AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 15, 2000
among
▇▇▇▇▇ COMPANIES, INC.,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS
FROM TIME TO TIME PARTY HERETO,
FLEET NATIONAL BANK,
as Syndication Agent,
AND
BANK OF AMERICA, N.A.,
as Agent
Arranged by
BANC OF AMERICA SECURITIES LLC
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.............................................................................................1
1.1 Definitions..........................................................................................1
1.2 Computation of Time Periods.........................................................................24
1.3 Accounting Terms....................................................................................24
SECTION 2 CREDIT FACILITIES......................................................................................25
2.1 Revolving Loans.....................................................................................25
2.2 Letter of Credit Subfacility........................................................................27
2.3 Foreign Currency Loan Subfacility...................................................................33
2.4 Swingline Loan Subfacility..........................................................................35
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.........................................................37
3.1 Default Rate........................................................................................37
3.2 Continuation and Conversion.........................................................................37
3.3 Prepayments.........................................................................................38
3.4 Reductions in Commitments...........................................................................39
3.5 Fees................................................................................................40
3.6 Capital Adequacy....................................................................................41
3.7 Inability To Determine Interest Rate................................................................41
3.8 Illegality..........................................................................................41
3.9 Requirements of Law.................................................................................42
3.10 Taxes..............................................................................................43
3.11 Indemnity..........................................................................................45
3.12 Pro Rata Treatment.................................................................................45
3.13 Sharing of Payments................................................................................46
3.14 Payments, Computations, Etc........................................................................47
3.15 Evidence of Debt...................................................................................49
SECTION 4 GUARANTY...............................................................................................50
4.1 The Guarantee.......................................................................................50
4.2 Obligations Unconditional...........................................................................50
4.3 Reinstatement.......................................................................................51
4.4 Remedies............................................................................................52
4.5 Rights of Contribution..............................................................................52
4.6 Continuing Guarantee................................................................................53
SECTION 5 CONDITIONS.............................................................................................53
5.1 Conditions to Closing...............................................................................53
5.2 Conditions to All Extensions of Credit..............................................................56
SECTION 6 REPRESENTATIONS AND WARRANTIES.........................................................................57
6.1 Financial Condition.................................................................................57
6.2 No Changes or Restricted Payments...................................................................57
6.3 Organization; Existence; Compliance with Law........................................................57
6.4 Power; Authorization; Enforceable Obligations.......................................................58
6.5 No Legal Bar........................................................................................58
6.6 No Material Litigation..............................................................................58
6.7 No Default..........................................................................................59
6.8 Ownership of Property; Liens........................................................................59
6.9 Intellectual Property...............................................................................59
6.10 No Burdensome Restrictions.........................................................................59
6.11 Taxes..............................................................................................59
6.12 ERISA..............................................................................................60
6.13 Governmental Regulations, Etc......................................................................61
6.14 Purpose of Extensions of Credit....................................................................62
6.15 Environmental Matters..............................................................................62
6.16 First Priority Lien................................................................................63
6.17 Subsidiaries.......................................................................................63
6.18 Chief Executive Office.............................................................................63
6.19 Indebtedness under Note Purchase Agreement.........................................................64
SECTION 7 AFFIRMATIVE COVENANTS..................................................................................64
7.1 Financial Statements................................................................................64
7.2 Certificates; Other Information.....................................................................65
7.3 Notices.............................................................................................66
7.4 Payment of Obligations..............................................................................67
7.5 Conduct of Business and Maintenance of Existence....................................................67
7.6 Maintenance of Property; Insurance..................................................................68
7.7 Inspection of Property; Books and Records; Discussions..............................................68
7.8 Environmental Laws..................................................................................68
7.9 Financial Covenants.................................................................................69
7.10 Use of Proceeds....................................................................................70
7.11 Additional Guaranties and Stock Pledges............................................................70
SECTION 8 NEGATIVE COVENANTS.....................................................................................71
8.1 Indebtedness........................................................................................71
8.2 Liens...............................................................................................72
8.3 Nature of Business..................................................................................72
8.4 Consolidation, Merger, Sale of Assets...............................................................72
8.5 Advances, Investments and Loans.....................................................................73
8.6 Restricted Payments.................................................................................73
8.7 Transactions with Affiliates........................................................................74
8.8 Fiscal Year.........................................................................................74
8.9 Limitation on Restrictions..........................................................................74
8.10 Sale Leasebacks....................................................................................75
8.11 No Further Negative Pledges........................................................................75
8.12 Capital Expenditures...............................................................................75
8.13 Infringement of Property Rights....................................................................75
SECTION 9 EVENTS OF DEFAULT......................................................................................76
9.1 Events of Default...................................................................................76
9.2 Acceleration; Remedies..............................................................................78
SECTION 10 AGENCY PROVISIONS.....................................................................................79
10.1 Appointment........................................................................................79
10.2 Delegation of Duties...............................................................................80
10.3 Exculpatory Provisions.............................................................................80
10.4 Reliance on Communications.........................................................................80
10.5 Notice of Default..................................................................................81
10.6 Non-Reliance on Agent and Other Lenders............................................................81
10.7 Indemnification....................................................................................82
10.8 Agent in its Individual Capacity...................................................................82
10.9 Successor Agent....................................................................................82
SECTION 11 MISCELLANEOUS.........................................................................................83
11.1 Notices............................................................................................83
11.2 Right of Set-Off...................................................................................84
11.3 Benefit of Agreement...............................................................................85
11.4 No Waiver; Remedies Cumulative.....................................................................87
11.5 Payment of Expenses, etc...........................................................................87
11.6 Amendments, Waivers and Consents...................................................................88
11.7 Counterparts.......................................................................................88
11.8 Headings...........................................................................................88
11.9 Survival...........................................................................................89
11.10 Governing Law; Submission to Jurisdiction; Venue..................................................89
11.11 Severability......................................................................................90
11.12 Entirety..........................................................................................90
11.13 Binding Effect; Termination.......................................................................90
11.14 Confidentiality...................................................................................90
11.15 Conflict. 91
SCHEDULES & EXHIBITS
Schedule 1.1(a) Existing Letters of Credit
Schedule 1.1(b) Liens
Schedule 2.1 Schedule of Lenders and Commitments
Schedule 6.6 Litigation
Schedule 6.17 Subsidiaries
Schedule 6.18 Chief Executive Office
Schedule 8.1 Indebtedness
Schedule 11.1 Notice
Exhibit A Form of Notice of Borrowing for Revolving Loans
Exhibit B-1 Form of Revolving Note
Exhibit B-2 Form of Swingline Note
Exhibit C Form of Notice of Borrowing for Foreign Currency Loans
Exhibit D Form of Notice of Continuation/Conversion
Exhibit E Form of Officer's Compliance Certificate
Exhibit F Form of Joinder Agreement
Exhibit G Form of Intercreditor Agreement
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Increase Request
AMENDED AND RESTATED CREDIT AGREEMENT
.........THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 15,
2000 (this "Credit Agreement") is by ---------------- and among ▇▇▇▇▇ COMPANIES,
INC., a Delaware corporation (the "Borrower"), the Guarantors (as defined
herein), the -------- lenders named herein and such other lenders as may become
a party hereto (the "Lenders"), FLEET NATIONAL BANK, as ------- Syndication
Agent, and BANK OF AMERICA, N.A. ("Bank of America"), as Administrative Agent
for the Lenders (in --------------- such capacity, the "Agent"). -----
W I T N E S S E T H
.........WHEREAS, the Borrower, various financial institutions and Bank of
America (then known as NationsBank of Texas, N.A.) have entered into a Credit
Agreement dated as of March 27, 1998 (the "Existing Agreement");
------------------
.........WHEREAS, the parties hereto have agreed to amend and restate the
Existing Agreement so as to, among other things, (a) increase the amount of
certain facilities thereunder, (b) amend certain covenants and various other
provisions of the Existing Agreement and (c) change the composition of the
lender group; and
.........WHEREAS, the parties hereto intend that this Agreement and the
documents executed in connection herewith not effect a novation of the
obligations of the Company under the Existing Agreement, but merely a
restatement of and, where applicable, an amendment to the terms governing such
obligations;
.........NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Existing Agreement is amended and restated in its entirety,
and the parties hereto agree as follows:
SECTION 1
DEFINITIONS
SECTION 1.1 Definitions.
-----------
.........As used in this Credit Agreement, the following terms shall have
the meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a Guarantor
after the date hereof by execution of a Joinder Agreement.
"Additional Foreign Currency" means the lawful currency of Australia,
Bangladesh, Brunei, China, India, Indonesia, Korea, Malaysia, Pakistan,
Philippines, Sri Lanka, Taiwan and Thailand.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding five percent (5%) or more of the equity interest in
such Person. For purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" is defined in the Preamble.
-----
"Agent's Fee Letter" means that certain letter agreement, dated as of
May 23, 2000 between the Agent and the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate amount of
Revolving Commitments in effect from time to time, being initially
$150,000,000 (such aggregate maximum amount may be changed from time to
time as provided in Section 3.4).
"Applicable Percentage" means for the Revolving Loans, Foreign Currency
Loans, Swingline Loans, Letter of Credit Fee and the Unused Fee, the
appropriate applicable percentage corresponding to the Leverage Ratio
in effect as of the most recent determination date as shown below:
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
Applicable Applicable Applicable Applicable
Percentage For Percentage For Percentage Percentage
Pricing Eurocurrency Base Rate For Letter of For
Level Leverage Ratio Loans and Swingline Loans Credit Fees Unused Fees
Loans
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
I >3.00 to 1.0 2.25% 1.00% 2.25% 0.400%
-
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
II >2.50 to 1.0 2.00% 0.75% 2.00% 0.350%
-
but
<3.00 to 1.0
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
III >2.0 to 1.0 1.75% 0.50% 1.75% 0.325%
-
but
<2.5 to 1.0
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
IV >1.50 to 1.0 1.50% 0.25% 1.50% 0.300%
-
but
<2.00 to 1.0
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
V <1.50 to 1.0 1.25% 0% 1.25% 0.275%
-------------- ------------------- ---------------------- -------------------- ------------------- ------------------
The Applicable Percentages shall be determined and adjusted quarterly
on the date (each a "Calculation Date") five Business Days after the
date on which the Agent receives the officer's certificate provided by
the Borrower in accordance with the provisions of Section 7.2(b);
provided, however, that (i) the initial Applicable Percentages shall be
based on Pricing Level III until the first Calculation Date to occur
after the date hereof, and, thereafter, the Applicable Percentages
shall be determined by the Leverage Ratio as of the fiscal quarter end
immediately preceding the applicable Calculation Date, and (ii) if the
Borrower fails to provide the officer's certificate to the Agent as
required by Section 7.2(b) on or before the most recent Calculation
Date, the Applicable Percentages from such Calculation Date shall be
based on Pricing Level I until such time as an appropriate officer's
certificate is provided, whereupon the Pricing Level shall be
determined by the Leverage Ratio as of the fiscal quarter end
immediately preceding the applicable Calculation Date. Except as set
forth above, each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all existing Loans and
Letters of Credit as well as any new Loans made or Letters of Credit
issued. The Borrower shall promptly deliver to the Agent at the address
set forth in Section 11.1 the information required by Section 7.2(b) in
accordance with the terms of Section 7.2(b).
"Asset Disposition" means the disposition of any or all of the assets
(or the sale of the stock of a Subsidiary) of the Borrower or any of
its Subsidiaries whether by sale, lease, transfer or otherwise unless
permitted by the terms of Section 8.4(b)(i), (ii) or (iii).
"Available Foreign Currency" means (i) the lawful currency of England, the
Netherlands, Belgium, France, Germany, Hong Kong, Switzerland, Norway,
Japan, Italy and Singapore and (ii) any other freely available currency
(other than any Additional Foreign Currency) which is freely
transferable and freely convertible into Dollars, in which dealings in
deposits are carried on in the London interbank market, and which shall
be requested by the Borrower and approved by each Lender.
"Bank of America" is defined in the Preamble.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or ordering the
winding up or liquidation of its affairs; (ii) there shall be commenced
against such Person an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of 60 consecutive
days; (iii) such Person shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"Base Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (i) the Federal Funds Rate in effect on such day plus 1/2 of
1% or (ii) the Prime Rate in effect on such day. If for any reason the
Agent shall have determined (which determination shall be conclusive
absent manifest error) that it is unable after due inquiry to ascertain
the Federal Funds Rate for any reason, including the inability or
failure of the Agent to obtain sufficient quotations in accordance with
the terms hereof, the Base Rate shall be determined without regard to
clause (i) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Borrower"is defined in the Preamble.
--------
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in Chicago, Illinois or Charlotte, North
Carolina are authorized or required by law to close, except that, (i)
when used in connection with a Eurocurrency Loan, such day shall also
be a day on which dealings between banks are carried on in Dollar
deposits in the London interbank market and (ii) when used in
connection with a Foreign Currency Loan, such day shall also be a day
on which dealings between banks are carried on in deposits in the
applicable Available Foreign Currency or Additional Foreign Currency in
the London interbank market.
"Capital Expenditures" means all expenditures which in accordance with
GAAP would be classified as capital expenditures, including Capital
Leases.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Lease Obligation" means the capital lease obligations relating
to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition,
(b) U.S. dollar denominated time deposits and certificates of deposit
of (i) any Lender, or (ii) any domestic commercial bank of recognized
standing (y) having capital and surplus in excess of $500,000,000 and
(z) whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the
equivalent thereof (any such Lender being an "Approved Lender"), in
each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Lender (or by the parent company thereof) and
maturing within six months of the date of acquisition, (d) repurchase
agreements entered into by a Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of America in which
such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) obligations of any State of the United
States or any political subdivision thereof, the interest with respect
to which is exempt from federal income taxation under Section 103 of
the Code, having a long term rating of at least AA- or Aa-3 by S&P or
▇▇▇▇▇'▇, respectively, and maturing within three years from the date of
acquisition thereof, (f) Investments in municipal auction preferred
stock (i) rated AAA (or the equivalent thereof) or better by S&P or Aaa
(or the equivalent thereof) or better by Moody's and (ii) with
dividends that reset at least once every 365 days and (g) Investments,
classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of
1940, which are administered by reputable financial institutions having
capital of at least $100,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert (other
than ▇▇▇▇ ▇. ▇▇▇▇▇) shall have acquired "beneficial ownership,"
directly or indirectly, of, or shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of, control
over, Voting Stock of the Borrower (or other securities convertible
into such Voting Stock) representing 50% or more of the combined voting
power of all Voting Stock of the Borrower, or (ii) during any period of
up to 24 consecutive months, commencing after the date hereof,
individuals who at the beginning of such 24 month period were directors
of the Borrower (together with any new director whose election by the
Borrower's Board of Directors or whose nomination for election by the
Borrower's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the directors of the Borrower then in office. As used
herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities
Act of 1934.
"Code" means the Internal Revenue Code of 1986. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" means all collateral referred to in and covered by the
Pledge Agreements.
"Collateral Agent" means Bank of America, in its capacity as collateral
agent for the Lenders, the Noteholders and the Permitted Holders under
the Intercreditor Agreement and the Pledge Agreements.
"Collateral Foreign Subsidiary" means any Foreign Subsidiary of the
Borrower or any other Credit Party with respect to which the Collateral
Agent, for the benefit of the Lenders (and Affiliates of Lenders as to
certain obligations under Hedging Agreements), the Noteholders and the
Permitted Holders, has a perfected first priority security interest in
65% of the Voting Stock of such Foreign Subsidiary.
"Commitment" means each of the Revolving Commitment, the Foreign
Currency Commitment, the LOC Commitment and the Swingline Commitment.
"Commitment Period" means the period from and including the Effective
Date to but not including the earlier of (i) the Maturity Date, or (ii)
the date on which the Revolving Commitments terminate in accordance
with the provisions of this Credit Agreement.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument
or undertaking to which such Person is a party or by which it or any of
its property is bound.
"Credit Documents" means, collectively, this Credit Agreement, the
Notes, the Pledge Agreements, the LOC Documents, each Joinder
Agreement, the Agent's Fee Letter, and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Determination Date" means, with respect to any Foreign Currency Loan
and any Letter of Credit denominated in a currency other than Dollars:
(a)......in connection with any origination of any Extension of Credit, the
Business Day which is the earliest of the date such Loan is made or the
date the interest rate is set;
(b)......in connection with any continuation or conversion of an existing
Extension of Credit, the last Business Day of each month or the
Business Day which is the earlier of the date such credit is extended
or converted or continued, or the date the rate is set, as applicable,
in connection with any conversion or continuation;
(c)......the date of any reduction of the Aggregate Revolving Committed
Amount pursuant to the terms of Section 3.4; or
(d)......such additional dates (not more frequently than once a month) as may be
determined by the Agent.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount
of any Available Foreign Currency or any Additional Foreign Currency or
an amount denominated in such Available Foreign Currency or Additional
Foreign Currency, the Dollar Equivalent of such amount on the
applicable date contemplated in this Credit Agreement.
"Dollar Equivalent" means, on any date, with respect to any amount
denominated in an Available Foreign Currency or an Additional Foreign
Currency, the amount of Dollars into which the Agent could, in
accordance with its practice from time to time in the interbank foreign
exchange market, convert such amount of Available Foreign Currency or
Additional Foreign Currency, as applicable, at its spot rate of
exchange (inclusive of all reasonable related costs of conversion)
applicable to the relevant transaction at or about 10:00 A.M., Chicago,
Illinois time, on such date.
"Dollars" and "$" means lawful currency of the United States of America.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
organized under the laws of any state of the United States or of the
District of Columbia.
"EBITDA" means for any period with respect to the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) Net Income for
such period plus (b) to the extent deducted in determining Net Income
for such period, (i) Interest Expense, (ii) total federal, state, local
and foreign income, value added and similar taxes and (iii)
depreciation and amortization expense, all as determined in accordance
with GAAP.
"EBITDAR" means, for any period with respect to the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) EBITDA for such
period plus (b) to the extent deducted in determining EBITDA for such
period, Rental Expense for such period.
......... "Effective Date" is defined in Section 5.1.
--------------
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
and (iii) any other Person approved by the Agent (such approval not to
be unreasonably withheld or delayed) and, unless an Event of Default or
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 11.3, the Borrower (such approval
not to be unreasonably withheld or delayed by the Borrower and such
approval to be deemed given by the Borrower if no objection is received
by the assigning Lender and the Agent from the Borrower within two
Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower); provided, however,
that neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable Federal,
state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions
relating to the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the
environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
"Equity Transaction" means any issuance by the Borrower to any Person
of shares of its capital stock or other equity interest whether
pursuant to the exercise of options or warrants or pursuant to the
conversion of any debt securities to equity or otherwise.
"ERISA" means the Employee Retirement Income Security Act of 1974.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with
the Borrower within the meaning of Section 4001(a)(14) of ERISA, or is
a member of a group which includes the Borrower and which is treated as
a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA), (ii) the withdrawal by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan, (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA, (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA, (v) any event or condition which
could reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, (vi) the complete or partial withdrawal of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiemployer Plan, (vii) the conditions for imposition of a lien under
Section 302(f) of ERISA exist with respect to any Plan, or (vii) the
adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Eurocurrency Loan" means any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Loan comprising part of the same borrowing (including
conversions, continuations and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest 1/10,000 of 1%)
determined pursuant to the following formula:
Eurocurrency Rate = Interbank Offered Rate
1 - Eurocurrency Reserve Percentage
"Eurocurrency Reserve Percentage" means, with respect to any Eurodollar
Loan for any Interest Period, a percentage (expressed as a decimal)
equal to the daily average during such Interest Period of the
percentage in effect on each day of such Interest Period, as prescribed
by the FRB, for determining the aggregate maximum reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to Regulation D or
any other then applicable regulation of the FRB which prescribes
reserve requirements applicable to "Eurocurrency Liabilities" as
presently defined in Regulation D.
"Event of Default" is defined in Section 9.1.
"Existing Agreement" is defined in the Recitals.
"Existing Letters of Credit" means the letters of credit described by
date of issuance, letter of credit number, undrawn amount, name of
beneficiary and the date of expiry on Schedule 1.1(a) hereto.
"Extension of Credit" means, as to any Lender, the making of, or
participation in, a Loan by such Lender or the issuance or extension
of, or participation in, a Letter of Credit.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest per annum
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) 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 (i) 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 and (ii) if no such rate is so published on such
next preceding Business Day, the Federal Funds Rate for such day shall
be the average rate quoted to the Agent on such day on such
transactions as determined by the Agent.
"Fixed Charge Coverage Ratio" means, with respect to the Borrower and
its Subsidiaries, on a consolidated basis, as of the end of each fiscal
quarter of the Borrower for the four fiscal quarter period ending on
such date, the ratio of (a) EBITDAR for the applicable period to (b)
the sum of (i) Interest Expense for the applicable period plus (ii)
Rental Expense for the applicable period.
"Foreign Currency" means the Available Foreign Currency or the
Additional Foreign Currency, as appropriate.
"Foreign Currency Commitment" means, with respect to each Lender, the
commitment of such Lender to make Foreign Currency Loans in an
aggregate principal amount at any time outstanding of up to such
Lender's Foreign Currency Commitment Percentage of the Foreign Currency
Committed Amount.
"Foreign Currency Commitment Percentage" means, for any Lender, the
percentage identified as its Foreign Currency Commitment Percentage on
Schedule 2.1, as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Foreign Currency Committed Amount" means, collectively, the aggregate
amount of all Foreign Currency Commitments as referenced in Section
2.3(a) in an amount not to exceed $30,000,000 at any time and,
individually, the amount of each Lender's Foreign Currency Commitment
as specified on Schedule 2.1.
"Foreign Currency Equivalent" means, on any date, with respect to an
amount denominated in Dollars, the amount of any applicable Available
Foreign Currency or Additional Foreign Currency, as the case may be,
into which the Agent could, in accordance with its practice from time
to time in the interbank foreign exchange market, convert such amount
of Dollars at its spot rate of exchange (inclusive of all reasonable
related costs of conversion) applicable to the relevant transaction on
or about 10:00 A.M. (Chicago, Illinois time) on such date.
"Foreign Currency Loans" is defined in Section 2.3(a).
----------------------
"Foreign Subsidiary" means any Subsidiary of the Borrower which is not
a Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System or
any successor thereto. "Funded Debt" means, with respect to
any Person, without duplication, (i) all Indebtedness of
such Person for borrowed money and (ii) all purchase money Indebtedness
of such Person, including the principal portion of all obligations of
such Person under Capital Leases.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower to the Lenders
(including the Issuing Lender) and the Agent, whenever arising, under
this Credit Agreement, the Notes or the other Credit Documents relating
to the Revolving Obligations (including any interest accruing after the
occurrence of a Bankruptcy Event with respect to the Borrower,
regardless of whether such interest is an allowed claim under the
Bankruptcy Code), and (ii) all liabilities and obligations, whenever
arising, owing from the Borrower to any Lender, or any Affiliate of a
Lender, arising under any Hedging Agreement relating to the Loans or
Revolving Obligations hereunder.
"Guarantors" means a collective reference to each of the Persons
identified as a "Guarantor" on the signature pages hereto and each
Additional Credit Party which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and
"Guarantor" means any one of them.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in
the ordinary course of business of negotiable instruments for deposit
or collection) guaranteeing or intended to guarantee any Indebtedness
of any other Person in any manner, whether direct or indirect, and
including any obligation, whether or not contingent, (i) to purchase
any such Indebtedness or any Property constituting security therefor,
(ii) to advance or provide funds or other support for the payment or
purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person
(including keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold
harmless the holder of such Indebtedness against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Hedging Agreements" means any interest rate protection agreement or
foreign currency exchange agreement between the Borrower and any
Lender, or any Affiliate of a Lender.
"Indebtedness" of any Person means, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person, (v) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (vi) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (vii) all Guaranty Obligations of such Person, (viii) the
principal portion of all obligations of such Person under Capital
Leases, (ix) all obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements (including Hedging Agreements), (x)
the maximum amount of all standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (xi) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, and (xii) the principal
balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner
or a joint venturer, but only to the extent to which there is recourse
to such Person for payment of such Indebtedness.
"Interbank Offered Rate" means, for the Interest Period for each
Eurocurrency Loan comprising part of the same borrowing (including
conversions, continuations and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Agent on the
basis of the offered rates for deposits in Dollars or applicable
Available Foreign Currency or Additional Foreign Currency, as
appropriate, for a period of time corresponding to such Interest Period
(and commencing on the first day of such Interest Period), appearing on
Telerate Page 3750 (or, if, for any reason, Telerate Page 3750 is not
available, the Reuters Screen LIBO Page) as of approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period. As used herein, "Telerate Page 3750" means the display
designated as page 3750 by Dow ▇▇▇▇▇ Telerate, Inc. (or such other page
as may replace such page on that service for the purpose of displaying
the British Bankers Association London interbank offered rates) and
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying
London interbank offered rates of major banks).
"Intercreditor Agreement" means the Amended and Restated Intercreditor
and Collateral Agency Agreement dated as of August 15, 2000 among the
Collateral Agent, the Agent, the Noteholders and the Permitted Holders.
"Interest Expense" means for any period with respect to the Borrower
and its Subsidiaries on a consolidated basis all interest expense,
including the amortization of debt discount and premium and the
interest component under Capital Leases, in each case determined in
accordance with GAAP. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as
of the date of determination.
"Interest Payment Date" means (i) as to any Base Rate Loan, the last
day of each fiscal quarter of the Borrower and the Maturity Date and
(ii) as to any Eurocurrency Loan, the last day of each Interest Period
for such Loan and on the Maturity Date, and in addition where the
applicable Interest Period is more than three months, then also on the
date three months from the beginning of the Interest Period, and each
three months thereafter. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be deemed
to be the next succeeding Business Day, except that in the case of
Eurocurrency Loans if the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business
Day.
"Interest Period" means, as to any Eurocurrency Loan, a period of one,
two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, continuations and renewals); provided that (A) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day (except
if the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (B) no
Interest Period shall extend beyond the Maturity Date, and (C) if an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is
to end, such Interest Period shall end on the last day of such calendar
month.
"Investment" means (i) any loan or advance to any Person, (ii) any
purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of, or equity interest in, any
Person, (iii) any purchase or other acquisition of all or substantially
all of the assets of any Person or of a division or particular business
unit of another Person or (iv) any capital contribution to any Person
or any other investment in any Person, including any Guaranty
Obligation incurred for the benefit of such Person.
"Issuing Lender" means (i) as to Letters of Credit denominated in
Dollars and Available Foreign Currencies (other than the lawful
currency of Hong Kong and Singapore), Bank of America and (ii) as to
Letters of Credit denominated in Additional Foreign Currencies and the
lawful currency of Hong Kong and Singapore, Standard Chartered Bank.
Notwithstanding the foregoing, Standard Chartered Bank shall also be
the Issuing Lender as to certain Letters of Credit denominated in
Dollars which are issued in accordance with the terms of Section 2.2(f)
for the account of a Subsidiary of the Borrower doing business in Asia.
"Joinder Agreement" means a joinder agreement substantially in the form
of Exhibit F, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 7.11.
"Lead Arranger" means Banc of America Securities LLC.
-------------
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and their successors and assigns.
"Letter of Credit" means (i) any letter of credit issued by the Issuing
Lender for the account of the Borrower in accordance with the terms of
Section 2.2 and (ii) any Existing Letter of Credit.
"Letter of Credit Fee" is defined in Section 3.5(b)(i).
"Leverage Ratio" means, as of the last day of any fiscal quarter of the
Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (i) Funded Debt on such day to (ii)
EBITDA for the period of four consecutive fiscal quarters ending as of
such day.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means any Revolving Loan (or a portion of any
Revolving Loan bearing interest at the Base Rate or the Eurocurrency
Rate and referred to as a Base Rate Loan or a Eurocurrency Loan),
and/or any Swingline Loan and/or any Foreign Currency Loan (which is
also sometimes referred to as a Eurocurrency Loan), individually or
collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue,
and to honor payment obligations under, Letters of Credit hereunder and
with respect to each Lender, the commitment of each Lender to purchase
participation interests in the Letters of Credit up to such Lender's
LOC Committed Amount as specified in Schedule 2.1, as such amount may
be reduced from time to time in accordance with the provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate amount of all
of the LOC Commitments of the Lenders to issue and participate in
Letters of Credit as referenced in Section 2.3(a) in an amount not to
exceed $35,000,000 at any time and, individually, the amount of each
Lender's LOC Commitment as specified in Schedule 2.1.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus
(ii) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed.
"Majority-Owned Foreign Subsidiary" means, at any date of
determination, each Foreign Subsidiary in which the Credit Parties
directly own, in the aggregate, at least 50% of the Voting Stock of
such Foreign Subsidiary.
"Material Adverse Effect" means a material adverse effect on (i) the
condition (financial or otherwise), operations, business, assets,
liabilities or prospects of the Borrower and its Subsidiaries taken as
a whole, (ii) the ability of the Borrower and its Subsidiaries as a
whole to perform any material obligation under the Credit Documents to
which it is a party or (iii) the rights and remedies of the Lenders
under the Credit Documents.
"Material Subsidiary" means ▇▇▇▇▇ Transportation International (H.K.) Ltd., a
Hong Kong corporation, FCI ------------------- Holdings International B.V., a
Netherlands corporation, ▇▇▇▇▇ Companies Canada Inc., a New Brunswick
corporation, and ▇▇▇▇▇ Air Freight, Inc., a Texas corporation and any other
Subsidiary of a Credit Party having (on a subconsolidated basis, i.e., for such
Subsidiary and its Subsidiaries) either (i) total net ---- revenues for the
preceding four fiscal quarter period equal to or greater than 10% of the
Borrower's consolidated total net revenues for the same period or (ii) total
assets, as of the last day of the preceding fiscal quarter, equal to or greater
than 10% of the Borrower's consolidated total assets on the same date, in each
case, based upon the Borrower's most recent annual or quarterly financial
statements delivered under Section 7.1.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Laws, including
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means March 31, 2003.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or assignee of
the business of such -------
company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received in
connection with an Equity Transaction or Asset Disposition net of
actual costs and taxes incurred by such Person in connection with and
attributable to such Equity Transaction or Asset Disposition. For
purposes of determining the Credit Parties' compliance with Section
7.9(c) hereof, Net Cash Proceeds shall include the amount of any debt
of the Borrower or any of its Subsidiaries which is converted into an
equity investment in the Borrower or any of its Subsidiaries subsequent
to the date hereof.
"Net Income" means for any period, the net income of the Borrower and
its Subsidiaries on a consolidated basis as determined in accordance
with GAAP.
"Net Worth" means, as of any date, shareholders' equity or net worth of
the Borrower and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP; provided, however, that foreign
currency translation adjustments under Financial Accounting Standards
Board Statement No. 52, "Foreign Currency Translation" shall not be
taken into account in calculating Net Worth; and provided, further,
that at any time that the negative foreign currency translation
adjustment of the Borrower and its Subsidiaries on a consolidated basis
exceeds negative $20,000,000, Net Worth shall be reduced by the amount
of such excess.
"Non-Excluded Taxes" is defined in Section 3.10.
"Note" or "Notes" means the Revolving Notes and/or the Swingline Note,
individually or collectively, as appropriate.
"Note Purchase Agreement" means that certain Note Purchase Agreement
dated as of April 15, 1996 among the Borrower and each of the
purchasers identified on Annex I attached thereto.
"Noteholders" means the holders from time to time of the 6.43% Senior
Notes due April 15, 2003 (and any notes issued in substitution thereof)
issued pursuant to the terms of the Note Purchase Agreement.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit A, in the case of Revolving Loans, or
Exhibit C, in the case of Foreign Currency Loans.
"Notice of Continuation/Conversion" means the written notice of
continuation or conversion in substantially the form of Exhibit D.
"Operating Lease" means, as applied to any Person, any lease (including
leases which may be terminated by the lessee at any time) of any
Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"Participation Agreement" means that certain Participation Agreement
dated as of April 3, 1998 among the Borrower, as construction agent and
as lessee, the guarantors party thereto, First Security Bank, National
Association, as owner trustee, the lenders identified therein, as
holders, the lenders identified therein, as lenders, and Bank of
America (then known as NationsBank of Texas, N.A.), as agent.
"Participation Interest" means the purchase by a Lender of a
participation in Letters of Credit and LOC Obligations as provided in
Section 2.2(c), in Swingline Loans as provided in Section 2.4(b)(iii)
and in Revolving Loans as provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means the acquisition of (a) at least 51% of
the capital stock of another Person or (b) all or substantially all of
the assets of another Person or of a division or particular business
unit of another Person; provided that each of the following conditions
are satisfied: (i) prior to such acquisition, the Borrower shall
deliver to the Agent and the Lenders evidence reasonably satisfactory
to the Agent and the Required Lenders demonstrating that after giving
effect to such acquisition, on a pro forma basis, as if such
acquisition occurred on the first day of the twelve month period ending
on the last day of the Borrower's most recently completed fiscal
quarter, the Borrower and its Subsidiaries would have been in
compliance with all financial covenants set forth in Section 7.9, (ii)
the acquisition is consummated pursuant to a negotiated acquisition
agreement and involves the acquisition of a Person (or, in the case of
an asset acquisition, of assets) involved in the same line of business
as the Borrower, (iii) the purchase price of such acquisition, when
taken together with all other Permitted Acquisitions during the
applicable fiscal year, shall not exceed (A) $30,000,000 in total
consideration (including cash, assumed indebtedness and earn-out
payments) during any fiscal year and (B) $15,000,000 in assumed
indebtedness during any fiscal year, (iv) after giving effect to the
acquisition, the representations and warranties set forth in Section 6
hereof shall be true and correct in all material respects on and as of
the date of such acquisition and (v) no Default or Event of Default
exists and is continuing or would result from such acquisition.
"Permitted Investments" means (i) cash and Cash Equivalents, (ii)
Investments by the Borrower in other Credit Parties, (iii) Investments
by the Credit Parties in Collateral Foreign Subsidiaries in an amount
not to exceed $20,000,000 in the aggregate during the term of this
Credit Agreement, (iv) Investments by any Credit Party or any
Collateral Foreign Subsidiary in any Credit Party, (v) Permitted
Acquisitions, (vi) Investments between Foreign Subsidiaries of the
Borrower and (vii) other loans, advances and investments of a nature
not contemplated in the foregoing subsections in an amount not to
exceed $10,000,000 in the aggregate at any time outstanding.
"Permitted Holders" means at any time the holders of the Permitted Senior
Indebtedness at such time. "Permitted Liens" means: --------------- (1)......
Liens in favor of the Collateral Agent; (2)...... Liens (other than Liens
created or imposed under ERISA) for taxes, assessments or governmental charges
or levies not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(3)...... statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens secure only amounts not yet due and
payable or, if due and -------- payable, are unfiled and no other action has
been taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(4)...... Liens (other than Liens created or imposed under ERISA) incurred or
deposits made by the Borrower and its Subsidiaries in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money); (5)...... Liens in connection with
attachments or judgments (including judgment or appeal bonds) provided that the
judgments secured shall, within 30 days after the entry thereof, -------- have
been discharged or execution thereof stayed pending appeal, or shall have been
discharged within 30 days after the expiration of any such stay; (6)......
easements, rights-of-way, restrictions (including zoning restrictions), minor
defects or irregularities in title and other similar charges or encumbrances
not, in any material respect, impairing the use of the encumbered Property for
its intended purposes; (7)...... Liens securing purchase money Indebtedness
(including Capital Leases and TROLS) to the extent permitted under Section
8.1(c), provided that any such Lien attaches only to -------- the Property
financed and such Lien attaches thereto concurrently with or within 90 days
after the acquisition thereof; (8)...... any interest of title of a lessor
under, and Liens arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to, leases
permitted by this Credit Agreement; (9)...... normal and customary rights of
setoff upon deposits of cash in favor of banks or other depository institutions;
(10)..... inchoate Liens arising under ERISA to secure current service pension
liabilities as they are incurred under the provisions of any Plan; (11).....
Liens securing Indebtedness to the extent permitted by Section 8.1(e); provided
that -------- any such Lien (A) was not granted in anticipation of or in
connection with the respective Permitted Acquisition and (B) does not attach to
or otherwise encumber any capital stock or other equity interest of the Borrower
or any of its Subsidiaries; (12)..... Liens on account receivables of ▇▇▇▇▇▇▇
▇▇▇▇▇ securing the Indebtedness permitted by Section 8.1(i); and (13)..... Liens
existing as of the date hereof and set forth on Schedule 1.1(b); provided that
--------------- -------- (a) no such Lien shall at any time be extended to or
cover any Property other than the Property subject thereto on the date hereof
and (b) in the event the Indebtedness secured by such Liens shall be amended,
extended, renewed, refunded or refinanced, (I) the Indebtedness shall not exceed
the principal amount of such Indebtedness outstanding immediately prior to being
amended, extended, renewed, refunded or refinanced and (II) the Indebtedness
shall contain terms and conditions no less favorable to the Borrower or any of
its Subsidiaries, than such existing Indebtedness.
"Permitted Senior Indebtedness" means Indebtedness of the Borrower
(other than Indebtedness under the Note Purchase Agreement, the
Indebtedness hereunder and Indebtedness under the Hedging Agreements)
which is secured pursuant to the Pledge Agreements and is held by a
Person that is a party to the Intercreditor Agreement.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreements" means the Pledge Agreements entered into by one or
more Credit Parties in favor of the Collateral Agent.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Bank of America as its prime rate, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Regulation T, U or X" means Regulation T, U or X, respectively, of the
FRB as from time to time in effect and any successor to all or a
portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding
of barrels, containers and other closed receptacles containing any
Materials of Environmental Concern).
"Rental Expense" means, for any period, the total rental expense for
Operating Leases of the Borrower and its Subsidiaries on a consolidated
basis for such period, as determined in accordance with GAAP.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the notice requirement
has been waived by regulation.
"Required Lenders" means, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the
Agent) and holding in the aggregate at least 67% of (i) the Commitments
or (ii) if the Commitments have been terminated, the outstanding Loans
and Participation Interests (including the Participation Interests of
the Issuing Lender in any Letters of Credit).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer, any Vice
President or other duly authorized officer of the Borrower.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock now
or hereafter outstanding, except (A) a dividend payable solely in
shares of that class to the holders of that class and (B) dividends and
other distributions payable to the Borrower, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of stock now or hereafter outstanding, and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock now or
hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Lender's
Revolving Commitment Percentage of the Aggregate Revolving Committed
Amount as set forth on Schedule 2.1, as such amount may be changed from
time to time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a fraction
(expressed as a decimal) the numerator of which is the Revolving
Commitment of such Lender at such time and the denominator of which is
the Aggregate Revolving Committed Amount at such time. The initial
Revolving Commitment Percentages are set forth on Schedule 2.1.
"Revolving Committed Amount" means, collectively, the aggregate amount
of all of the Revolving Commitments as referenced in Section 2.1(a)
and, individually, the amount of each Lender's Revolving Commitment as
specified in Schedule 2.1.
"Revolving Loans" is defined in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Revolving Loans
and the Foreign Currency Loans in substantially the form attached as
Exhibit B-1, individually or collectively, as appropriate.
"Revolving Obligations" means, collectively, the Revolving Loans, the
Foreign Currency Loans, the Swingline Loans and the LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in
the business of rating securities.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer
Plan.
"Solvent" means, with respect to any Person as of a particular date,
that on such date (i) such Person is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (ii)
such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (iii) such
Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's
Property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (iv) the fair value of the Property
of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person and (v) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., an Ontario corporation.
-------------
"Subsidiary" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50% of
the voting interests at any time. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time
outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" means $25,000,000..
--------------------------
"Swingline Lender" means Bank of America.
----------------
"Swingline Loan" is defined in Section 2.4(a).
"Swingline Note" means the promissory note of the Borrower in favor of
the Swingline Lender in the original principal amount of $25,000,000.
"TROL" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease.
"Unused Fee" is defined in Section 3.5(a).
"Voting Stock" means, with respect to any Person, capital stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right
so to vote has been suspended by the happening of such a contingency.
"Working Capital" means, at any time, with respect to the Borrower and
its Subsidiaries on a consolidated basis, the excess of current assets
(other than cash and Cash Equivalents) over current liabilities
(excluding the current portion of Indebtedness), as determined in
accordance with GAAP.
SECTION 1.2 Computation of Time Periods; etc.
---------------------------------
(a)......For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
(b)......Unless otherwise expressly provided herein, (i) references to
agreements (including this Credit Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto (but only to the extent such amendments or
other modifications are not prohibited by any Credit Document) and (ii)
references to any statute or regulation shall be construed to include
all statutory or regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such statute or regulation.
(c)......The term "including" means "including without limitation".
SECTION 1.3 Accounting Terms.
----------------
......... Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 7.1 hereof, consistent with the annual audited financial statements
referenced in Section 6.1); provided, however, if (a) the Borrower shall object
to determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Agent or the Required Lenders shall so object in
writing within 30 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Borrower to the Lenders as to which no such
objection shall have been made.
SECTION 2
CREDIT FACILITIES
SECTION 2.1 Revolving Loans.
---------------
(a)......Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans in Dollars (the "Revolving Loans") to the
Borrower from time to time in the amount of such Lender's Revolving
Commitment Percentage of such Revolving Loans for the purposes
hereinafter set forth; provided that (i) with regard to the Lenders
collectively, the Dollar Amount (determined as of the most recent
Determination Date) of Revolving Obligations outstanding shall not
exceed the Aggregate Revolving Committed Amount, as changed from time
to time, and (ii) with regard to each Lender individually, the Dollar
Amount (determined as of the most recent Determination Date) of such
Lender's Revolving Commitment Percentage of the sum of the Revolving
Loans plus Foreign Currency Loans plus LOC Obligations plus Swingline
Loans outstanding shall not exceed such Lender's Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurocurrency
Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
(b)...... Revolving Loan Borrowings.
------------------------- (1)...... Notice of Borrowing. The Borrower shall
request a Revolving Loan borrowing by written ------------------- notice (or
telephone notice promptly confirmed in writing) to the Agent not later than
11:00 A.M. (Chicago, Illinois time) on the Business Day of the requested
borrowing in the case of Base Rate Loans, and on the third Business Day prior to
the date of the requested borrowing in the case of Eurocurrency Loans
denominated in Dollars. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, and (D) whether the borrowing shall be comprised of Base
Rate Loans, Eurocurrency Loans or a combination thereof, and if Eurocurrency
Loans are requested, the Interest Period(s) therefor. If the Borrower shall fail
to specify in any such Notice of Borrowing (I) an applicable Interest Period in
the case of a Eurocurrency Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (II) the type of Revolving Loan
requested, then such notice shall be deemed to be a request for a Base Rate
Loan. Promptly upon receipt of each Notice of Borrowing pursuant to this Section
2.1(b)(i), the Agent shall notify each Lender of the contents thereof and of
such Lender's share of any borrowing to be made pursuant thereto. (2)......
Minimum Amounts. Each Revolving Loan shall be in a minimum aggregate principal
amount --------------- of $2,000,000, in the case of Eurocurrency Loans, or
$1,000,000 (or the remaining Revolving Committed Amount, if less), in the case
of Base Rate Loans, and in integral multiples of $100,000 in excess thereof.
(3)...... Advances. Each Lender will make its Revolving Commitment Percentage of
each -------- Revolving Loan borrowing available to the Agent for the account of
the Borrower as specified in Section 3.14(b), or in such other manner as the
Agent may specify in writing, by 1:00 P.M. (Chicago, Illinois time) on the date
specified in the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent (i) by crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent or (ii) as
directed by the Borrower in writing in the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by the
Agent.
(c)......Repayment. The principal amount of all Revolving Loans shall be due and
payable in full on the Maturity Date.
(d)......Interest. Subject to the provisions of Section 3.1,
-----------------
(1)...... Base Rate Loans. During such periods as Revolving Loans shall be
comprised in whole --------------- or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base Rate plus the
Applicable Percentage; ---- (2)...... Eurocurrency Loans. During such periods as
Revolving Loans shall be comprised in ------------------ whole or in part of
Eurocurrency Loans, such Eurocurrency Loans shall bear interest at a per annum
rate equal to the Eurocurrency Rate plus the Applicable Percentage. ----
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e)......Revolving Notes. The Revolving Loans of each Lender shall be evidenced
by a duly executed Revolving Note in favor of such Lender.
(f)......Maximum Number of Eurocurrency Borrowings. The Borrower will be limited
to a maximum number of five borrowings of Eurocurrency Loans
outstanding at any time. For purposes hereof, borrowings of
Eurocurrency Loans with separate or different Interest Periods will be
considered as separate borrowings even if their Interest Periods expire
on the same date.
SECTION 2.2 Letter of Credit Subfacility.
----------------------------
(a)......Issuance. During the Commitment Period, subject to the terms and
conditions hereof and of the LOC Documents, if any, and such other
terms and conditions which the Issuing Lender may reasonably require,
the Issuing Lender shall issue Letters of Credit in Dollars, Available
Foreign Currencies and Additional Foreign Currencies, and the Lenders
shall participate in such Letters of Credit for the purposes
hereinafter set forth; provided that (i) the aggregate Dollar Amount of
LOC Obligations shall not exceed the LOC Committed Amount, (ii) with
regard to the Lenders collectively, (A) the Dollar Amount (determined
as of the most recent Determination Date) of the sum of Foreign
Currency Loans plus LOC Obligations with respect to Letters of Credit
denominated in Available Foreign Currencies and Additional Foreign
Currencies shall not exceed $30,000,000 at any time, and (B) the Dollar
Amount (determined as of the most recent Determination Date) of the
Revolving Obligations shall not exceed the Aggregate Revolving
Committed Amount, as changed from time to time, and (iii) with regard
to each Lender individually, (A) the Dollar Amount (determined as of
the most recent Determination Date) of such Lender's Revolving
Commitment Percentage of the sum of Revolving Loans plus LOC
Obligations plus Foreign Currency Loans plus Swingline Loans shall not
exceed such Lender's Revolving Committed Amount and (B) the Dollar
Amount (determined as of the most recent Determination Date) of such
Lender's portion (including participation interests therein) of the sum
of Foreign Currency Loans and LOC Obligations denominated in Available
Foreign Currencies and Additional Foreign Currencies shall not exceed
such Lender's Foreign Currency Committed Amount. Letters of Credit
issued hereunder shall not have an original expiry date more than one
year from the date of issuance or extension, nor an expiry date,
whether as originally issued or by extension, extending beyond the
Maturity Date. Each Letter of Credit shall comply with the related LOC
Documents and shall be either (x) a standby letter of credit issued to
support obligations (including pension or insurance obligations),
contingent or otherwise, of the Borrower or, subject to subsection (f)
below, of a Subsidiary of the Borrower, or (y) a commercial letter of
credit in respect of the purchase of goods or services by the Borrower
or, subject to subsection (f) below, a Subsidiary of the Borrower in
the ordinary course of business. The issuance date of each Letter of
Credit shall be a Business Day.
(b)......Notice and Reports. Each request for the issuance of a Letter of Credit
shall be submitted by the Borrower to the Issuing Lender at least three
Business Days prior to the requested date of issuance (or such shorter
period as may be agreed by the Issuing Lender). The Issuing Lender will
provide to the Agent at least monthly, and more frequently upon request
by the Agent or the Required Lenders, a detailed summary report on its
Letters of Credit and the activity thereon, in form and substance
acceptable to the Agent. In addition, the Issuing Lender will provide
to the Agent for dissemination to the Lenders at least quarterly, and
more frequently upon request by the Agent or the Required Lenders, a
detailed summary report on its Letters of Credit and the activity
thereon, including the beneficiary, the face amount and the expiry
date. The Issuing Lender will provide copies of the Letters of Credit
to the Agent and the Lenders promptly upon request.
(c)......Participation.
----------------------
(1)...... On the date hereof, each Lender shall automatically acquire a
participation in the liability of the Issuing Lender under each Existing Letter
of Credit in an amount equal to its Revolving Commitment Percentage of such
Existing Letter of Credit. Each Existing Letter of Credit shall be deemed for
all purposes of this Credit Agreement and the other Credit Documents to be a
Letter of Credit. (2)...... Each Lender, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations arising thereunder,
in each case in an amount equal to its Revolving Commitment Percentage of the
obligations under such Letter of Credit and shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and be obligated
to pay to the Issuing Lender therefor and discharge when due, its pro rata share
of the obligations arising under such Letter of Credit. In the case of Letters
of Credit denominated in Dollars or an Available Foreign Currency, without
limiting the scope and nature of each Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed for a
drawing as required hereunder or under any such Letter of Credit, each such
Lender shall pay to the Issuing Lender in the same currency as the respective
Letter of Credit an amount equal to its Revolving Commitment Percentage of such
unreimbursed drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of subsection (d)
hereof. In the case of Letters of Credit denominated in an Additional Foreign
Currency, without limiting the scope and nature of each Lender's participation
in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed for a drawing as required hereunder or under any such Letter of
Credit, each such Lender shall pay to the Issuing Lender the Dollar Amount (as
of the date of such drawing) equal to its Revolving Commitment Percentage of
such unreimbursed drawing in same day funds on the day of notification by the
Issuing Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Lender to so reimburse the Issuing
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of a Default, an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair the obligation of
the Borrower to reimburse the Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
(d)......Reimbursement. The Issuing Lender will promptly notify the Borrower of
any drawing under any Letter of Credit. In the case of Letters of
Credit denominated in Dollars or an Available Foreign Currency, unless
the Borrower shall immediately notify the Issuing Lender that the
Borrower intends to otherwise reimburse the Issuing Lender for such
drawing, the Borrower shall be deemed to have requested that the
Lenders make a borrowing of Revolving Loans or Foreign Currency Loans,
as applicable, in the same currency as the respective Letter of Credit
in an amount equal to such drawing as provided in subsection (e)
hereof, the proceeds of which will be used to satisfy the related
reimbursement obligations. In the case of Letters of Credit denominated
in an Additional Foreign Currency, unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to
otherwise reimburse the Issuing Lender for such drawing, the Borrower
shall be deemed to have requested that the Lenders make a borrowing of
Revolving Loans in the Dollar Amount (as of the date of such drawing)
equal to such drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the Issuing Lender on
the day of drawing under any Letter of Credit (either with the proceeds
of Revolving Loans or Foreign Currency Loans, as applicable, obtained
hereunder or otherwise) in same day funds. If the Borrower shall fail
to reimburse the Issuing Lender as provided above, the Dollar Amount of
the unreimbursed amount of such drawing shall bear interest at a per
annum rate equal to the Base Rate plus 2%. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or
defense to payment the Borrower may claim or have against the Issuing
Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including any defense based on any
failure of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. In
the case of Letters of Credit denominated in Dollars or an Available
Foreign Currency, the Issuing Lender will promptly notify the other
Lenders of the amount of any unreimbursed drawing and each Lender shall
promptly pay to the Agent for the account of the Issuing Lender in the
same currency as the respective Letter of Credit, in immediately
available funds, the amount of such Lender's pro rata share of such
unreimbursed drawing. In the case of Letters of Credit denominated in
an Additional Foreign Currency, the Issuing Lender will promptly notify
the other Lenders of the amount of any unreimbursed drawing and each
Lender shall promptly pay to the Agent for the account of the Issuing
Lender the Dollar Amount (as of the date of such unreimbursed drawing),
in immediately available funds, of the amount of such Lender's pro rata
share of such unreimbursed drawing. Such payment shall be made on the
day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (Chicago, Illinois
time); otherwise such payment shall be made at or before 12:00 Noon
(Chicago, Illinois time) on the next succeeding Business Day. If such
Lender does not pay such amount to the Issuing Lender in full upon such
request, such Lender shall, on demand, pay to the Agent for the account
of the Issuing Lender interest on the unpaid amount during the period
from the date of such drawing until such Lender pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within two
Business Days of the date that such Lender is required to make payment
of such amount pursuant to the preceding sentence, the Federal Funds
Rate and thereafter at the Base Rate. Each Lender's obligation to make
such payment to the Issuing Lender, and the right of the Issuing Lender
to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever, shall be made without regard
to the termination of this Credit Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or the
acceleration of the obligations of the Borrower hereunder and shall be
made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a
Lender to the Issuing Lender, such Lender shall, automatically and
without any further action on the part of the Issuing Lender or such
Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the related unreimbursed drawing portion of the
LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect
thereto.
(e)......Repayment with Revolving Loans and Foreign Currency Loans. In the case
of any Letter of Credit denominated in Dollars or an Available Foreign
Currency, on any day on which the Borrower shall have requested, or
been deemed to have requested, a borrowing of Revolving Loans or
Foreign Currency Loans, as appropriate, to reimburse a drawing under a
Letter of Credit, the Agent shall give notice to the Lenders that a
borrowing of Revolving Loans or Foreign Currency Loans, as appropriate,
has been requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case a
borrowing of Revolving Loans or Foreign Currency Loans, as appropriate,
comprised of Base Rate Loans (or Eurocurrency Loans to the extent the
Borrower has complied with the procedures of Section 2.1(b)(i) with
respect thereto) shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments pursuant to
Section 9.2) pro rata based on the respective Revolving Commitment
Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. In the case of any
Letter of Credit denominated in an Additional Foreign Currency, on any
day on which the Borrower shall have requested, or been deemed to have
requested, a borrowing of Revolving Loans to reimburse a drawing under
such Letter of Credit, the Agent shall give notice to the Lenders that
a borrowing of Revolving Loans has been requested or deemed requested
by the Borrower to be made in connection with a drawing under a Letter
of Credit denominated in an Additional Foreign Currency, in which case
Revolving Loans in the Dollar Amount (on the date of such drawing)
equal to such drawing comprised of Base Rate Loans (or Eurocurrency
Loans to the extent the Borrower has complied with the procedures of
Section 2.1(b)(i) with respect thereto) shall be immediately made to
the Borrower by all Lenders (notwithstanding any termination of
Commitments pursuant to Section 9.2) pro rata based on the respective
Revolving Commitment Percentages of the Lenders (determined before
giving effect to any termination of the Commitments pursuant to Section
9.2) and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each Lender
hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan or Foreign Currency Loan, as the case may be,
immediately upon any such request or deemed request in the amount, in
the manner and on the date specified in the preceding sentence
notwithstanding (i) that the amount of such borrowing may not comply
with the minimum amount for borrowings of Revolving Loans or Foreign
Currency Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for Revolving Loans or Foreign Currency
Loans, as the case may be, to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans or Foreign Currency Loans, as the case may be, are
otherwise permitted to be made hereunder or (vi) any termination of the
Commitments relating thereto immediately prior to or contemporaneously
with such borrowing. In the event that any Revolving Loan or Foreign
Currency Loan, as the case may be, cannot for any reason be made on the
date otherwise required above (including as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
the Borrower), then each Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Issuing Lender such
participation in the outstanding LOC Obligations as shall be necessary
to cause such Lender to share in such LOC Obligations ratably (based
upon the respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2)), provided that in the event such payment is
not made on the day of drawing, such Lender shall pay in addition to
the Issuing Lender interest on the amount of its unfunded Participation
Interest at a rate equal to, if paid within two Business Days of the
date of drawing, the Federal Funds Rate, and thereafter at the Base
Rate.
(f)......Designation of Subsidiary as Account Party. Notwithstanding anything to
the contrary set forth in this Credit Agreement, including Section
2.2(a), a Letter of Credit issued hereunder may contain a statement to
the effect that such Letter of Credit is issued for the account of a
Subsidiary of the Borrower, provided that, notwithstanding such
statement, the Borrower shall be the actual account party for all
purposes of this Credit Agreement for such Letter of Credit, and such
statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g)......Renewal, Extension. The renewal or extension of any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h)......Uniform Customs and Practices. The Issuing Lender may have the Letters
of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP") or the most recent
International Standby Practices issued by the Institute for
International Banking Law & Practice, Inc. (the "ISP"), in which case
the UCP or the ISP may be incorporated therein and deemed in all
respects to be a part thereof.
(i)......Indemnification; Nature of Issuing Lender's Duties.
-----------------------------------------------------------
(1)...... In addition to its other obligations under this Section 2.2, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees actually incurred) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of the Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions, herein
called "Government Acts"). --------------- (2)...... As between the
Borrower and the Issuing Lender, the Borrower shall assume all risks of the
acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible for: (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
that may prove to be invalid or ineffective for any reason; (C) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) any loss or delay in the transmission or otherwise
of any document required to make a drawing under a Letter of Credit or of
the proceeds thereof; or (E) any consequences arising from causes beyond
the control of the Issuing Lender, including action of any Governmental
Authority. None of the above shall affect, impair, or prevent the vesting
of the Issuing Lender's rights or powers hereunder. (3)...... In
furtherance and extension and not in limitation of the specific provisions
set forth above, any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related certificates, if
taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to the Borrower. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are hereby assumed by
the Borrower, including any and all risks of actions by any Governmental
Authority. The Issuing Lender shall not, in any way, be liable for any
failure by the Issuing Lender or anyone else to pay any drawing under any
Letter of Credit as a result of any action of any Governmental Authority or
any other cause beyond the control of the Issuing Lender. (4)...... Nothing
in this subsection (i) is intended to limit the reimbursement obligations
of the Borrower contained in subsection (d) above. The obligations of the
Borrower under this subsection (i) shall survive the termination of this
Credit Agreement. No act or omissions of any current or prior beneficiary
of a Letter of Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under this Credit
Agreement. (5)...... Notwithstanding anything to the contrary contained in
this subsection (i), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
(A) arising solely out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction, or (B)
caused by the Issuing Lender's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation,
court order or decree.
(j)......Responsibility of Issuing Lender. It is expressly understood and agreed
that the obligations of the Issuing Lender hereunder to the Lenders are
only those expressly set forth in this Credit Agreement and that the
Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall
have acquired actual knowledge that any such condition precedent has
not been satisfied; provided, however, that nothing set forth in this
Section 2.2 shall be deemed to prejudice the right of any Lender to
recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.2 in the event
that it is determined by a court of competent jurisdiction that any
payment with respect to a Letter of Credit constituted gross negligence
or willful misconduct on the part of the Issuing Lender.
(k)......Conflict with LOC Documents. In the event of any conflict between this
Credit Agreement and any LOC Document (including any letter of credit
application, but excluding any Letter of Credit), this Credit Agreement
shall control.
SECTION 2.3 Foreign Currency Loan Subfacility.
---------------------------------
(a)......Foreign Currency Commitment. During the Commitment Period, each Lender
severally agrees to make certain foreign currency revolving loans in
Available Foreign Currencies ("Foreign Currency Loans") to the Borrower
from time to time in the amount of such Lender's Foreign Currency
Commitment Percentage of such Foreign Currency Loans; provided,
however, that the Dollar Amount (as determined as of the most recent
Determination Date) of the sum of Foreign Currency Loans outstanding at
any time shall not exceed the Foreign Currency Committed Amount; and
provided, further, (i) with regard to each Lender individually, (A) the
Dollar Amount (determined as of the most recent Determination Date) of
such Lender's Revolving Commitment Percentage of the sum of the
Revolving Loans plus Foreign Currency Loans plus LOC Obligations plus
Swingline Loans shall not exceed such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount, and (B) the Dollar Amount
(determined as of the most recent Determination Date) of such Lender's
portion (including participation interests therein) of the Foreign
Currency Loans outstanding shall not exceed such Lender's Foreign
Currency Commitment Percentage of the Foreign Currency Committed
Amount, (ii) with regard to the Lenders collectively, the Dollar Amount
(as determined as of the most recent Determination Date) of the
Revolving Obligations shall not exceed the Aggregate Revolving
Committed Amount, and (iii) with regard to the Lenders collectively,
the Dollar Amount (determined as of the most recent Determination Date)
of the sum of Foreign Currency Loans plus LOC Obligations with respect
to Letters of Credit denominated in Available Foreign Currencies and
Additional Foreign Currencies shall not exceed $30,000,000 at any time.
Foreign Currency Loans shall consist solely of Eurocurrency Loans and
may be repaid and reborrowed in accordance with the provisions hereof.
For purposes hereof, Eurocurrency Loans with different Interest Periods
and/or in different currencies shall be considered as separate
Eurocurrency Loans, even if they begin on the same date, although
borrowings, continuations and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods
to constitute a new Eurocurrency Loan with a single Interest Period and
in the same currency.
(b)......Foreign Currency Loan Borrowings.
-----------------------------------------
(1)...... Notice of Borrowing. The Borrower shall request a Foreign
Currency Loan borrowing by ------------------- written notice (or telephone
notice promptly confirmed in writing) to the Agent not later than 11:00 A.M.
(Chicago, Illinois time) on the third Business Day prior to the date of the
requested borrowing. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Foreign Currency Loan is requested, (B) the requested
Available Foreign Currency, (C) the date of the requested borrowing (which shall
be a Business Day), (D) the aggregate principal amount to be borrowed and (E)
the Interest Period(s) therefor. If the Borrower shall fail to specify in any
such Notice of Borrowing an applicable Interest Period, then such notice shall
be deemed to be a request for an Interest Period of one month. The Agent shall
give notice to each Lender promptly upon receipt of each Notice of Borrowing,
the contents thereof and each such Lender's share of any borrowing to be made
pursuant thereto. (2)...... Minimum Amounts. Each Foreign Currency Loan
borrowing shall be in a minimum aggregate --------------- principal amount equal
to the applicable Foreign Currency Equivalent of $2,000,000 and integral
multiples of the applicable Foreign Currency Equivalent of $100,000 in excess
thereof (or the remaining amount of the Foreign Currency Commitment, if less).
(3)...... Advances. Each Lender will make its Foreign Currency Commitment
Percentage of each -------- Foreign Currency Loan borrowing available to the
Agent by 1:00 P.M., local time in the place where such deposit is required to be
made by the succeeding terms hereof, on the date specified in the applicable
Notice of Borrowing by deposit with the Agent, at the same place and same
account specified in Section 3.14(b) for payments by the Borrower in the
applicable Available Foreign Currency, of same day funds in the applicable
Available Foreign Currency. Such deposit will be made to such accounts in the
primary market for such Available Foreign Currency as the Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Agent shall promptly make such funds available to the
Borrower by wire transfer to such accounts as the Borrower shall have specified
to the Agent.
(c)......Repayment. The principal amount of all Foreign Currency Loans shall be
due and payable in full in the applicable Available Foreign Currency on
the Maturity Date.
(d)......Interest. Subject to the provisions of Section 3.1, Foreign Currency
Loans shall bear interest at a per annum rate equal to the Eurocurrency
Rate plus the Applicable Percentage. Interest on Foreign Currency Loans
shall be payable (in the applicable Available Foreign Currency) in
arrears on each applicable Interest Payment Date (or at such other
times as may be specified herein).
(e)......Foreign Currency Notes. The Foreign Currency Loans of each Lender shall
be evidenced by a Revolving Note in favor of such Lender.
SECTION 2.4 Swingline Loan Subfacility.
--------------------------
(a)......Swingline Commitment. Subject to the terms and conditions hereof, the
Swingline Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a "Swingline Loan" and,
collectively, the "Swingline Loans") from time to time from the
Effective Date until the earlier of (i) the Business Day one day prior
to the date of Bank of America's resignation as Agent and (ii) the
Maturity Date; provided that (i) the aggregate amount of Swingline
Loans outstanding at any time shall not exceed the Swingline Committed
Amount and (ii) with regard to the Lenders collectively, the amount of
outstanding Revolving Obligations outstanding (including the Dollar
Amount (determined as of the most recent Determination Date) of the
outstanding Foreign Currency Loans) shall not exceed the Aggregate
Revolving Committed Amount, as changed from time to time. Swingline
Loans hereunder shall be made in accordance with the provisions of this
Section 2.4, and may be repaid and reborrowed in accordance with the
provisions hereof.
(b)......Swingline Loans.
------------------------
(1)...... Notices; Disbursement. Whenever the Borrower desires a Swingline
Loan it shall give --------------------- written notice (or telephone notice
promptly confirmed in writing) to the Swingline Lender not later than 11:00 A.M.
(Chicago, Illinois time) on the Business Day of the requested Swingline Loan.
Each such notice shall be irrevocable and shall specify (A) that a Swingline
Loan is requested, (B) the date of the requested Swingline Loan (which shall be
a Business Day) and (C) the principal amount of the Swingline Loan requested.
Each Swingline Loan shall have such maturity date as the Swingline Lender and
the Borrower shall agree upon receipt by the Swingline Lender of any such notice
from the Borrower. The Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan to the Borrower by 3:00 P.M. (Chicago, Illinois
time) on the Business Day of the requested borrowing. (2)...... Minimum Amounts.
Each Swingline Loan shall be in a minimum principal amount of ---------------
$1,000,000 and in integral multiples of $100,000 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less). (3)......
Repayment of Swingline Loans. The principal amount of all Swingline Loans shall
be ---------------------------- due and payable on the earlier of (A) the
Business Day one day prior to the date of Bank of America's resignation as Agent
hereunder and (B) the Maturity Date. The Swingline Lender may, at any time, in
its sole discretion, by written notice to the Borrower and the Lenders, demand
repayment of the Swingline Loans by way of a borrowing of Revolving Loans in
which case the Borrower shall be deemed to have requested a borrowing of
Revolving Loans comprised solely of Base Rate Loans in the amount of such
Swingline Loans; provided that any such demand shall be deemed to have --------
been given one Business Day prior to the Maturity Date and on the date of the
occurrence of any Event of Default described in Section 9.1 and upon
acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan in the amount, in
the manner and on the date specified in the preceding sentence notwithstanding
(I) that the amount of such --------------- borrowing may not comply with the
minimum amount for borrowings of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Section 5.2 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (V) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (VI) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including as
a result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause such Lender to share
in such Swingline Loans ratably (based upon the respective Revolving Commitment
Percentages of the Lenders (determined before giving effect to any termination
of the Commitments pursuant to Section 9.2)), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is purchased and (B) at
the time any purchase of participations pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay to the Swingline Lender, to
the extent not paid to the Swingline Lender by the Borrower in accordance with
the terms of subsection (c) below, interest on the principal amount of the
participation purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such participation, at a rate equal to, if paid within two Business Days of the
date on which such borrowing has occurred, the Federal Funds Rate, and
thereafter at the Base Rate.
(c)......Interest on Swingline Loans. Subject to the provisions of Section 3.1,
(i) each Swingline Loan shall bear interest at per annum rate equal to
the Eurocurrency Rate (calculated for such periods, not to exceed seven
days, as the Borrower and the Swingline Lender may agree, it being
understood that for purposes of the definition of Eurocurrency Rate and
any related definition, any such period shall be deemed to be an
"Interest Period") plus 0.25% plus the Applicable Percentage; and (ii)
interest on Swingline Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times, not less
frequently than quarterly, as may be agreed by the Borrower and the
Swingline Lender).
(d)......Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in
substantially the form of Exhibit B-2.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
------------
.........At the written direction of the Required Lenders upon the occurrence,
and during the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall bear interest, payable on
demand, at a per annum rate 2% greater than the rate which would otherwise be
applicable (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the Base Rate).
3.2......Continuation and Conversion.
---------------------------
.........Subject to the terms of Section 5.2, the Borrower shall have the
option, on any Business Day, to continue existing Loans into a subsequent
permissible Interest Period or to convert Revolving Loans into Revolving Loans
of another interest rate type; provided, however, that (i) except as provided in
Section 3.8, Eurocurrency Loans may be converted into Base Rate Loans only on
the last day of the Interest Period applicable thereto, (ii) Eurocurrency Loans
may be continued, and Base Rate Loans may be converted into Eurocurrency Loans,
only if no Default or Event of Default is in existence on the date of
continuation or conversion and the conditions set forth in subsections (a), (b)
and (c) of Section 5.2 have been satisfied, (iii) Loans continued as, or
converted into, Eurocurrency Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in, with respect to Revolving Loans, Section
2.1(b)(ii) or, with respect to Foreign Currency Loans, Section 2.3(b)(ii) and
(iv) any request for continuation or conversion of a Eurocurrency Loan which
shall fail to specify an Interest Period shall be deemed to be a request for an
Interest Period of one month. Each such continuation or conversion shall be
effected by the Borrower by giving a Notice of Continuation/Conversion (or
telephone notice promptly confirmed in writing) to the Agent prior to 11:00 A.M.
(Chicago, Illinois time) on the Business Day of, in the case of the conversion
of a Eurocurrency Loan into a Base Rate Loan, and on the third Business Day
prior to, in the case of the continuation of a Eurocurrency Loan as, or
conversion of a Base Rate Loan into, a Eurocurrency Loan, the date of the
proposed continuation or conversion, specifying the date of the proposed
continuation or conversion, the Loans to be so continued or converted, the types
of Loans into which such Loans are to be converted and, if appropriate, the
applicable Interest Periods with respect thereto. Each request for continuation
or conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsections (a) through (c)
of Section 5.2. In the event the Borrower fails to request continuation or
conversion of any Eurocurrency Loan in accordance with this Section, or any such
conversion or continuation is not permitted or required by this Section, then
(i) in the case of any Eurocurrency Loan which is not a Foreign Currency Loan,
such Eurocurrency Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto and (ii) in the case of any
Foreign Currency Loan, such Eurocurrency Loan shall be automatically continued
as a Eurocurrency Loan in the same Available Foreign Currency for an Interest
Period of one month. The Agent shall give each Lender notice as promptly as
practicable of any such proposed continuation or conversion affecting any Loan.
3.3......Prepayments.
-----------
(a)......Voluntary Prepayments. Loans may be repaid in whole or in part without
premium or penalty; provided that (i) any prepayment of Eurocurrency
Loans other than at the end of the Interest Period applicable thereto
will be subject to terms of Section 3.11, (ii) Eurocurrency Loans may
be prepaid by the Borrower only after giving three Business Days' prior
written notice to the Agent of the requested prepayment, (iii) Base
Rate Loans may be prepaid by the Borrower by giving notice to the Agent
prior to 11:00 a.m. (Chicago, Illinois time) on the date of the
requested prepayment, and (iv) each partial prepayment shall be in a
minimum principal Dollar Amount of $1,000,000 and in integral multiples
of $100,000 in excess thereof. Amounts prepaid hereunder may be
reborrowed in accordance with the provisions hereof. Unless otherwise
specified by the Borrower, any voluntary prepayments shall be applied
first to Base Rate Loans and then to Eurocurrency Loans in direct order
of their Interest Period maturities.
(b)......Mandatory Prepayments. If at any time (i) the Dollar Amount (as
determined as of the most recent Determination Date) of the Revolving
Obligations then outstanding shall exceed the Aggregate Revolving
Committed Amount, as changed from time to time, (ii) the aggregate
amount of LOC Obligations outstanding shall exceed the LOC Committed
Amount, or (iii) the Dollar Amount (determined as of the most recent
Determination Date) of Foreign Currency Loans shall exceed the Foreign
Currency Committed Amount, the Borrower shall immediately make payment
on the Loans and/or to a cash collateral account in respect of the LOC
Obligations, in an amount sufficient to eliminate the deficiency. Any
such mandatory prepayments shall be applied first to Loans in the
currency in which such payment is received (first to Base Rate Loans
and then to Eurocurrency Loans in direct order of their Interest Period
maturities) and then to a cash collateral account to secure LOC
Obligations. Amounts prepaid hereunder may be reborrowed in accordance
with the provisions hereof.
3.4 Changes in Commitments.
----------------------
3.4......(a) Voluntary Reductions in Commitments.
--------------------------------------
(1) Revolving Commitment. The Borrower may from time to
time permanently reduce the aggregate amount of the
Revolving Commitments in whole or in part without
premium or penalty except as provided in Section 3.11
upon three Business Days' prior written notice to the
Agent, provided that (A) after giving effect to any
voluntary reduction the Dollar Amount (as determined
as of the most recent Determination Date) of the
Revolving Obligations then outstanding shall not
exceed the Aggregate Revolving Committed Amount, as
changed from time to time, and (B) partial reductions
shall be in the minimum principal amount of
$1,000,000, and in integral multiples of $1,000,000
in excess thereof.
(2) Foreign Currency Commitment. The Borrower may from
time to time permanently reduce the aggregate amount
of the Foreign Currency Commitments in whole or in
part without premium or penalty except as provided in
Section 3.11 upon three Business Days' prior written
notice to the Agent, provided that (A) after giving
effect to any voluntary reduction the Dollar Amount
(as determined as of the most recent Determination
Date) of the Foreign Currency Loans then outstanding
shall not exceed the Foreign Currency Committed
Amount, as reduced from time to time, (B) after
giving effect to any voluntary reduction the Dollar
Amount (as determined as of the most recent
Determination Date) of the Revolving Obligations then
outstanding shall not exceed the Aggregate Revolving
Committed Amount, as changed from time to time and
(C) partial reductions shall be in the minimum
principal amount of $1,000,000, and in integral
multiples of $1,000,000 in excess thereof.
(b) Mandatory Reductions in Commitments. At such time as the Borrower
or any of its Subsidiaries consummates an Asset Disposition, the
Borrower shall immediately notify the Agent of (a) the consummation of
such Asset Disposition and (b) the amount of Net Cash Proceeds received
by the Borrower or Subsidiary in connection with such Asset
Disposition. The Credit Parties hereby agree that the aggregate amount
of the Revolving Commitments shall be permanently reduced by an amount
equal to the Net Cash Proceeds received by the Borrower or any
Subsidiary from each such Asset Disposition.
(c) Optional Increase in Revolving Commitments. Optional Increase in
Aggregate Revolving Committed Amount.
---------------------------------------------------
--------------------------------------------------------- The Borrower may, from
time to time, by means of a letter to the Agent substantially in the form of
Exhibit I, request that the Revolving Commitments be increased by (a) increasing
the Revolving --------- Commitment of one or more Lenders which have agreed to
such increase and/or (b) adding one or more commercial banks or other Persons as
a party hereto (each an "Additional Lender") with a Revolving Commitment in an
amount agreed to by any such Additional Lender; provided that (i) no Additional
Lender -------- shall be added as a party hereto without the written consent of
the Agent (which shall not be unreasonably withheld) or if a Default or an Event
of Default exists, and (ii) in no event shall the Aggregate Revolving Committed
Amount exceed $175,000,000 without the written consent of all Lenders. Any
increase in the Aggregate Revolving Committed Amount pursuant to this Section
3.4(c) shall be -------------- effective three Business Days after the date on
which the Agent has received and accepted the applicable increase letter in the
form of Annex 1 to Exhibit I (in the case of an increase in the Revolving
--------- Commitment of an existing Lender) or assumption letter in the form of
Annex 2 to Exhibit I (in the case --------- of the addition of a commercial bank
or other Person as a new Lender). The Agent shall promptly notify the Borrower
and the Lenders of any increase in the amount of the Aggregate Revolving
Committed Amount pursuant to this Section 3.4(c) and of the Revolving Commitment
and Revolving Commitment Percentage of -------------- each Lender after giving
effect thereto. The Borrower acknowledges that, in order to maintain Loans in
accordance with each Lender's Revolving Commitment Percentage, a reallocation of
the Revolving Commitments as a result of a non-pro-rata increase in the
Aggregate Revolving Committed Amount may require prepayment of all or portions
of certain Loans on the date of such increase (and any such prepayment shall be
subject to the provisions of Section 3.11). In connection with any increase in
the ------------ Aggregate Revolving Committed Amount, the Borrower agrees to
deliver new Notes or replacement Notes to the order of each Additional Lender
and each Lender which is increasing its Revolving Commitment in the amount of
such Lender's Revolving Commitment after giving effect to such increase in the
Aggregate Revolving Committed Amount.
3.5 Fees.
----
(a) Unused Fee. In consideration of the Revolving Commitments
hereunder, the Borrower agrees to pay to the Agent, for the ratable
benefit of the Lenders, a fee (the "Unused Fee") equal to the
Applicable Percentage per annum for Unused Fees then in effect
(calculated on the basis of actual number of days elapsed in a year of
360 days) on the average daily unused portion of the Revolving
Committed Amount for the applicable period. The Unused Fee shall
accrue from the date hereof and shall be payable quarterly in arrears
on the 15th day following the last day of each calendar quarter for
the immediately preceding quarter (or portion thereof) beginning with
the first such date to occur after the date hereof. For purposes of
computation of the Unused Fee, Swingline Loans shall not be counted
toward or considered usage under the Revolving Loan facility.
(b) Letter of Credit Fees.
------------------------
(1) Letter of Credit Issuance Fee. In consideration of
the issuance of Letters of Credit hereunder, the
Borrower promises to pay to the Agent, for the
account of each Lender, a fee (the "Letter of Credit
Fee") on such Lender's Revolving Commitment
Percentage of the average daily maximum amount
available to be drawn under each such Letter of
Credit, computed at a per annum rate for each day
from the date of issuance to the date of expiration
equal to the Applicable Percentage for the Letter of
Credit Fee. The Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each
March, June, September and December for the
immediately preceding quarter (or a portion thereof).
(2) Issuing Lender Fee. In addition to the Letter of
Credit Fee payable pursuant to clause (i) above, the
Borrower promises to pay to the applicable Issuing
Lender for its own account without sharing by the
other Lenders (A) a letter of credit fronting fee of
0.125% per annum on the average daily maximum amount
available to be drawn under outstanding Letters of
Credit, payable quarterly in arrears with the Letter
of Credit Fee, and (B) customary charges from time to
time of the Issuing Lender with respect to the
issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under,
such Letters of Credit.
(c) Administrative Fees. The Borrower agrees to pay to the Agent, for its
own account, an annual ------------------- administrative fee and such other
fees, if any, referred to in the Agent's Fee Letter.
3.6 Capital Adequacy.
----------------
If any Lender has determined, after the date hereof, that the adoption
or the effectiveness of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto.
3.7 Inability To Determine Interest Rate.
------------------------------------
If prior to the first day of any Interest Period, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate for the applicable currency for such Interest Period, the Agent shall give
facsimile or telephonic notice thereof to the Borrower and the Lenders as soon
as practicable thereafter. If such notice is given (a) any Eurocurrency Loans
requested to be made on the first day of such Interest Period shall, unless the
Borrower cancels the request for such Loans, be made as Base Rate Loans and (b)
any Loans that were to have been converted on the first day of such Interest
Period to or continued as Eurocurrency Loans shall be converted to or continued
as Base Rate Loans (in each case, if the requested Eurocurrency Loans were
Foreign Currency Loans, in the Dollar Amount of such requested Loans). Until
such notice has been withdrawn by the Agent, no further Eurocurrency Loans in
the affected currency shall be made or continued as such, nor (if the affected
currency is Dollars) shall the Borrower have the right to convert Base Rate
Loans to Eurocurrency Loans.
3.8 Illegality.
----------
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the date hereof shall make it unlawful for any Lender to make or
maintain Eurocurrency Loans or Foreign Currency Loans as contemplated by this
Credit Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurocurrency Loans or Foreign Currency Loans, continue
Eurocurrency Loans or Foreign Currency Loans as such and convert Base Rate Loans
to Eurocurrency Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurocurrency
Loans or Foreign Currency Loans, such Lender shall then have a commitment only
to make a Base Rate Loan when a Eurocurrency Loan or Foreign Currency Loan is
requested and (c) such Lender's Loans then outstanding as Eurocurrency Loans or
Foreign Currency Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurocurrency Loan or Foreign Currency Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 3.11.
3.9 Requirements of Law.
-------------------
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the date hereof (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurocurrency Loans made by it or
its obligation to make Eurocurrency Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for (i)
Non-Excluded Taxes covered by Section 3.10 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 3.10(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any tax of
any kind whatsoever); and the result of any of the foregoing is to increase
the cost to such Lender, by an amount which such Lender deems to be material, of
making, converting into, continuing or maintaining Eurocurrency Loans or issuing
or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Agent, in accordance herewith, the
Borrower shall be obligated to promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable, provided that, in any such case, the Borrower may
elect to convert the Eurocurrency Loans made by such Lender hereunder to Base
Rate Loans by giving the Agent at least one Business Day's notice of such
election, in which case the Borrower shall promptly pay to such Lender, upon
demand, without duplication, such amounts, if any, as may be required pursuant
to Section 3.11 and this Section 3.9. If any Lender becomes entitled to claim
any additional amounts pursuant to this subsection, it shall provide prompt
notice thereof to the Borrower, through the Agent, certifying (x) that one of
the events described in this Section 3.9 has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Agent, to the Borrower
shall be conclusive and binding on the parties hereto in the absence of manifest
error. This covenant shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
3.10 Taxes.
-----
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Note shall be made
free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by
any court, or governmental body, agency or other official, excluding
taxes measured by or imposed upon the overall net income of any Lender
or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or
taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each
case imposed in lieu of net income taxes, imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which
its principal executive office is located, or any nation within which
such jurisdiction is located or any political subdivision thereof; or
(ii) by reason of any connection between the jurisdiction imposing
such tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received
payment under or enforced, this Credit Agreement or any Note. If any
such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Agent or any Lender hereunder
or under any Note, (A) the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the
Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Credit Agreement and any Note,
provided, however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to increase
any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender
fails to comply with the requirements of paragraph (b) of this
subsection whenever any Non-Excluded Taxes are payable by the
Borrower, and (B) as promptly as possible thereafter the Borrower
shall send to the Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any
Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X) (1) on or before the date of any payment
by the Borrower under this Credit Agreement or Notes
to such Lender, deliver to the Borrower and the Agent
(A) two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, or
successor applicable form, as the case may be,
certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without
deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form
W-9, or successor applicable form, certifying that it
is entitled to an exemption from United States backup
withholding tax;
(2) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before
the date that any such form or certification expires
or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(3) obtain such extensions of time for filing and
complete such forms or certifications as
may reasonably be requested by the Borrower or the
Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to the Borrower (for the benefit of the Borrower and the
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (ii) furnish to the Borrower on or before
the date of any payment by the Borrower, with a copy to the Agent two
accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form certifying to such
Lender's legal entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the provisions of Section
881(c) of the Internal Revenue Code with respect to payments to be made
under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Agent two further copies of such form on or before the
date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Agent for filing and completing such forms), and (iii)
to the extent legally entitled to do so, upon reasonable request by the
Borrower, provide to the Borrower (for the benefit of the Borrower and
the Agent) such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption from
withholding with respect to payments under this Credit Agreement and
any Note;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender or a participant
of a Lender pursuant to Section 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
participant of a Lender the obligations of such participant of a Lender pursuant
to this subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.11 Indemnity.
---------
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) the Borrower's failure to make a borrowing of, conversion
into or continuation of Eurocurrency Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) the Borrower's failure to make a prepayment of a Eurocurrency Loan after the
Borrower has given a notice thereof in accordance with the provisions of this
Credit Agreement or (c) the making of a prepayment of Eurocurrency Loans on a
day which is not the last day of an Interest Period with respect thereto. With
respect to Eurocurrency Loans, such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurocurrency Loans provided for herein over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurocurrency market. The covenants of
the Borrower set forth in this Section 3.11 shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.12 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans. Each Extension of Credit in respect of Revolving Loans,
Foreign Currency Loans and LOC Obligations and payments of principal,
interest and fees (including Unused Fee and Letter of Credit Fee) on or
in respect thereof and each reduction in Commitments, relating thereto,
and each conversion or continuation of such Loans and Revolving
Obligations, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Revolving Loans or Foreign Currency Loans and Participation Interests.
(b) Advances. Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its ratable share of such borrowing
available to the Agent, the Agent may assume that such Lender is making
such amount available to the Agent, and the Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount.
If such amount is not made available to the Agent by such Lender within
the time period specified therefor hereunder, such Lender shall pay to
the Agent, on demand, such amount with interest thereon (or, in the
case of a Foreign Currency Loan interest on the daily Dollar Equivalent
thereof) at a rate equal to the Federal Funds Rate for the period until
such Lender makes such amount immediately available to the Agent. A
certificate of the Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence
of manifest error.
3.13 Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, any LOC Obligation or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, so that all Lenders share such payment in accordance with their
respective Revolving Commitment Percentages as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligation or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.13 to share in the benefits of any recovery on such secured claim.
3.14 Payments, Computations, Etc.
(a) Each payment on account of an amount due from the Borrower hereunder or
under any other Credit Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Lenders entitled to receive
such payment as provided herein in the currency in which such amount is
denominated and in such funds as are customary at the place and time of payment
for the settlement of international payments in such currency. Without limiting
the terms of the preceding sentence, accrued interest on any Loans denominated
in a Foreign Currency shall be payable in the same Foreign Currency as such
Loan. Upon request, the Agent will give the Borrower a statement showing the
computation used in calculating such amount, which statement shall be conclusive
in the absence of manifest error. The obligation of the Borrower to make each
payment on account of such amount in the currency in which such amount is
denominated shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency, except to the extent such tender or recovery shall result in the
actual receipt by the Agent of the full amount in the appropriate currency
payable hereunder. The Borrower agrees that its obligation to make payment in a
Foreign Currency shall be enforceable as an additional or alternative claim for
recovery in such Foreign Currency in an amount (if any) by which the amount
actually received shall fall short of the full amount of such Foreign Currency
payable hereunder, and shall not be affected by judgment being obtained for such
amount.
(b) Except as otherwise specifically provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Credit Agreement and the other Credit Documents shall be made to the Agent at
the office of the Agent specified in Section 11.1 in Dollars or the applicable
Foreign Currency and in immediately available funds, without setoff, deduction,
counterclaim or withholding of any kind, not later than 2:00 P.M. (Chicago,
Illinois time) on the date when due. Payments received after such time shall be
deemed to have been received on the next succeeding Business Day. The Agent may
(but shall not be obligated to) debit the amount of any such payment which is
not made by such time to any ordinary deposit account of the Borrower maintained
with the Agent (with notice to the Borrower). The Borrower shall, at the time it
makes any payment under this Credit Agreement, specify to the Agent the Loans,
LOC Obligations, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
so to specify, or if such application would be inconsistent with the terms
hereof, the Agent shall distribute such payment to the Lenders in such manner as
the Agent may determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Section 3.12(a)). The Agent will
distribute such payments to such Lenders, if such payment is received prior to
2:00 P.M. (Chicago, Illinois time) on a Business Day, in like funds as received
prior to the end of such Business Day and otherwise the Agent will distribute
such payment to such Lenders on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurocurrency Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day. Except as expressly provided
otherwise herein, all computations of interest and fees shall be made on the
basis of actual number of days elapsed over a year of 360 days, provided that
-------- interest on Base Rate Loans which (unless the Base Rate is determined
by reference to the Federal Funds Rate) shall be calculated based on a year of
365 or 366 days, as appropriate. Interest shall accrue from and include the date
of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all
amounts collected or received by the Agent or any Lender on account of
the Revolving Obligations or any other amounts outstanding under any of
the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees
actually incurred) of the Agent in connection with enforcing
the rights of the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees
actually incurred) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise
with respect to the Revolving Obligations owing to such
Lender;
FOURTH, to the payment of all accrued interest and
fees on or in respect of the Revolving Obligations;
FIFTH, to the payment of the outstanding principal
amount of the Revolving Obligations (including the payment or
cash collateralization of the outstanding LOC Obligations);
SIXTH, to all other Revolving Obligations and other
obligations which shall have become due and payable under the
Credit Documents or otherwise and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to
whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category, (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Revolving
Obligations held by such Lender bears to the aggregate then outstanding
Revolving Obligations) of amounts available to be applied pursuant to clauses
"THIRD", "FOURTH", "FIFTH" and "SIXTH" above and (iii) to the extent that any
amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender for any drawings under such Letters
of Credit and (B) then, following the expiration or earlier cancellation of all
Letters of Credit, to all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this Section 3.14(c).
SECTION 4
GUARANTY
4.1 The Guarantee.
-------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, to each Affiliate of a Lender that enters into a Hedging Agreement and
to the Agent as hereinafter provided the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including the Bankruptcy
Code).
4.2 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.1 hereof are joint
and several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or
Hedging Agreements shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under any of the Credit Documents, any Hedging Agreement or
any other agreement or instrument referred to in the Credit
Documents or Hedging Agreements shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any Lender or Lenders as
security for any of the Guaranteed Obligations shall fail to be perfected;
or
(v) any of the Guaranteed Obligations shall be determined to
be void or voidable (including for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of
any Person (including any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
4.3 Reinstatement.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including reasonable fees and expenses of counsel) incurred by the Agent or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
4.4 Remedies.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed Obligations
being deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of said Section 4.1.
4.5 Rights of Contribution.
----------------------
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.5), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.5 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guarantied
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.5, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of the date hereof
(if any Guarantor becomes a party hereto subsequent to the date hereof, then for
the purposes of this Section 4.5 such subsequent Guarantor shall be deemed to
have been a Guarantor as of the date hereof and the information pertaining to,
and only pertaining to, such Guarantor as of the date such Guarantor became a
Guarantor shall be deemed true as of the date hereof).
4.6 Continuing Guarantee.
--------------------
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising. Each Guarantor further
agrees that such Guarantor shall have no right of recourse to security for the
Guaranteed Obligations, except through the exercise of the rights of subrogation
pursuant to Section 4.2 and through the exercise of rights of contribution
pursuant to Section 4.5.
SECTION 5
CONDITIONS
5.1 Conditions to Closing.
---------------------
This Credit Agreement shall become effective, and all loans outstanding
under the Existing Agreement shall be deemed to be loans hereunder (as more
fully set forth in Section 11.16) and all letters of credit outstanding under
the Existing Agreement shall be deemed to be Letters of Credit hereunder upon
satisfaction of the following conditions precedent (in form and substance
acceptable to the Agent) (the date on which all such conditions precedent have
been satisfied or waived in writing by the Lenders, the "Effective Date"):
(a) Execution of Credit Agreement and Credit Documents. Receipt by the
Agent of (i) multiple counterparts of this Credit Agreement, (ii) a
Revolving Note for each Lender, (iii) the Swingline Note for the
Swingline Lender, (iv) multiple counterparts of each of the Pledge
Agreements and UCC financing statements relating thereto, if any,
executed by a duly authorized officer of each party thereto and in each
case conforming to the requirements of this Credit Agreement.
(b) Financial Information. Receipt by the Agent of the consolidated
financial statements of the Borrower and its Subsidiaries, including
balance sheets and income and cash flow statements for the fiscal years
ending 1998 and 1999, in each case audited by nationally recognized
independent public accountants and containing an unqualified opinion of
such firm that such statements present fairly the consolidated
financial position of the Borrower and its Subsidiaries and are
prepared in conformity with GAAP and such other information relating to
the Borrower and its Subsidiaries as the Agent may reasonably require
in connection with the structuring and syndication of credit facilities
of the type described herein.
(c) Absence of Legal Proceedings. There shall not exist any pending or
threatened action, suit, investigation or proceeding which if adversely
determined against the Borrower or any of its Subsidiaries would have
or would reasonably be expected to have a Material Adverse Effect.
(d) Legal Opinions. Receipt of opinions of counsel for the Credit Parties
relating to the Credit -------------- Documents and the transactions
contemplated herein, in form and substance satisfactory to the Agent and
the Lenders.
(e) Corporate Documents. Receipt of the following for each of
the Credit Parties: --------------------
(1) Articles of Incorporation. Copies of the articles of
incorporation or charter documents certified to be true and
complete as of a recent date by the appropriate governmental
authority of the state of its incorporation.
(2) Resolutions. Copies of resolutions of the Board of
Directors approving and adopting the respective
Credit Documents, the transactions contemplated
therein and authorizing execution and delivery
thereof, certified by a secretary or assistant
secretary as of the date hereof to be true and
correct and in force and effect as of such date.
(3) Bylaws. Copies of the bylaws certified by a secretary or assistant
secretary as of ------ the date hereof to be true and correct and in force
and effect as of such date.
(4) Good Standing. Copies, where applicable, of
certificates of good standing, existence or its
equivalent certified as of a recent date by the
appropriate governmental authorities of the state of
incorporation and each other state in which the
failure to so qualify and be in good standing would
have a material adverse effect on the business or
operations in such state.
(5) Incumbency. An incumbency certificate of each Credit Party certified by a
secretary ---------- or assistant secretary to be true and correct as of
the date hereof.
(f)Personal Property Collateral. Receipt of the following in form and substance
satisfactory to the ---------------------------- Agent:
(1) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Agent's sole
discretion, to perfect the Collateral Agent's security
interest;
(2) all original stock certificates, if any, evidencing the
capital stock pledged to the Collateral Agent pursuant to the
Pledge Agreements, together with original undated stock powers
executed in blank (unless any such stock powers are deemed
unnecessary by the Collateral Agent in its reasonable
discretion under the law of the jurisdiction of organization
of any Foreign Subsidiary); and
(3) all duly executed consents as are necessary, in the
Agent's sole discretion, to perfect the Collateral Agent's
security interest in the Collateral.
(g) Amended Agreements. The Agent shall have received counterparts of
(i) the Intercreditor Agreement -------------- signed by all of the Noteholders
and (ii) an amendment to the Pledge Agreement signed by the Borrower.
(h) Material Adverse Effect. There shall not have occurred a change
since February 29, 2000 that has had or could reasonably be expected to
have a Material Adverse Effect (including matters related to
litigation, tax, accounting, labor, insurance and pension liabilities).
(i) Officer's Certificate. The Agent shall have received a certificate
or certificates executed by the chief financial officer of the Borrower
as of the date hereof stating that (A) the Borrower and each of the
Borrower's Subsidiaries are in compliance with all existing financial
obligations, (B) all governmental, shareholder and third party consents
and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (C) no action,
suit, investigation or proceeding is pending or threatened in any court
or before any arbitrator or governmental instrumentality that purports
to effect the Borrower, any of the Borrower's Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding might be reasonably expected to have a
Material Adverse Effect and (D) immediately after giving effect to this
Credit Agreement, the other Credit Documents and all the transactions
contemplated herein or therein to occur on such date, (1) the Borrower
and each of the Borrower's Material Subsidiaries is Solvent, (2) no
Default or Event of Default exists, (3) all representations and
warranties contained herein and in the other Credit Documents are true
and correct in all material respects, and (4) the Credit Parties are in
compliance with each of the financial covenants set forth in Section
7.9.
(j) Fees. Receipt of all fees and expenses owed to the Lenders and the
Agent, including any fees set ------ forth in the Agent's Fee Letter.
(k) First Priority Lien. Receipt by the Agent of evidence satisfactory
in form and substance to the Agent, that the Collateral Agent holds a
perfected, first priority Lien (subject to no other Liens) in the
Collateral.
(l) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement
shall be reasonably satisfactory in form and substance to the Agent and
the Required Lenders.
5.1 Conditions to All Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit is
subject to the satisfaction of the following conditions precedent on the date of
making such Extension of Credit:
(a) Notice. The Borrower shall have delivered (i) in the case of any
new Revolving Loan or Foreign Currency Loan, a Notice of Borrowing,
duly executed and completed in accordance with the terms hereof and
(ii) in the case of any continuation or conversion of a Loan, a duly
executed and completed Notice of Continuation/Conversion by the time
specified in Section 3.2.
(b) Representations and Warranties. The representations and warranties made
by the Borrower herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects
on and as of the date of such Extension of Credit as if made on and as
of such date (except for those which expressly relate to an earlier
date).
(c) No Default or Event of Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to
the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
Each request for Extension of Credit (including continuations and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including continuations and conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (b) and (c) of this
subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make Extensions
of Credit herein provided for, each Credit Party hereby represents and warrants
to the Agent and to each Lender that:
6.1 Financial Condition.
-------------------
The financial statements delivered to the Agent pursuant to Section
5.1(b) have been prepared in accordance with GAAP, are complete and correct in
all material respects and present fairly the financial condition and results
from operations of the entities and for the periods specified.
6.2 No Changes or Restricted Payments.
---------------------------------
Since the date of the audited financial statements referenced in
Section 6.1, (a) there has been no circumstance, development or event relating
to or affecting the Borrower or any of its Subsidiaries which has had or would
be reasonably expected to have a Material Adverse Effect, and (b) except as
permitted herein, no Restricted Payments have been made or declared or are
contemplated by the Borrower or any of its Subsidiaries.
6.3 Organization; Existence; Compliance with Law.
--------------------------------------------
The Borrower and each of its Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or other necessary power
and authority, and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law, except to
the extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
---------------------------------------------
Each Credit Party has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the Credit Documents
to which it is a party. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Documents by any Credit Party (other than
those which have been obtained) or with the validity or enforceability of any
Credit Document against such Credit Party (except such filings as are necessary
in connection with the perfection of the Liens created by such Credit
Documents). Each Credit Document to which it is a party constitutes a legal,
valid and binding obligation of each Credit Party enforceable against such
Credit Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 No Legal Bar.
------------
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any Contractual Obligation of any Credit Party or any
of its Subsidiaries. None of the Credit Parties nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which would reasonably be expected to have a Material Adverse Effect.
6.6 No Material Litigation.
----------------------
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against the Borrower or any of its Subsidiaries
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby,
or (b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect, except as set forth on Schedule 6.6.
6.7 No Default.
----------
No Default or Event of Default has occurred and is continuing.
6.8 Ownership of Property; Liens.
----------------------------
The Borrower and each of its Subsidiaries has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
material real property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is subject to any Lien,
except for Permitted Liens.
6.9 Intellectual Property.
---------------------
The Borrower and each of its Subsidiaries owns, or has the legal right
to use, all United States trademarks, tradenames, copyrights, technology,
know-how and processes, if any, necessary for each of them to conduct its
business as currently conducted (the "Intellectual Property") except for those
the failure to own or have such legal right to use would not be reasonably
expected to have a Material Adverse Effect. No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Credit Party know of any such claim, and the use of such
Intellectual Property by the Borrower or any of its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that in the aggregate, would not be reasonably expected to have a Material
Adverse Effect.
6.10 No Burdensome Restrictions.
--------------------------
No Requirement of Law or Contractual Obligation of the Borrower or any
of its Subsidiaries would be reasonably expected to have a Material Adverse
Effect.
6.11 Taxes.
-----
The Borrower and each of its Subsidiaries (a) has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns required to be filed and (b) has paid (i) all taxes shown to be due and
payable on said returns, (ii) all taxes shown to be due and payable on any
assessments of which it has received notice made against it or any of its
property and (c) all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than any (x) taxes, fees or
other charges with respect to which the failure to pay, in the aggregate, would
not have a Material Adverse Effect or (y) taxes, fees or other charges the
amount or validity of which are currently being contested and with respect to
which reserves in conformity with GAAP have been provided on the books of such
Person), and no tax Lien has been filed, and, to the best knowledge of the
Credit Parties, no claim is being asserted, with respect to any such tax, fee or
other charge.
6.12 ERISA.
-----
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred,
and, to the best knowledge of the Credit Parties, no event or condition
has occurred or exists as a result of which any ERISA Event could
reasonably be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC
or a Plan has arisen or is reasonably likely to arise on account of any
Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under
each Single Employer Plan, as of the last annual valuation date prior
to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither the Borrower, nor any of its Subsidiaries nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit
Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither the Borrower, nor any of its Subsidiaries nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA
if the Borrower, any of its Subsidiaries or any ERISA Affiliate were to
withdraw completely from all Multiemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither the Borrower, nor
any of its Subsidiaries nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning
of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject the
Borrower, any of its Subsidiaries or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which the Borrower, any of its Subsidiaries or any ERISA
Affiliate has agreed or is required to indemnify any person against any
such liability.
(e) Neither the Borrower, nor any of its Subsidiaries, nor any ERISA
Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan which is
a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects of such sections.
6.13 Governmental Regulations, Etc.
-----------------------------
(a) No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Agent, the Borrower will furnish to the Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No
indebtedness being reduced or retired out of the proceeds of the Loans
was or will be incurred for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U or any "margin
security" within the meaning of Regulation T. None of the transactions
contemplated by this Credit Agreement (including the direct or indirect
use of the proceeds of the Loans) will violate or result in a violation
of the Securities Act of 1933, or the Securities Exchange Act of 1934,
or regulations issued pursuant thereto, or Regulation T, U or X.
(b) Neither the Borrower, nor any of its Subsidiaries, is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940. In addition,
neither the Borrower, nor any of its Subsidiaries, is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, or "controlled" by such a company, or
(ii) a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935.
(c) The Borrower and each of its Subsidiaries has obtained all
material licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its respective Property
and to the conduct of its business.
(d) Neither the Borrower, nor any of its Subsidiaries is in violation of
any applicable statute, regulation or ordinance of the United States of
America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including environmental laws
and regulations), which violation could reasonably be expected to have
a Material Adverse Effect.
(e) The Borrower and each of its Subsidiaries is current with all material
reports and documents, if any, required to be filed with any state or
federal securities commission or similar agency and is in full
compliance in all material respects with all applicable rules and
regulations of such commissions.
6.14 Purpose of Extensions of Credit.
-------------------------------
The Loans will be used solely (a) to make Permitted Acquisitions, (b)
to make Capital Expenditures permitted hereunder, (c) to refinance existing
Indebtedness and (d) to provide working capital and for general corporate
purposes. The Letters of Credit shall be used only for the purposes set forth in
Section 2.2(a).
6.15 Environmental Matters.
---------------------
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") and all
operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law
with respect to the Properties or the businesses operated by the
Borrower or any of its Subsidiaries (the "Businesses"), and there are
no conditions relating to the Businesses or Properties that could give
rise to liability under any applicable Environmental Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in
amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the
Businesses, nor does the Borrower or any of its Subsidiaries have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or
disposed of at, on or under any of the Properties or any other
location, in each case by or on behalf of the Borrower or any of its
Subsidiaries in violation of, or in a manner that would be reasonably
likely to give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Credit Parties, threatened,
under any Environmental Law to which the Borrower or any of its
Subsidiaries is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Borrower or
any of its Subsidiaries, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations (including disposal) of the Borrower or any
of its Subsidiaries in connection with the Properties or otherwise in
connection with the Businesses, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws.
6.16 First Priority Lien.
-------------------
The Collateral Agent on behalf of the Lenders, the Noteholders and the
Permitted Holders, holds a first priority Lien, subject to no other Liens, in
the Collateral.
6.17 Subsidiaries.
------------
Set forth on Schedule 6.17 is a complete and accurate list of (a) all
Subsidiaries of each Credit Party and (b) all Material Subsidiaries of each
Credit Party. Information on Schedule 6.17 includes (c) for each Subsidiary, the
jurisdiction of incorporation and the percentage of outstanding shares owned
(directly or indirectly) by such Credit Party, and (d) for each Material
Subsidiary, the number of shares of each class of capital stock outstanding, the
number and percentage of outstanding shares of each class owned (directly or
indirectly) by such Credit Party and the number of all outstanding options,
warrants, rights of conversion or purchase and all other similar rights with
respect thereto. The outstanding capital stock of all Subsidiaries of each
Credit Party is validly issued, fully paid and non-assessable and is owned by
each such Credit Party, directly or indirectly, free and clear of all Liens
(other than those arising under or contemplated in connection with the Credit
Documents). Schedule 6.17 may be updated from time to time by the Borrower by
giving written notice thereof to the Agent.
6.18 Chief Executive Office.
----------------------
Set forth on Schedule 6.18 is the chief executive office and principal place of
business of each Credit ------------- Party.
6.19 Pari Passu Indebtedness.
-----------------------
The Revolving Obligations and all other Indebtedness under the Credit
Agreement are pari passu with the Permitted Senior Indebtedness and the
Indebtedness arising under the Note Purchase Agreement.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that on the date hereof, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Revolving Obligations remain outstanding and all amounts owing
hereunder or in connection herewith have been paid in full, the Borrower and
each of its Subsidiaries shall:
7.1 Financial Statements.
--------------------
Furnish, or cause to be furnished, to each of the Lenders:
(a) Audited Financial Statements. As soon as available, but in any
event within 90 days after the end of each fiscal year, an audited
consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the fiscal year and the related consolidated statements of
income, retained earnings, shareholders' equity and cash flows for the
year, audited by independent certified public accountants of nationally
recognized standing reasonably acceptable to the Required Lenders,
setting forth in each case in comparative form the figures for the
previous year, reported without a "going concern" or like qualification
or exception, or qualification indicating that the scope of the audit
was inadequate to permit such independent certified public accountants
to certify such financial statements without such qualification,
together with a schedule setting forth the unaudited consolidating
balance sheet and the related consolidating statements of income for
the Borrower and its Subsidiaries (and, if available, a schedule
setting forth the related consolidating retained earnings, shareholders
equity and cash flows for the Borrower and its Subsidiaries), in a
format and with detail sufficient to calculate the applicable financial
covenants.
(b) Company-Prepared Financial Statements. As soon as available, but in any
event ------------------------------------- (1) within 45 days after the
end of each fiscal quarter, a company-prepared consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such quarter and
related company-prepared consolidated statements of income, retained
earnings, shareholders' equity and cash flows for such period and for the
fiscal year to date, together with a schedule setting forth the
company-prepared balance sheet and related consolidating statements of
income for the Borrower and its Subsidiaries (and, if available, a
company-prepared schedule setting forth the related consolidating retained
earnings, shareholders equity and cash flows for the Borrower and its
Subsidiaries) in a format and with detail sufficient to calculate the
applicable financial covenants; and (2) within 45 days after the
commencement of any fiscal year, an annual business plan and budget for the
Borrower and its Subsidiaries, containing, among other things, pro forma
financial statements for such fiscal year,
in each case setting forth in comparative form the consolidated (and
consolidating, if applicable) figures for the corresponding period or periods of
the preceding fiscal year or the portion of the fiscal year ending with such
period, as applicable, in each case subject to normal recurring year-end audit
adjustments.
All such financial statements shall be (x) complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments), (y) prepared in reasonable detail and, in the case
of the annual and quarterly financial statements provided in accordance with
subsections (a) and (b) above, in accordance with GAAP and (z) accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change in the application of accounting principles as provided in
Section 1.3, if applicable.
7.2 Certificates; Other Information.
-------------------------------
Furnish, or cause to be furnished, to the Agent for distribution to the
Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the
delivery of the financial statements referred to in Section 7.1(a)
above, a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default
or Event of Default, except as specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the
financial statements referred to in Sections 7.1(a) and 7.1(b) above, a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (i) the financial
statements fairly present in all material respects the financial
condition of the parties covered by such financial statements, (ii)
during such period the Borrower and its Subsidiaries have observed or
performed in all material respects the covenants and other agreements
hereunder and under the other Credit Documents relating to them, and
satisfied in all material respects the conditions, contained in this
Credit Agreement to be observed, performed or satisfied by them, (iii)
such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (iv) at
the end of each fiscal quarter of the Borrower only, such certificate
shall include the calculations required to indicate compliance with
Section 7.9. A form of Officer's Certificate is attached as Exhibit E.
(c) Accountants' Reports. Promptly upon receipt, a copy of any final
(as distinguished from a preliminary or discussion draft) "management
letter" or other similar report submitted by independent accountants or
financial consultants to the Borrower or any of its Material
Subsidiaries in connection with any annual, interim or special audit.
(d) Public Information. Within 30 days after the same are sent, copies
of all reports (other than those otherwise provided pursuant to Section
7.1) and other financial information which the Borrower or any of its
Subsidiaries sends to its public stockholders, and within 30 days after
the same are filed, copies of all financial statements and
non-confidential reports which the Borrower or any of its Subsidiaries
may make to, or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority.
(e) Other Information. Promptly, such additional financial and other
information as the Agent, at the ----------------- request of any Lender,
may from time to time reasonably request.
7.3 Notices.
-------
Give notice to the Agent (which shall promptly transmit such notice to each
Lender) of: (a) Defaults. Immediately after any Credit Party knows or has
reason to know thereof, the occurrence -------- of any Default or Event of
Default. (b) Contractual Obligations. Promptly, the initiation of any
default or event of default under any ------------------------- Contractual
Obligation of the Borrower or any of its Subsidiaries which would
reasonably be expected to have a Material Adverse Effect.
(c) Legal Proceedings. Promptly, any litigation, or any investigation
or proceeding (including any environmental proceeding) known to the
Borrower or any of its Subsidiaries, or any material development in
respect thereof, affecting the Borrower or any of its Subsidiaries
which, if adversely determined, would reasonably be expected to have a
Material Adverse Effect.
(d) ERISA. Promptly, after any Responsible Officer of any Credit Party
knows or has reason to know of (i) any event or condition, including
any Reportable Event, that constitutes, or might reasonably lead to, an
ERISA Event, (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against any of their ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA), (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Borrower or any of its
Subsidiaries or any ERISA Affiliate are required to contribute to each
Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect or (iv) any
change in the funding status of any Plan that reasonably could be
expected to have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a
statement by the chief financial officer of the Credit Parties briefly
setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed
to be taken by the Credit Parties with respect thereto. Promptly upon
request, the Borrower or any of its Subsidiaries shall furnish the
Agent and the Lenders with such additional information concerning any
Plan as may be reasonably requested, including copies of each annual
report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(e) Other. Promptly, any other development or event which a Responsible
Officer determines could reasonably be expected to have a Material
Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Credit Parties propose to take with respect thereto.
7.4 Payment of Obligations.
----------------------
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with prudent business
practice (subject, where applicable, to specified grace periods) all material
obligations of the Borrower or any of its Subsidiaries of whatever nature
(including all taxes, assessments and governmental charges or levies) and any
additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such obligations, except when the amount or
validity of such obligations and costs is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Borrower or any
of its Subsidiaries, as the case may be.
7.5 Conduct of Business and Maintenance of Existence.
------------------------------------------------
Continue to engage in business of the same general type as now
conducted by it on the date hereof and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all material rights, privileges, licenses and franchises necessary or desirable
in the normal conduct of its business; and comply with all Contractual
Obligations and Requirements of Law applicable to it except to the extent that
failure to comply therewith would not, in the aggregate, have a Material Adverse
Effect.
7.6 Maintenance of Property; Insurance.
----------------------------------
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice (except to any greater extent as may be required by the terms of any of
the other Credit Documents); and furnish to the Agent, upon written request,
full information as to the insurance carried.
7.7 Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
Keep proper books of records and accounts in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Agent or any Lender, as the case may be, the Agent or such Lender to
visit and inspect any of its properties and examine and make abstracts
(including photocopies) from any of its books and records (other than materials
protected by the attorney-client privilege and materials which the Credit
Parties may not disclose without violation of a confidentiality obligation
binding upon them) at any reasonable time, and to discuss the business,
operations, properties and financial and other condition of the Borrower and any
of its Subsidiaries with officers and employees of the Borrower and any of its
Subsidiaries and with their independent certified public accountants. The cost
of the inspection referred to in the preceding sentence shall be for the account
of the Lenders, unless an Event of Default has occurred and is continuing, in
which case the cost of such inspection shall be for the account of the Credit
Parties.
7.8 Environmental Laws.
------------------
(a) Comply with, and take reasonable actions to ensure compliance by
all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and take reasonable
actions to ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws
except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws
except to the extent that the same are being contested in good faith by
appropriate proceedings and the failure to do or the pendency of such
proceedings would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the
Borrower or any of its Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including reasonable attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall
survive repayment of the Loans and all other amounts payable hereunder,
and termination of the Commitments.
7.9 Financial Covenants.
-------------------
(a) Leverage Ratio. Maintain as of the end of each fiscal quarter, a
Leverage Ratio not greater than (i) 3.5 to 1.0 for the fiscal quarter
ending November 30, 2000 and (ii) 3.0 to 1.0 for any other fiscal
quarter.
(b) Fixed Charge Coverage Ratio. Maintain with respect to the Borrower and its
Subsidiaries as of --------------------------- the end of each fiscal
quarter, a Fixed Charge Coverage Ratio not less than 1.5 to 1.0.
(c) Net Worth. At all times not permit Net Worth to be less than
$245,000,000 increased on a cumulative basis (beginning with the fiscal
quarter ending on February 29, 2000) by an amount equal to, (i) as of
the last day of each fiscal quarter, 50% of Net Income for the fiscal
quarter then ended (without deductions for losses) beginning with the
fiscal quarter ended May 31, 2000 plus (ii) 75% of the Net Cash
Proceeds from any Equity Transaction subsequent to the date hereof plus
(iii) 75% of any increase in Net Worth resulting from the issuance of
capital stock of the Borrower or any Subsidiary in connection with a
Permitted Acquisition.
(d) Working Capital. At all times not permit Working Capital to be less than
zero. ---------------
7.10 Use of Proceeds.
---------------
Use Extensions of Credit solely for the purposes provided in Section
6.14.
7.11 Additional Guaranties and Stock Pledges.
---------------------------------------
(a) Domestic Subsidiaries. At any time any Person which is a Domestic
Subsidiary of a Credit Party becomes a Material Subsidiary, promptly
notify the Agent thereof and cause such Domestic Subsidiary to become a
Guarantor hereunder by (i) execution of a Joinder Agreement, (ii)
delivery of supporting resolutions, incumbency certificates,
corporation formation and organizational documentation and opinions of
counsel as the Agent may reasonably request, and (iii) delivery of
stock certificates and a related pledge agreement or pledge joinder
agreement evidencing the pledge of 65% of the Voting Stock of each of
its Majority-Owned Foreign Subsidiaries which are Material Subsidiaries
in favor of the Collateral Agent, for the benefit of the Lenders (and
Affiliates of Lenders as to certain obligations under Hedging
Agreements), the Noteholders and the Permitted Holders, together in
each case with undated stock transfer powers executed in blank and UCC
financing statements requested by the Agent.
(b) Foreign Subsidiaries. At any time any Person which is a
Majority-Owned Foreign Subsidiary of a Credit Party becomes a Material
Subsidiary, promptly notify the Agent thereof and cause (i) delivery of
supporting resolutions, incumbency certificates, corporation formation
and organizational documentation and opinions of counsel as the Agent
may reasonably request, and (ii) delivery of stock certificates (where
required for perfection under local law) and a related pledge agreement
or pledge joinder agreement evidencing the pledge of 65% of the Voting
Stock of such Majority-Owned Foreign Subsidiary owned by a Credit Party
in favor of the Collateral Agent, for the benefit of the Lenders (and
affiliates of Lenders as to certain obligations under Hedging
Agreements), the Noteholders and the Permitted Holders, together in
each case with undated stock transfer powers executed in blank and UCC
financing statements requested by the Agent.
(c) Release of Stock Pledge. (i) If any Person which is a Collateral
Foreign Subsidiary no longer qualifies as a Material Subsidiary, or
(ii) if any Person which is a Collateral Foreign Subsidiary no longer
is directly owned by a Credit Party, then, within 45 days of notice
thereof by the Borrower, the Lenders shall terminate the pledge of the
Voting Stock of such Person and return such Voting Stock to the
Borrower; provided, however, that after giving effect to such release
or return, the Borrower and its Subsidiaries shall be in compliance
with the foregoing provisions of this Section 7.11.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party covenants and agrees that on the date hereof, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Revolving Obligations remain outstanding and all amounts owing
hereunder or in connection herewith have been paid in full, neither the Borrower
nor any of its Subsidiaries shall:
8.1 Indebtedness.
------------
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness set forth in Schedule 8.1, and renewals, refinancings
and extensions thereof on terms and conditions no less favorable to the
Borrower than for such existing Indebtedness;
(c) Capital Lease Obligations and other Indebtedness (including TROLS)
incurred, in each case, to provide all or a portion of the purchase
price or costs of construction of an asset, provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost
of construction of such asset, (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing and (iii) the total
amount of all such Indebtedness shall not exceed an amount equal to or
greater than 5% of the total assets of the Borrower and its
Subsidiaries on a consolidated basis (based on the Borrower's most
recent annual or quarterly financial statements delivered pursuant to
terms of Section 7.1) at any time outstanding;
(d) Indebtedness and obligations owing under interest rate protection
agreements relating to the Revolving Obligations hereunder and under
interest rate, commodities and foreign currency exchange protection
agreements entered into in the ordinary course of business to manage
existing or anticipated risks and not for speculative purposes;
(e) Indebtedness assumed in connection with a Permitted Acquisition (so
long as such Indebtedness (i) has been fully disbursed by the lender
and cannot be reborrowed following repayment and (ii) was not incurred
in anticipation of or in connection with the respective acquisition);
(f) other unsecured Indebtedness of the Borrower and its Subsidiaries
in an amount not to exceed $25,000,000 in the aggregate at any one
time; provided that such unsecured Indebtedness of the Foreign
Subsidiaries of the Borrower shall not exceed $15,000,000 in the
aggregate at any one time;
(g) (i) Indebtedness of the Borrower arising under the Note Purchase
Agreement and the notes related thereto (and renewals, refinancings and
extensions thereof on terms and conditions no less favorable to the
Borrower than such existing Indebtedness evidenced by the Note Purchase
Agreement) in an aggregate principal amount not to exceed $75,000,000
at any one time and (ii) all Guaranty Obligations of the Guarantors
with respect to such Indebtedness referenced in subsection (g)(i) above
arising under the Note Purchase Agreement;
(h) (i) Permitted Senior Indebtedness of the Borrower and the notes
related thereto (and renewals, refinancings and extensions thereof on
terms and conditions no less favorable to the Borrower than such
existing Permitted Senior Indebtedness) in an aggregate principal
amount not to exceed $50,000,000 at any one time and (ii) all Guaranty
Obligations of the Guarantors with respect to such Permitted Senior
Indebtedness; provided that any revolving Permitted Senior Indebtedness
may be replaced by term Senior Indebtedness having terms substantially
similar to the terms of the Note Purchase Agreement (except that the
maturity thereof may extend beyond the maturity of the Indebtedness
under the Note Purchase Agreement and the interest rate thereunder may
be based on market rates at the time of the execution and delivery
thereof);
(i) Indebtedness of ▇▇▇▇▇▇▇ ▇▇▇▇▇ under a revolving credit facility
extended by National Bank of Canada in an amount not to exceed
40,000,000 Canadian dollars; provided that such Indebtedness shall not
be Indebtedness or a Guaranty Obligation of the Borrower or any of its
Subsidiaries other than ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(j) intercompany Indebtedness arising out of loans and advances permitted by
Section 8.5.
8.2 Liens.
-----
Contract, create, incur, assume or permit to exist any Lien with
respect to any of their respective property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 Nature of Business.
------------------
Alter the character of their business in any material respect from that
conducted as of the date hereof or engage in any business other than the
business conducted as of the date hereof.
8.4 Consolidation, Merger, Sale of Assets.
-------------------------------------
(a) Dissolve, liquidate or wind up their affairs or enter into any
transaction of merger or consolidation; provided, however, that (i)
the Borrower may merge or consolidate with any Person so long as (A)
the Borrower shall be the continuing or surviving corporation, (B)
such merger or consolidation is not conducted in order to circumvent
compliance with the Credit Documents, (C) (1) no Default or Event of
Default shall exist and (2) no Default or Event of Default shall occur
after giving effect to such merger or consolidation and (D) to the
extent such merger or consolidation is with a Person other than a
Subsidiary of the Borrower, such Person is in the same line of
business as the Borrower and its Subsidiaries, (ii) any Foreign
Subsidiary of the Borrower may be merged or consolidated with or into
any other Foreign Subsidiary of the Borrower; provided that after
giving effect to any such merger or consolidation the Borrower and its
Subsidiaries shall be in compliance with Section 7.11 and (iii) any
Foreign Subsidiary of the Borrower (other than a Material Subsidiary)
may dissolve, liquidate or wind-up its affairs at any time; provided
that after giving effect to any such dissolution, liquidation or
wind-up the Borrower and its Subsidiaries shall be in compliance with
Section 7.11.
(b) Sell, lease, transfer or otherwise dispose of any Property
(including accounts and notes receivable, with or without recourse)
other than (i) the sale of inventory in the ordinary course of business
for fair consideration, (ii) the sale or disposition of machinery and
equipment no longer used or useful in the conduct of such Person's
business, (iii) other sales of assets during any fiscal year having an
aggregate fair market value of less than $5,000,000 and (iv) any
transfer or disposition of Property permitted by Section 8.4(a)(ii) or
Section 8.4(a)(iii).
8.5 Advances, Investments and Loans.
-------------------------------
Lend money or extend credit or make advances to any Person, or purchase
or acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, or otherwise make an Investment in any Person,
except for Permitted Investments.
8.6 Restricted Payments.
-------------------
Directly or indirectly, (a) declare or make any Restricted Payment or
(b) make any prepayment, redemption, defeasance or acquisition for value of
(including by way of depositing money or securities with the trustee with
respect thereto before due for the purpose of paying when due), or refund,
refinance or exchange of any Indebtedness (including any Permitted Senior
Indebtedness and any Indebtedness arising under the Note Purchase Agreement);
provided that
(I) the Borrower or any of its Subsidiaries may (A) declare or make any
Restricted Payment so long as no Default or Event of Default exists and
is continuing or would occur after giving effect thereto, (B) prepay
any Indebtedness (including any Senior Permitted Indebtedness and
Indebtedness arising under the Note Purchase Agreement) in such amounts
as the Borrower or any Subsidiary may choose in its sole discretion so
long as no Default or Event of Default exists and is continuing or
would occur after giving effect thereto, provided, further that the
aggregate amount expended by the Borrower and its Subsidiaries pursuant
to this subclause (I) during any fiscal year shall not exceed 50% of
Net Income for the fiscal year immediately preceding such fiscal year;
(II) the Borrower may prepay the Indebtedness arising under the Note
Purchase Agreement so long as (A) immediately after giving effect to
such prepayment of Indebtedness, the Revolving Obligations (other than
the LOC Obligations) outstanding shall not exceed zero, (B) the
Revolving Obligations (other than the LOC Obligations) outstanding
shall not exceed zero for at least one Business Day following any such
prepayment of Indebtedness and (C) no Default or Event of Default
exists and is continuing or would occur after giving effect to any such
prepayment;
(III) the Borrower may apply the proceeds received pursuant to an
incurrence of Indebtedness permitted by Section 8.1(f) hereof to prepay
the Indebtedness arising under the Note Purchase Agreement so long as
no Default or Event of Default exists and is continuing or would occur
after giving effect to any such prepayment;
(IV) the Borrower may apply the proceeds received pursuant to an
incurrence of Indebtedness permitted by Section 8.1(g) or 8.1(h) hereof
to refinance the Indebtedness arising under the Note Purchase Agreement
or Permitted Senior Indebtedness, respectively, so long as no Default
or Event of Default exists and is continuing or would occur after
giving effect to any such refinancing; and
(V) the foregoing clause (b) shall in no event be construed to prohibit
or otherwise restrict any payment of the Indebtedness arising under the
Note Purchase Agreement or Permitted Senior Indebtedness upon the
scheduled maturity or acceleration of the Indebtedness thereunder or in
connection with any application of proceeds of Collateral pursuant to
the Intercreditor Agreement.
8.7 Transactions with Affiliates.
----------------------------
Except for limited non-arm's length transactions with Affiliates that
are negotiated in good faith and do not provide for payments, the incurrence of
obligations or the transfer of assets by the Borrower or any of its Subsidiaries
in an amount exceeding $5,000,000 in the aggregate during the term of this
Credit Agreement, enter into or permit to exist any transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than (i) customary
fees and expenses paid to directors and (ii) where such transactions are on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm's-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.8 Fiscal Year.
-----------
Change its fiscal year.
8.9 Limitation on Restrictions.
--------------------------
Create or permit to exist any restriction of any kind on the ability of
any Subsidiary to (i) pay dividends or make any other distributions to any
Credit Party, (ii) pay Indebtedness owed to any Credit Party, (iii) make loans
or advances to any Credit Party or (iv) transfer any of its properties or assets
to any Credit Party except for (A) with respect to clause (iv) above, any
restriction with respect to any asset subject to a purchase money security
interest securing Indebtedness permitted by Section 8.1(c) and (B) (in respect
of any of the matters referred to in clauses (i) through (iv) above) such
restrictions existing under or by reason of (I) this Credit Agreement and the
other Credit Documents or (II) the Note Purchase Agreement as in effect as of
the date hereof, or (III) documents relating to Permitted Senior Indebtedness.
8.10 Sale Leasebacks.
---------------
Except for any Capital Lease permitted by Section 8.1(c), directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (i) which such Person has sold or transferred or is to sell or
transfer to any other Person other than the Borrower or (ii) which such Person
intends to use for substantially the same purpose as any other Property which
has been sold or is to be sold or transferred by such Person to any other Person
in connection with such lease.
8.11 No Further Negative Pledges.
---------------------------
Except (a) pursuant to this Credit Agreement and the other Credit
Documents, (b) pursuant to Section 10.5 of the Note Purchase Agreement as in
effect as of the date hereof, (c) pursuant to documents relating to Permitted
Senior Indebtedness and (d) with respect to prohibitions against other
encumbrances on specific Property encumbered to secure payment of particular
Indebtedness (which Indebtedness relates solely to such specific Property, and
improvements and accretions thereto, and is otherwise permitted hereby), enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation.
8.12 Capital Expenditures.
--------------------
Make or incur Capital Expenditures in any fiscal year of more than
$35,000,000, provided that the excess of such amount over actual Capital
Expenditures for any fiscal year (without taking into consideration any prior
carryover amounts) may be carried over to the immediately subsequent fiscal
year.
8.13 Infringement of Property Rights.
-------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, violate
any licenses, patents, patent applications, copyrights, trademarks, tradenames
or any other property rights of any Person.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Borrower shall
(1) default in the payment when due of any principal of any of the Loans or of
any reimbursement obligations arising from drawings under Letters of
Credit, or
(2) default, and such defaults shall continue for three or
more Business Days, in the payment when due of any interest on
the Loans or on any reimbursement obligations arising from
drawings under Letters of Credit, or of any Fees or other
amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith;
(b) Representations. Any representation, warranty or statement of the
Borrower or any Subsidiary made or deemed to be made herein, in any of
the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was
deemed to have been made;
(c) Covenants. The Borrower shall
---------
(1) default in the due performance or observance of any term,
covenant or agreement contained in Section 7.2, 7.3(a), 7.9,
7.10 or 8.1 through 8.13, inclusive, or
(2) default in the due performance or observance of any term,
covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1) contained
in this Credit Agreement and such default shall continue
unremedied for a period of at least 30 days after the earlier
of a Responsible Officer of the Borrower becoming aware of
such default or notice thereof by the Agent;
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any
of the other Credit Documents (subject to applicable grace or cure
periods, if any), (ii) any Credit Document shall fail to be in full
force and effect or to give the Agent and/or the Lenders any material
part of the Liens, rights, powers and privileges purported to be
created thereby, or (iii) any Credit Party or any other Person acting
by, through or on behalf of any Credit Party shall, directly or
indirectly, contest in any manner the effectiveness, validity, binding
nature or enforceability of any Credit Document, or any Lien granted
thereunder;
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to the
Borrower or any of its -----------------
Subsidiaries;
(f) Defaults under Other Agreements.
---------------------------------
(1) The Borrower or any of its Subsidiaries shall default in
the performance or observance (beyond the applicable grace
period with respect thereto, if any) of any material
obligation or condition of any contract or lease material to
the Borrower and its Subsidiaries, taken as a whole; or
(2) With respect to Indebtedness (other than Indebtedness
outstanding under this Credit Agreement) of the Borrower or
any of its Subsidiaries in an aggregate amount in excess of
$250,000, (A) (1) the Borrower or any of its Subsidiaries
shall default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such
Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance of any other
obligation relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or exist,
the effect of which default or other event or condition is to
cause, or permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holders) to cause
(after the giving of notice or lapse of time if required), any
such Indebtedness to become due prior to its stated maturity;
or (B) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity
thereof;
(g) Judgments. One or more judgments or decrees shall be entered against
one or more of the Borrower or any of its Subsidiaries involving a
liability of $7,000,000 or more in the aggregate (to the extent not (i)
paid or (ii) fully covered by insurance provided by a carrier who has
acknowledged coverage and has the ability to perform) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof;
(h) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be --------------- expected to have a Material
Adverse Effect: (1) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, shall exist with respect to any Plan, or any lien shall arise on
the assets of the Borrower or any of its Subsidiaries or any ERISA
Affiliate in favor of the PBGC or a Plan; (2) an ERISA Event shall occur
with respect to a Single Employer Plan, which is, in the reasonable opinion
of the Agent, likely to result in the termination of such Plan for purposes
of Title IV of ERISA; (3) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the reasonable
opinion of the Agent, likely to result in (i) the termination of such Plan
for purposes of Title IV of ERISA, or (ii) the Borrower or any of its
Subsidiaries or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the meaning of Section
4241 of ERISA), or insolvency of (within the meaning of Section 4245 of
ERISA) such Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject the Borrower or any of its
Subsidiaries or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which the Borrower or any of its
Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability; (i) Note Purchase Agreement. There
shall occur a default or an Event of Default (as defined in the Note
-------------------------------- Purchase Agreement) under the Note
Purchase Agreement; (j) Synthetic Lease Documents. There shall occur an
Event of Default (as defined in the Participation
---------------------------------- Agreement) under the Participation
Agreement; (k) Permitted Senior Indebtedness. There shall occur a default
under any agreement governing or evidencing
-------------------------------------- Permitted Senior Indebtedness; or
(l) Ownership. There shall occur a Change of Control.
------------------
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
so long as an Event of Default is continuing, the Agent shall, upon the request
and direction of the Required Lenders, by written notice to the Borrower take
any of the following actions:
(1) Termination of Commitments. Declare the Commitments
terminated whereupon the
--------------------------
Commitments shall be immediately terminated.
(2) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any
reimbursement obligations arising from drawings under
Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the
Borrower to the Agent and/or any of the Lenders
hereunder to be due whereupon the same shall be
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
(3) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or
upon the occurrence of an Event of Default under
Section 9.1(e), it will immediately pay) to the Agent
additional cash, to be held by the Agent, for the
benefit of the Lenders, in a cash collateral account
as additional security for the LOC Obligations in
respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to
the maximum aggregate amount which may be drawn under
all Letters of Credit then outstanding.
(4) Enforcement of Rights. Enforce any and all rights
and interests created and existing
---------------------
under the Credit Documents and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without
presentment, demand, protest or the giving of any notice or other action by the
Agent or the Lenders, all of which are hereby waived by the Borrower.
SECTION 10
AGENCY PROVISIONS
1 Appointment.
------------
(a) Each Lender hereby designates and appoints Bank of America as agent
(in such capacity, the "Agent") of such Lender to act as specified
herein and the other Credit Documents, and each such Lender hereby
authorizes the Agent as the Agent for such Lender, to take such action
on its behalf under the provisions of this Credit Agreement and the
other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms hereof and of the other
Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
elsewhere herein and in the other Credit Documents, the Agent shall not
have any duties or responsibilities, except those expressly set forth
herein and therein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Credit Agreement or any of the
other Credit Documents, or shall otherwise exist against the Agent. The
provisions of this Section are solely for the benefit of the Agent and
the Lenders and none of the Credit Parties shall have any rights as a
third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit
Documents, the Agent shall act solely as Agent of the Lenders and does
not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower or any of its
Affiliates.
(b) Each Lender hereby consents to and approves the terms of the
Intercreditor Agreement, a copy of which is attached hereto as Exhibit
G. By execution hereof, the Lenders acknowledge the terms of the
Intercreditor Agreement and agree to be bound by the terms thereof and
further authorize and direct the Agent to enter into the Intercreditor
Agreement on behalf of all the Lenders.
10.2 Delegation of Duties.
-----------------------------
The Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions.
----------------------
The Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by the Agent under or in connection herewith or in
connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Agent shall not
be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by the Borrower in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Borrower
to the Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or the use of the Letters of Credit or of the existence or possible
existence of any Default or Event of Default or to inspect the properties, books
or records of the Borrower or its Affiliates.
10.4 Reliance on Communications.
--------------------------
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order 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
the Borrower, independent accountants and other experts selected by the Agent
with reasonable care). The Agent may deem and treat the Lenders as the owner of
their respective interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the Agent
in accordance with Section 11.3(b) hereof. The Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement or under any
of the other Credit Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, hereunder or under any of the other Credit Documents
in accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 11.6, all the Lenders) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders (including their successors and assigns).
10.5 Notice of Default.
--------------------------
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or the Borrower referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
---------------------------------------
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has not
made any representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the affairs of the
Borrower or any of its Affiliates, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower or its Affiliates and made its own decision to
make its Loans hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and to
make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower and its Affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or its respective
Affiliates which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
---------------
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Commitments (or if
the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including at any time following
the final payment of all of the obligations of the Borrower hereunder and under
the other Credit Documents) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent. If any indemnity furnished
to the Agent for any purpose shall, in the opinion of the Agent, be insufficient
or become impaired, the Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
10.8 Agent in its Individual Capacity.
--------------------------------
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
or their respective Affiliates as though the Agent were not the Agent hereunder.
With respect to the Loans made by and all obligations of the Borrower hereunder
and under the other Credit Documents, the Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall include
the Agent in its individual capacity.
10.9 Successor Agent.
---------------
The Agent may, at any time, resign upon twenty days' written notice to
the Borrower and the Lenders. Upon any such resignation, the Required Lenders,
with the prior written consent of the Borrower (provided that no consent of the
Borrower shall be required during the existence and continuance of an Event of
Default) which consent shall not be unreasonably withheld or delayed, shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the notice of resignation, then the retiring Agent shall
select a successor Agent provided such successor is a Lender hereunder or a
commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$400,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as Agent,
as appropriate, under this Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
SECTION 11
MISCELLANEOUS
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via facsimile with receipt confirmed, to the
number set out below, (iii) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier service
(marked for next day delivery), or (iv) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address, in the case of the Borrower
and the Agent, set forth below, and, in the case of the Lenders, set forth on
Schedule 11.1, or at such other address as such party may specify by written
notice to the other parties hereto:
if to the Borrower:
▇▇▇▇▇ COMPANIES, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Executive Vice President and
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ COMPANIES, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent:
BANK OF AMERICA, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11.2 Right of Set-Off.
----------------
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of the Borrower against obligations and liabilities of such Person
to such Lender hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether such Lender shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
Any Person purchasing a participation in the Loans and Commitments hereunder
pursuant to Section 3.13 or Section 11.3(d) may exercise all rights of set-off
with respect to its participation interest as fully as if such Person were a
Lender hereunder.
11.3 Benefit of Agreement; Assignments.
---------------------------------
(a) This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto; provided that none of the Credit Parties may
assign or transfer any of its interests and obligations without prior
written consent of the Lenders; and provided further that the rights of
each Lender to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth in this
Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement
(including all or a portion of its Loans, its Notes, and its
Commitment); provided, however, that
(1) each such assignment shall be to an Eligible Assignee;
(2) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations
under this Credit Agreement, any such partial assignment shall
be in an amount at least equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof;
(3) each such assignment by a Lender shall be of a constant, and not varying,
percentage of all of its rights and obligations under this Credit Agreement
and the Notes; and
(4) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance
in the form of Exhibit H hereto, together with any Note
subject to such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Credit Agreement. Upon
the consummation of any assignment pursuant to this Section 11.3(b), the
assignor, the Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent certification as
to exemption from deduction or withholding of Taxes in accordance with Section
3.11.
(c) The Agent shall maintain at its address referred to in Section
11.1 a copy of each Assignment and Acceptance delivered to and
accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of
Exhibit H hereto, (i) accept such Assignment and Acceptance and (ii)
give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under
this Credit Agreement (including all or a portion of its Commitment or
its Loans); provided, however, that (i) such Lender's obligations under
this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained
herein and the right of set-off contained in Section 11.2, and (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, extending its Commitment or releasing all or substantially all
of the Guarantors from the Guaranty Obligations hereunder or all or
substantially all of the Collateral).
(f) Notwithstanding any other provision set forth in this Credit Agreement,
any Lender may at any time assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to the provisions of Section 11.14 hereof.
11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Agent or any Lender and the
Borrower shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Agent or the Lenders to any other or further action in any circumstances
without notice or demand.
11.5 Payment of Expenses, etc.
------------------------
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent and the Lead Arranger in connection with the
negotiation, preparation, execution and delivery and administration of this
Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including the reasonable fees and expenses of
counsel to the Agent), and any amendment, waiver or consent relating hereto and
thereto including any such amendments, waivers or consents resulting from or
related to any work-out, renegotiation or restructure relating to the
performance by the Borrower under this Credit Agreement and (B) of the Agent,
the Lead Arranger and the Lenders in connection with enforcement of the Credit
Documents and the documents and instruments referred to therein (including in
connection with any such enforcement, the reasonable fees and disbursements of
counsel for the Agent, the Lead Arranger and each of the Lenders); (ii) pay and
hold each of the Lenders harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iii) indemnify the Agent,
the Lead Arranger, each Lender and their respective officers, directors,
employees, representatives from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of (A)
any investigation, litigation or other proceeding (whether or not any Lender is
a party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding or (B) the presence or Release of any Materials of Environmental
Concern at, under or from any Property owned, operated or leased by the Borrower
or any of its Subsidiaries, or the failure by the Borrower or any of its
Subsidiaries to comply with any Environmental Law (but excluding, in the case of
either of clause (A) or (B) above, any such losses, liabilities, claims, damages
or expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement nor any of the other Credit Documents,
nor any of the terms hereof or thereof may be amended, changed, waived,
discharged or terminated unless such amendment, change, waiver, discharge or
termination is in writing entered into by, or approved in writing by, the
Required Lenders and the Borrower, provided, however that:
(a) no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender directly affected thereby, (i)
reduce the rate or extend the time of payment of interest (other than
as a result of waiving the applicability of any post-default increase
in interest rates) on any Loan or fees hereunder, (ii) extend (A) the
Commitments of the Lenders, (B) the final maturity of any Loan, or any
portion thereof, or (C) the time of payment of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters
of Credit, (iii) reduce the principal amount on any Loan, (iv) increase
the Commitments of the Lenders over the amount thereof in effect (it
being understood and agreed that a waiver of any Default or Event of
Default or of a mandatory reduction in the total commitments shall not
constitute a change in the terms of any Commitment of any Lender), (v)
release all or substantially all of the Collateral, (vi) release all or
substantially all of the Guarantors from the Guaranty Obligations
hereunder, (vii) amend, modify or waive any provision of this Section
11.6 or Section 3.4(c), 3.6, 3.10, 3.11, 3.12, 3.13, 9.1(a), 11.2,
11.3, 11.5 or 11.9, (viii) reduce any percentage specified in, or
otherwise modify, the definition of "Required Lenders," or (ix) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents to which it
is a party; and
(b) no provision of Section 2.2 may be amended without the consent of
the Issuing Lender, no provision of Section 2.4 may be amended without
the consent of the Swingline Lender and no provision of Section 10 may
be amended without the consent of the Agent.
11.7 Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
11.8 Headings.
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The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
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All indemnities set forth herein, including in Section 2.2(h), 3.9,
3.11, 7.9, 10.7 or 11.5 shall survive the execution and delivery of this Credit
Agreement, the making of the Loans, the issuance of the Letters of Credit, the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Borrower herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
------------------------------------------------
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS. Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the
State of Illinois, or of the United States for the Northern District of
Illinois, and, by execution and delivery of this Credit Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of
such courts. The Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices pursuant to
Section 11.1, such service to become effective three Business Days after
such mailing. Nothing herein shall affect the right of the Agent to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against the Borrower in any other
jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Credit
Agreement or any other Credit Document brought in the courts referred
to in subsection (a) hereof and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS AND
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
11.11 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
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This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 Binding Effect; Termination.
---------------------------
( a) This Credit Agreement shall become effective on the Effective Date
and thereafter this Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall extend until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the
other Credit Documents shall remain outstanding and until all of the
Commitments hereunder shall have expired or been terminated.
11.14 Confidentiality.
---------------
The Agent, the Lead Arranger and each Lender (each, a "Lending Party")
agrees to keep confidential any information furnished or made available to it by
the Borrower pursuant to this Credit Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of disclosure by
any Lending Party prohibited by this Credit Agreement, (g) in connection with
any litigation to which such Lending Party or any of its affiliates may be a
party, (h) to the extent necessary in connection with the exercise of any remedy
under this Credit Agreement or any other Credit Document, and (i) subject to
provisions substantially similar to those contained in this Section, to any
actual or proposed participant or assignee.
11.15 Conflict.
--------
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
1.16 Restatement of Existing Agreement.
---------------------------------
(a) Effective on the Effective Date (i) the Existing Agreement shall
be deemed to be restated in the form hereof (except such provisions
thereof which by their terms survive any termination thereof (without
duplicating the obligations of the Borrower under this Credit
Agreement)), (ii) each "Letter of Credit" outstanding under the
Existing Agreement shall be deemed to be a Letter of Credit hereunder,
(iii) the Commitments of the Lenders shall be reallocated in
accordance with the terms hereof and each Lender shall have a direct
or participation share equal to its Revolving Commitment Percentage of
all outstanding Extensions of Credit (including each of the Letters of
Credit referred to in clause (ii) above). The Borrower, the Agent and
the Lenders hereby agree that the Borrower will pay, on the Effective
Date, all interest, fees and other amounts (including amounts payable
pursuant to Section 3.11 of the Existing Agreement, assuming for such
purpose that the loans under the Existing Agreement were prepaid
rather than reallocated on the Effective Date) owed to each Lender
which is a party to the Existing Agreement (each an "Existing Lender")
under the Existing Agreement.
(b) To facilitate the reallocation described in clause (a) above, on
the Effective Date, (i) all revolving loans under the Existing Credit
Agreement shall be deemed to be Loans hereunder, (ii) each Existing
Lender shall transfer to the Agent an amount equal to the excess, if
any, of such Lender's Revolving Commitment Percentage of all
outstanding Loans hereunder (including any Loans requested by the
Borrower on the Effective Date) over the amount of all of such Lender's
loans under the Existing Agreement, (iii) each of the Lenders not party
to the Existing Agreement shall transfer to the Agent an amount equal
to such Lender's Revolving Commitment Percentage of all outstanding
Loans hereunder (including any Loans requested by the Borrower on the
Effective Date), (iv) the Agent shall apply the funds received from the
Lenders pursuant to clauses (ii) and (iii), first, on behalf of the
Lenders (pro rata according to the amount of the loans each is required
to purchase to achieve the reallocation described in clause (a)), to
purchase from each Existing Lender which has loans under the Existing
Agreement in excess of such Lender's Revolving Commitment Percentage of
all then-outstanding Loans hereunder (including any Loans requested by
the Borrower on the Effective Date), a portion of such loans equal to
such excess, second, to pay to each Existing Lender all interest, fees
and other amounts (including amounts payable pursuant to Section 3.11
of the Existing Agreement, assuming for such purpose that the loans
under the Existing Agreement were prepaid rather than reallocated on
the Effective Date) owed to such Existing Lender under the Existing
Agreement (whether or not otherwise then due) and, third, as the
Borrower shall direct, and (v) the Borrower shall select new Interest
Periods to apply to all Loans hereunder (or, to the extent the Borrower
fails to do so, such Loans shall become Base Rate Loans).
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ▇▇▇▇▇ COMPANIES, INC.,
a Delaware corporation
By: _______________________________
Name:_____________________________
Title:______________________________
GUARANTORS: ▇▇▇▇▇ AIR FREIGHT, INC.,
a Texas corporation
By: _______________________________
Name:_____________________________
Title:______________________________
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
FLEET NATIONAL BANK,
individually in its capacity as a Lender
and in its capacity as Syndication Agent
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
STANDARD CHARTERED BANK OF NEW YORK
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
BANK ONE, NA (Main Office Chicago)
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
MELLON BANK, N.A.
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
BANK HAPOALIM
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
BNP PARIBAS
By: _______________________________
Name:_____________________________
Title:______________________________
Signature page to Credit Agreement dated as of August 14, 2000 among
▇▇▇▇▇ Companies, Inc., as Borrower, certain subsidiaries of the
Borrower, as Guarantors, the Lenders and Bank of America, N.A., as
Agent.
CALIFORNIA BANK & TRUST
By: _______________________________
Name:_____________________________
Title:______________________________