other circumstance (including, without
limitation, any statute of limitations) or any existence of or reliance on any
representation by any Lender that might otherwise constitute a defense available
to, or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or any other Person upon
the insolvency, bankruptcy or reorganization of Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments.
(a) Each Guarantor hereby unconditionally and irrevocably
waives, to the full extent permitted by law, promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Lender protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Loan Party or any
other Person.
(b) Each Guarantor hereby unconditionally and irrevocably
waives, to the full extent permitted by law, any right to revoke this Guaranty
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives, to the full extent permitted by law, (i) any defense arising by reason
of any claim or defense based upon an election of remedies by any Lender that in
any manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against any of
the other Loan Parties, any other guarantor or any other Person and (ii) any
defense
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based on any right of set-off or counterclaim against or in respect of the
Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that Agent may, without
notice to or demand upon such Guarantor and without affecting the liability of
such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by Agent and
the other Lenders against such Guarantor of any deficiency after such
nonjudicial sale and any defense or benefits that may be afforded by applicable
law.
(e) Each Guarantor hereby unconditionally and irrevocably
waives, , to the full extent permitted by law, any duty on the part of any
Lender to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party or any of its Subsidiaries now
or hereafter known by such Lender.
(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 2
and this Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against Borrower, any other Loan Party or any other insider guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's Obligations under or in respect of this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Lender against Borrower, any other
Loan Party or any other insider guarantor, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from Borrower, any other Loan
Party or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, all Letters of Credit shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the Maturity
Date and (c) the latest date of expiration or termination of all Letters of
Credit, such amount shall be received and held in trust for the benefit of the
Lenders, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents. If (i) any Guarantor shall make payment to any Lender of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable
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under this Guaranty shall have been paid in full in cash, (iii) the Maturity
Date shall have occurred and (iv) all Letters of Credit shall have expired or
been terminated, the Lenders will, at such Guarantor's request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by such Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc.
(a) Any and all payments made by any Guarantor under or
in respect of this Guaranty or any other Loan Document shall be made, in
accordance with Section 2.11 of the Credit Agreement, free and clear of and
without deduction for any and all present or future Taxes. If any Guarantor
shall be required by law to deduct any Taxes from or in respect of any sum
payable under or in respect of this Guaranty or any other Loan Document to any
Lender, (i) the sum payable by such Guarantor shall be increased as may be
necessary so that after such Guarantor and Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 5), such Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Guarantor shall make all
such deductions and (iii) such Guarantor shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Guarantor agrees to pay any present
or future Other Taxes that arise from any payment made by or on behalf of such
Guarantor under or in respect of this Guaranty or any other Loan Document or
from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Guaranty and the other Loan Documents.
(c) Each Guarantor will indemnify each Lender for and
hold it harmless against the full amount of Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 5, imposed on or paid by such Lender and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of any Guarantor, such Guarantor shall furnish to Agent, at its
address referred to in Section 9, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder by or on behalf of
any Guarantor through an account or branch outside the United States or by or on
behalf of such Guarantor by a payor that is not a United States person, if such
Guarantor determines that no Taxes are payable in respect thereof, such
Guarantor shall furnish or shall cause such payor to furnish, to Agent, at such
address, an opinion of counsel acceptable to Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 5,
the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
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Section 6. Representations and Warranties. Each Guarantor hereby makes
each representation and warranty made in the Loan Documents by Borrower with
respect to such Guarantor and each Guarantor hereby further represents and
warrants as follows:
(a) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(b) Such Guarantor has, independently and without
reliance upon any Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party, and
such Guarantor has established adequate means of obtaining from each other Loan
Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business, condition
(financial or otherwise), operations, performance, properties and prospects of
such other Loan Party.
Section 7. Covenants. Each Guarantor covenants and agrees that, so long
as any part of the Guaranteed Obligations shall remain unpaid, any Letter of
Credit shall be outstanding, or any Lender shall have any Commitment shall be in
effect, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set forth in the Loan Documents on its or their part to be performed or observed
or that Borrower has agreed to cause such Guarantor or such Subsidiaries to
perform or observe.
Section 8. Amendments, Guaranty Supplements, Etc.
(a) No amendment or waiver of any provision of this
Guaranty and no consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Agent and
the Required Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender that is, at such time, a
Defaulting Lender), (a) reduce or limit the obligations of any Guarantor
hereunder, release any Guarantor hereunder or otherwise limit any Guarantor's
liability with respect to the Obligations owing to the Lenders under or in
respect of the Loan Documents, (b) postpone any date fixed for payment hereunder
or (c) change the number of Lenders or the percentage of the Aggregate
Commitments or of the unpaid principal amount of the Loans and L/C Obligations
which is required for the Lenders or any of them to take any action hereunder.
(b) Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit A hereto (each, a
"Guaranty Supplement"), (i) such Person shall be referred to as an "Additional
Guarantor" and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and each reference in any other Loan Document to an
"Original Guarantor" shall also mean and be a reference to such Additional
Guarantor, and (ii) each reference herein to "this Guaranty", "hereunder",
"hereof" or words of like import referring to this Guaranty, and each reference
in any other Loan Document to
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the "Guaranty", "thereunder", "thereof" or words of like import referring to
this Guaranty, shall mean and be a reference to this Guaranty as supplemented by
such Guaranty Supplement.
Section 9. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to any Guarantor, addressed to it in care of Borrower at Borrower's address
specified in Section 10.02 of the Credit Agreement, if to Agent or any Lender,
at its address specified in Section 10.02 of the Credit Agreement, or, as to any
party, at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective when deposited in
the mails, delivered to the telegraph Borrower, transmitted by telecopier or
confirmed by telex answerback, respectively. Delivery by telecopier of an
executed counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty or of any Guaranty Supplement to be executed and
delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
Section 10. No Waiver, Remedies. No failure on the part of any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 8.02 of the Credit Agreement to
authorize Agent to declare the Obligations due and payable pursuant to the
provisions of said Section 8.02, Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by Agent, such Lender or such Affiliate to
or for the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under the Loan
Documents, irrespective of whether Agent or such Lender shall have made any
demand under this Guaranty or any other Loan Document and although such
Obligations may be unmatured. Agent and each Lender agrees promptly to notify
such Guarantor after any such set-off and application; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of Agent and each Lender and their respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that Agent, such Lender
and their respective Affiliates may have.
Section 12. Indemnification.
(a) Without limitation on any other Obligations of any
Guarantor or remedies of the Lenders under this Guaranty, each Guarantor shall,
to the fullest extent permitted by law, indemnify, defend and save and hold
harmless each Lender and each of their
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Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party in
connection with or as a result of any failure of any Guaranteed Obligations to
be the legal, valid and binding obligations of any Loan Party enforceable
against such Loan Party in accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the
Indemnified Parties shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any of the Guarantors or any of their respective
Affiliates or any of their respective officers, directors, employees, agents and
advisors, and each Guarantor hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Commitments, the actual or proposed use of the proceeds of the Loans or the
Letters of Credit, the Loan Documents or any of the transactions contemplated by
the Loan Documents.
(c) Without prejudice to the survival of any of the other
agreements of any Guarantor under this Guaranty or any of the other Loan
Documents, the agreements and obligations of each Guarantor contained in Section
1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Subordination. Each Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to such Guarantor by each other
Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. Except during the
continuance of a Default (including the commencement and continuation of a,
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), however,
unless Agent otherwise agrees, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any
proceeding under any Bankruptcy Law relating to any other Loan Party, each
Guarantor agrees that the Lenders shall be entitled to receive payment in full
in cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before such Guarantor receives payment of any Subordinated
Obligations.
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(c) Turn-Over. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor shall, if Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Lenders and deliver
such payments to Agent on account of the Guaranteed Obligations (including all
Post Petition Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during
the continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any other Loan Party), Agent
is authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and to apply any amounts
received thereon to the Guaranteed Obligations (including any and all Post
Petition Interest), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to Agent for application to the
Guaranteed Obligations (including any and all Post Petition Interest).
Section 14. Continuing Guaranty, Assignments under the Credit Agreement.
This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the Maturity
Date and (iii) the latest date of expiration or termination of all Letters of
Credit, (b) be binding upon the Guarantor, its successors and assigns and (c)
inure to the benefit of and be enforceable by the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitments, the Loans
owing to it and the Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as and to the
extent provided in Section 10.07 of the Credit Agreement. No Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
Section 15. Execution in Counterparts. This Guaranty and each amendment,
waiver and consent with respect hereto may be executed in any number of
counterparts and by different parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
Section 16. Severability. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining provisions of Guaranty shall not be affected or impaired thereby.
The invalidity of a provision in a
F-9
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 17. Governing Law, Jurisdiction, Waiver of Jury Trial, Etc.
(a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
(b) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
Illinois State court or federal court of the United States of America sitting in
Chicago, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any
judgment, and each Guarantor hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such Illinois State court or, to the extent permitted by law,
in such federal court. Each Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty or any other Loan Document shall affect any right that
any party may otherwise have to bring any action or proceeding relating to this
Guaranty or any other Loan Document in the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any Illinois State or
federal court. Each Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such suit, action or proceeding in any such court.
(d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 18. Foreign Currency. If any claim arising under or related to
this Guaranty is reduced to judgment denominated in a currency (the "Judgment
Currency") other than the currencies in which the Guaranteed Obligations are
denominated (collectively the "Obligations Currency"), the judgment shall be for
the equivalent in the Judgment Currency of the amount of the claim denominated
in the Obligations Currency included in the judgment, determined as of the date
of judgment. The equivalent of any Obligations Currency amount in any Judgment
Currency shall be calculated at the spot rate for the purchase of the
Obligations Currency with the Judgment Currency quoted by the Agent in the place
of the Agent's choice at or about 8:00 a.m. on the date for determination
specified above. The Guarantor shall
F-10
indemnify the Agent and each Lender and hold the Agent and each Lender harmless
from and against all loss or damage resulting from any change in exchange rates
between the date any claim is reduced to judgment and the date of payment
thereof by the Guarantor. If the Agent so notifies the Guarantor in writing, at
the Agents sole and absolute discretion, payments under this Guaranty shall be
the U.S. Dollar equivalent of the Guaranteed Obligations or any portion thereof,
determined as of the date payment is made.
F-11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
TECCOR ELECTRONICS, INC.,
a Texas corporation
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
TECCOR DELAWARE, INC.,
a Delaware corporation
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
TECCOR ELECTRONICS, LP,
a Delaware limited partnership
By: Teccor Electronics, Inc.,
its general partner
By: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
TECCOR ELECTRONICS MEXICO
HOLDINGS LLC, a Delaware limited
liability company
By: Teccor Electronics, LP, it
sole member
By: Teccor Electronics, Inc., its
general partner
By: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
WATSEKA LF, INC., a Delaware
corporation
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
FORM OF GUARANTY SUPPLEMENT
___________ __,____
Bank of America, N.A., as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Credit Agreement dated as of August 26, 2003 among
Littelfuse, Inc., a Delaware corporation
(the "Borrower"), the Lenders
party to the Credit Agreement, Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Guaranty referred to therein (such Guaranty, as in effect on the date hereof and
as it may hereafter be amended, supplemented or otherwise modified from time to
time, together with this Guaranty Supplement, being the "Guaranty"). The
capitalized terms defined in the Guaranty or in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability.
(a) The undersigned hereby absolutely, unconditionally
and irrevocably guarantees the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand or
otherwise, of all Obligations of each other Loan Party now or hereafter existing
under or in respect of the Loan Documents (including, without limitation., any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premium, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such Obligations being
the "Guaranteed Obligations"), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel) incurred by Agent
or any other Lender in enforcing any rights under this Guaranty Supplement, the
Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, the undersigned's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Lender under or in respect of the Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) The undersigned, and by its acceptance of this
Guaranty Supplement, Agent and each other Lender, hereby confirms that it is the
intention of all such Persons that this Guaranty Supplement, the Guaranty and
the Obligations of the undersigned hereunder and thereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to this Guaranty
Supplement, the Guaranty and the Obligations of the undersigned hereunder and
thereunder. To effectuate the foregoing
F-1
Form of Guaranty
intention, Agent, the other Lenders and the undersigned hereby irrevocably agree
that the Obligations of the undersigned under this Guaranty Supplement and the
Guaranty at any time shall be limited to the maximum amount as will result in
the Obligations of the undersigned under this Guaranty Supplement and the
Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and
irrevocably agrees that in the event any payment shall be required to be made to
any Lender under this Guaranty Supplement, the Guaranty or any other guaranty,
the undersigned will contribute, to the maximum extent permitted by applicable
law, such amounts to each other Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Lenders under or in respect of the
Loan Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees,
as of the date first above written, to be bound as a Guarantor by all of the
terms and conditions of the Guaranty to the same extent as each of the other
Guarantors thereunder. The undersigned further agrees, as of the date first
above written, that each reference in the Guaranty to an "Additional Guarantor"
or a "Guarantor" shall also mean and be a reference to the undersigned, and each
reference in any other Loan Document to an "Original Guarantor" or a "Loan
Party" shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby makes
each representation and warranty set forth in Section 6 of the Guaranty to the
same extent as each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart of
a signature page to this Guaranty Supplement by telecopier shall be effective as
delivery of an original executed counterpart of this Guaranty Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Guaranty Supplement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
(b) The undersigned hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Illinois State court or any federal court of the United
States of America sitting in an Illinois City, and any appellate court from any
y thereof, in any action or proceeding arising out of or relating to this
Guaranty Supplement, the Guaranty or any of the other Loan Documents to which it
is or is to be a party, or for recognition or enforcement of any judgment, and
the undersigned hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
Illinois State court or, to the extent permitted by law, in such federal court.
The undersigned agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty
Supplement or the Guaranty or any other Loan Document shall affect any right
that any party may otherwise have to bring any action or proceeding relating to
F-2
Form of Guaranty
this Guaranty Supplement, the Guaranty or any of the other Loan Documents to
which it is or is to be a party in the courts of any other jurisdiction.
(c) The undersigned irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty Supplement, the
Guaranty or any of the other Loan Documents to which it is or is to be a party
in any Illinois State or federal court. The undersigned hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such suit, action or proceeding in any such court.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR
THE ACTIONS OF ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By: _____________________________
Title: __________________________
F-3
Form of Guaranty
EXHIBIT G
FORM OF OPINION
August __, 2003
To Bank of America, N.A.,
as Agent
and Lenders
(as defined in the Loan Documents referred
to below)
Ladies and Gentlemen:
We have acted as counsel for Littelfuse, Inc., a Delaware corporation
("Littelfuse") and for its Subsidiaries listed on Annex I hereto (together with
Littelfuse, the "Loan Parties," and individually a "Loan Party"), in connection
with the negotiation, execution and delivery of the Credit Agreement ("Credit
Agreement") dated as of August 26, 2003, among Littelfuse, various lenders
("Lenders"), and Bank of America, N.A. ("Bank of America") as administrative
agent ("Agent"). Capitalized terms used herein without definition have the
meanings set forth in the Credit Agreement.
In connection with this opinion letter, we have examined executed
copies of the following documents each dated as of August 26, 2003 (the "Loan
Documents"), each in favor of Agent for the benefit of Lenders, and each
together with all schedules and exhibits thereto:
(i) the Credit Agreement;
(ii) Note(s); and
(iii) the Guaranty;
We have also reviewed the following:
(a) the certificate of incorporation, articles
of incorporation, limited partnership agreement or articles of
formation, as the case may be, of each Loan Party, and the
by-laws of each corporate Loan Party (collectively, the
"Organization Documents"), and (b) resolutions adopted on or
as of August 22, 2003, by the board of directors, the general
partner or the member, as the case may be, of each Loan Party;
(b) As to each Loan Party, a certificate of the
secretary of state dated as of a recent date of the state of
its incorporation or formation listed opposite such Loan
Party's name on Annex I attesting to the continued corporate
existence and good standing of such Loan Party in that state;
and
G-1
Form of Opinion
(c) the certificates of each Loan Party
delivered in response to Section 4.01(a) of the Credit
Agreement (the "Certificates").
In addition, we have made such other investigations as we have deemed
necessary to enable us to express the opinions hereinafter set forth. In the
course of this examination we have assumed the genuineness of all signatures of
persons signing the Loan Documents on behalf of parties thereto other than the
Loan Parties, the authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all documents submitted to us
as certified, conformed or photostatic copies, and the due authorization,
execution and delivery of the Loan Documents by the parties thereto other than
the Loan Parties.
Based upon the foregoing, and further subject to the assumptions,
qualifications and exceptions set forth below, we hereby advise you that in our
opinion:
1. Each Loan Party is a [corporation,] [partnership] [limited
liability company] validly existing and in good standing under the laws of the
state listed opposite such Loan Party's name on Annex I hereto.
2. Each Loan Party has the full [corporate] power and authority
and legal right to make, enter into and perform the Loan Documents to which it
is a party, and has taken all necessary action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party.
3. No authorization, consent, approval, license, exemption of,
notice to, filing or registration with, or other action by or in respect of any
Governmental Authority or any other Person is required for the due execution,
delivery or performance by, or enforcement against, the Loan Parties of the Loan
Documents to which they are parties.
4. The Loan Documents have been duly executed and delivered on
behalf of each Loan Party. Each Loan Document constitutes the legal, valid and
binding obligations of each Loan Party thereto, enforceable against such Loan
Party in accordance with its respective terms.
5. The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and compliance with the provisions
thereof do not and will not (a) violate or conflict with or result in a breach
of, any provision of or require any consent under the Organization Documents of
such Loan Party, (b) violate or conflict with any federal law of the United
States or Illinois law, (c) to our knowledge, violate or contravene any
judgment, decree, injunction, writ or order of any court, or any arbitrator or
other Governmental Authority having jurisdiction over such Loan Party or such
Loan Party's properties or by which such Loan Party may be bound, (d) violate or
conflict with, or constitute a default under any of the Other Documents and
Court Orders, or (e) result in, or require, the creation or imposition of any
Lien on any of the properties of such Loan Party or any of its Subsidiaries.
6. We are unaware of any action, litigation or proceeding that is
pending or, after due and diligent investigation, threatened by or against any
of the Loan Parties or against their respective properties or revenues before
any court, arbitrator or other Governmental Authority
G-2
Form of Opinion
which action, litigation or proceeding seeks to enjoin the transactions
contemplated by the Loan Documents.
7. The extension of credit under the Credit Agreement does not
violate the provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System.
8. No Loan Party or any Subsidiary thereof is or is required to
be registered as an "investment company" under the Investment Company Act of
1940.
9. No Loan Party or any Subsidiary thereof 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.
* * *
Our opinions set forth in paragraph 4 above regarding enforceability
are subject to the qualification that the enforceability of the Loan Documents
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
equity principles.
We express no opinion herein concerning any law other than the law of
the State of Illinois, the general corporation law of the states listed on Annex
III hereto and the federal law of the United States. By rendering the opinions
set forth in paragraph 2 and we do not intend to indicate that we are experts
on, or qualified to render opinions on, the laws of any jurisdiction other than
Kansas law and the federal law of the United States.
This opinion letter has been furnished to you at the request of
Littelfuse pursuant to the Credit Agreement for your use in connection with the
Credit Agreement, and may not be relied upon by you or any other Person for any
other purpose without our consent, except that (i) this opinion may be disclosed
to (a) bank regulatory and other Governmental Authority having jurisdiction over
you requesting (or requiring) such disclosure and (b) prospective assignees and
participants and any successor Agent in connection with the potential transfer
of all or part of the Loans or Commitments of any Lender or any other rights or
duties under the Credit Agreement, and (ii) this opinion may be disclosed to and
relied upon by assignees of or participants in the Loans or Commitments and by
any successor Agent if such assignments or participations or such successions
are permitted under and made in accordance with the Credit Agreement.
Very truly yours,
G-3
Form of Opinion
ANNEX I
SUBSIDIARIES
NAME OF THE LOAN PARTY STATE OF INCORPORATION OR FORMATION
Teccor Electronics, Inc. Texas
Teccor Delaware, Inc. Delaware
Teccor Electronics, LP Delaware
Teccor Electronics Mexico Holdings LLC Delaware
Watseka LF, Inc. Delaware
G-4
Annex III to Form of Opinion