EXHIBIT 10.2
[EXECUTION COPY]
CREDIT AGREEMENT
Dated as of June 25, 2003
among
▇▇▇▇▇▇▇ NAVIGATION LIMITED,
as the Company,
THE SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Issuing Bank and Swing Line Bank,
FLEET NATIONAL BANK
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Syndication Agents,
and
UNION BANK OF CALIFORNIA
and
▇▇▇▇▇ FARGO BANK,
as Co-Documentation Agents.
-------------------------------------------
Arranged by
THE BANK OF NOVA SCOTIA,
as Lead Arranger and Sole Book Runner
Table of Contents
Page
ARTICLE I DEFINITIONS..............................................1
1.1 Certain Defined Terms........................................1
ARTICLE II LOAN FACILITIES.........................................24
2.1 Revolving Loans.............................................24
2.2 Term Loans..................................................25
2.3 Swing Line Loans............................................25
2.4 Rate Options for all Advances; Maximum Interest Periods.....27
2.5 Optional Payments; Mandatory Prepayments....................27
2.6 Reductions and Adjustments of Revolving Loan Commitments....29
2.7 Method of Borrowing.........................................29
2.8 Method of Selecting Types and Interest Periods for
Advances....................................................29
2.9 Minimum Amount of Each Advance..............................30
2.10 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances.....................30
2.11 Default Rate................................................31
2.12 Method of Payment...........................................31
2.13 Evidence of Debt............................................31
2.14 Telephonic Notices..........................................32
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts....32
2.16 Notification of Advances, Interest Rates, Prepayments
and Aggregate Revolving Loan Commitment Reductions .........36
2.17 Lending Installations.......................................36
2.18 Non-Receipt of Funds by the Administrative Agent............37
2.19 Termination Date............................................37
2.20 Replacement of Certain Lenders..............................37
2.21 Subsidiary Borrowers........................................38
2.22 Security....................................................38
ARTICLE III THE LETTER OF CREDIT FACILITY...........................39
3.1 Obligation to Issue Letters of Credit.......................39
3.2 Transitional Provision......................................39
3.3 Types and Amounts...........................................39
3.4 Conditions..................................................39
3.5 Procedure for Issuance of Letters of Credit.................40
3.6 Letter of Credit Participation..............................40
3.7 Reimbursement Obligation....................................40
3.8 Letter of Credit Fees.......................................42
3.9 Issuing Bank Reporting Requirements.........................42
3.10 Indemnification; Exoneration................................42
3.11 Cash Collateral.............................................43
ARTICLE IV CHANGE IN CIRCUMSTANCES.................................44
4.1 Yield Protection............................................44
4.2 Changes in Capital Adequacy Regulations.....................45
4.3 Availability of Types of Advances...........................45
4.4 Funding Indemnification.....................................45
4.5 Lender Statements; Survival of Indemnity....................46
ARTICLE V CONDITIONS PRECEDENT....................................46
5.1 Initial Advances and Letters of Credit......................46
5.2 Initial Advance to Each New Subsidiary Borrower.............48
5.3 Each Advance and Each Letter of Credit......................49
ARTICLE VI REPRESENTATIONS AND WARRANTIES..........................49
6.1 Organization; Corporate Powers..............................49
6.2 Authorization and Validity..................................49
6.3 No Conflict; Government Consent.............................50
6.4 Financial Statements........................................50
6.5 Material Adverse Change.....................................50
6.6 Taxes.......................................................50
6.7 Litigation and Contingent Obligations.......................50
6.8 Subsidiaries................................................51
6.9 ERISA.......................................................51
6.10 Accuracy of Information.....................................51
6.11 Regulation U................................................52
6.12 Material Agreements.........................................52
6.13 Compliance With Laws........................................52
6.14 Ownership of Properties.....................................52
6.15 Statutory Indebtedness Restrictions.........................53
6.16 Environmental Matters.......................................53
6.17 Insurance...................................................53
6.18 Labor Matters...............................................53
6.19 Solvency....................................................54
6.20 Default.....................................................54
6.21 Foreign Employee Benefit Matters............................54
6.22 Collateral Documents........................................54
6.23 Security....................................................54
6.24 Subsidiaries................................................54
6.25 Representations and Warranties of each Subsidiary Borrower..54
ARTICLE VII COVENANTS...............................................56
7.1 Reporting...................................................56
7.2 Affirmative Covenants.......................................60
7.3 Negative Covenants..........................................63
7.4 Financial Covenants.........................................70
ARTICLE VIII DEFAULTS................................................71
8.1 Defaults....................................................71
ARTICLE IX ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES.................................73
9.1 Termination of Revolving Loan Commitments; Acceleration.....73
9.2 Amendments..................................................74
9.3 Preservation of Rights......................................75
ARTICLE X GUARANTY................................................75
10.1 Guaranty....................................................75
10.2 Waivers.....................................................75
10.3 Guaranty Absolute...........................................76
10.4 Acceleration................................................77
10.5 Marshaling; Reinstatement...................................77
10.6 Subrogation.................................................77
10.7 Termination Date............................................77
ARTICLE XI GENERAL PROVISIONS......................................77
11.1 Survival of Representations.................................77
11.2 Governmental Regulation.....................................78
11.3 Headings....................................................78
11.4 Entire Agreement............................................78
11.5 Several Obligations; Benefits of this Agreement.............78
11.6 Expenses; Indemnification...................................78
11.7 Numbers of Documents........................................79
11.8 Accounting..................................................79
11.9 Severability of Provisions..................................79
11.10 Nonliability of Lenders.....................................79
11.11 GOVERNING LAW...............................................79
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.....80
11.13 Other Transactions..........................................81
ARTICLE XII THE ADMINISTRATIVE AGENT................................81
12.1 Appointment; Nature of Relationship.........................81
12.2 Powers......................................................82
12.3 General Immunity............................................82
12.4 No Responsibility for Loans, Creditworthiness,
Recitals, Etc...............................................82
12.5 Action on Instructions of Lenders...........................82
12.6 Employment of Agents and Counsel............................83
12.7 Reliance on Documents; Counsel..............................83
12.8 The Administrative Agent's, Issuing Banks' and
Swing Line Bank's Reimbursement and Indemnification.........83
12.9 Rights as a Lender..........................................84
12.10 Lender Credit Decision......................................84
12.11 Successor Administrative Agent..............................84
12.12 No Duties Imposed Upon Co-Syndication Agent,
Co-Documentation Agent or Arranger..........................85
12.13 Collateral Agent............................................85
ARTICLE XIII SETOFF; RATABLE PAYMENTS................................85
13.1 Setoff......................................................85
13.2 Ratable Payments............................................85
13.3 Application of Payments.....................................86
13.4 Relations Among Lenders.....................................86
ARTICLE XIV BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.......86
14.1 Successors and Assigns......................................86
14.2 Participations..............................................87
14.3 Assignments.................................................87
14.4 Confidentiality.............................................90
14.5 Dissemination of Information................................90
ARTICLE XV NOTICES.................................................90
15.1 Giving Notice...............................................90
15.2 Change of Address...........................................90
15.3 Authority of Company........................................90
ARTICLE XVI COUNTERPARTS............................................91
ANNEXES, EXHIBITS AND SCHEDULES
ANNEX I .........Loan Commitments
ANNEX II .........Eurocurrency Payment Offices
EXHIBIT A.........Form of Borrowing/Conversion/Continuation Notice
EXHIBIT B.........Form of Request for Letter of Credit
EXHIBIT C.........Form of Assignment and Acceptance Agreement
EXHIBIT D.........Form of Officer's Certificate
EXHIBIT E.........Form of Compliance Certificate
EXHIBIT F.........Form of Guaranty
EXHIBIT G.........Form of Subordination Agreement
EXHIBIT H-1.......Form of Revolving Loan Note
EXHIBIT H-2.......Form of Term Loan Note
EXHIBIT I.........Form of Assumption Letter
SCHEDULE 1.1.1....Permitted Existing Contingent Obligations
SCHEDULE 1.1.2....Permitted Existing Indebtedness
SCHEDULE 1.1.3....Permitted Existing Investments
SCHEDULE 1.1.4....Permitted Existing Liens
SCHEDULE 3.2......Transitional Letters of Credit
SCHEDULE 6.8......Subsidiaries
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of June 25, 2003, is entered into by
and among, ▇▇▇▇▇▇▇ NAVIGATION LIMITED, a California corporation (the "Company"),
the institutions from time to time parties hereto as Lenders, whether by
execution of this Agreement or an Assignment Agreement pursuant to Section 14.3,
THE BANK OF NOVA SCOTIA ("BNS"), in its capacity as administrative agent for
itself and the other Lenders (the "Administrative Agent"), FLEET NATIONAL BANK
("Fleet") and GENERAL ELECTRIC CAPITAL CORPORATION ("GECC"), each in its
capacity as a co-syndication agent (collectively, the "Co-Syndication Agents"),
and UNION BANK OF CALIFORNIA ("UBOC") and ▇▇▇▇▇ FARGO BANK ("▇▇▇▇▇ FARGO"), each
in its capacity as a co-documentation agent (collectively, the "Co-Documentation
Agents").
R E C I T A L S:
A. The Company has requested the Lenders to make financial
accommodations to it in the aggregate principal amount of $175,000,000, the
proceeds of which the Company will use to (i) repay certain existing
indebtedness of the Borrowers (the "Refinancing"); (ii) pay fees and expenses
related to the Loans, the Refinancing and all related transactions; and (iii)
for ongoing working capital and general corporate needs of the Company and its
Subsidiaries.
B. The Lenders are willing to extend such financial
accommodations on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the
Lenders and the Administrative Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (a) acquires any going business concern or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (b) directly
or indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"Administrative Agent" is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to Section
12.11.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loan(s) made by some or all of the Lenders to the
applicable Borrower of the same Type and, in the case of Eurocurrency Rate
Advances, and for the same Interest Period.
"Affected Lender" is defined in Section 2.20 hereof.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date of determination, the sum
of (a) the Aggregate Revolving Loan Commitment as of such date and (b) the
Aggregate Term Loan Commitment as of such date.
"Aggregate Revolving Loan Commitment" means the aggregate of the
Revolving Loan Commitment of all Lenders, as they may be adjusted from time to
time pursuant to the terms hereof. The Aggregate Revolving Loan Commitment shall
not be greater than One Hundred Twenty Five Million and 00/100 Dollars
($125,000,000.00).
"Aggregate Term Loan Commitment" means the aggregate of the Term Loan
Commitments of all the Lenders. The initial Aggregate Term Loan Commitment is
Fifty Million and 00/100 Dollars ($50,000,000.00).
"Agreement" means, on any date, this Credit Agreement as amended,
supplemented, amended and restated or otherwise modified from time to time and
in effect on such date.
"Agreement Accounting Principles" means generally accepted accounting
principles as applied in a manner consistent with that used in preparing the
financial statements of the Company referred to in Section 6.4 hereof; provided
that for the purposes of determining compliance with the financial covenants set
forth in Section 7.4 hereof, "Agreement Accounting Principles" means generally
accepted accounting principles as in effect as of the date of this Agreement.
"Alternate Base Rate" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (a) the Prime Rate for such day and
(b) the sum of (i) the Federal Funds Effective Rate for such day and (ii) one
half percent (.50%) per annum.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(c)(i) hereof determined in accordance with the
provisions of Section 2.15(d)(ii) hereof.
"Applicable Eurocurrency Margin" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(d)(ii) hereof.
"Applicable Floating Rate Margin" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(d)(ii) hereof.
"Applicable L/C Fee Percentage" means, as at any date of determination,
a rate per annum equal to the Applicable Eurocurrency Margin for Eurocurrency
Rate Loans in effect on such date.
"Approved Fund" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Arranger" means BNS, as Lead Arranger and Sole Book Runner, in its
capacity as arranger for the loan transaction evidenced by this Agreement.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction) to any Person other than the
Company or any of its Wholly-Owned Subsidiaries other than (a) the sale or lease
of Inventory in the ordinary course of business, (b) the sale or other
disposition of any obsolete, excess, damaged or worn-out Equipment disposed of
in the ordinary course of business and (c) the sale or liquidation of Cash
Equivalents, (d) dispositions or transfers in the nature of a license or
sublicense of intellectual property, other than licenses that are exclusive
across all regions and fields and (e) other sales, dispositions, leases,
conveyances or transfers in the ordinary course of business, consistent with
past practices.
"Assigning Lender" is defined in Section 14.3.
"Assignment Agreement" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit C hereto.
"Assumption Letter" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit I hereto pursuant
to which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be
bound by the terms and conditions hereof.
"Authorized Officer" means any of the Chairman of the Board, the
President, the Treasurer, any Vice President or the Chief Financial Officer of
the Company, acting singly.
"Benefit Plan" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
and in respect of which the Company or any other member of the Controlled Group
is, or within the immediately preceding six (6) years was, an "employer" as
defined in Section 3(5) of ERISA.
"BNS" is defined in the preamble.
"Borrower" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"Borrowers" shall mean, collectively, the Company and the Subsidiary Borrowers.
"Borrowing/Conversion/Continuation Notice" is defined in Section 2.8
hereof.
"Borrowing Date" means a date on which a Loan is made hereunder.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate, a day (other than
a Saturday or Sunday) on which banks are open for business in Chicago, Illinois,
New York, New York and San Francisco, California, and (b) for all other purposes
a day (other than a Saturday or Sunday) on which banks are open for business in
Chicago, Illinois, New York, New York and San Francisco, California.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (a) the cost of assets acquired with Capitalized Lease Obligations,
(b) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss and (c) leasehold improvement expenditures for which the Company
or a Subsidiary is reimbursed promptly by the lessor.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership, partnership interests
(whether general or limited) and (d) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person; provided that "Capital Stock"
shall not include any debt securities convertible into equity securities prior
to such conversion.
"Capitalized Lease" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed by
the full faith and credit of the United States government; (b) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by ▇▇▇▇▇'▇
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (c) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (i) investment grade securities (i.e., securities rated at
least Baa by ▇▇▇▇▇'▇ Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (ii) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by ▇▇▇▇▇'▇ Investors Services, Inc. (all such institutions
being, "Qualified Institutions"); (d) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof
and (e) other Investments properly classified as "cash" or "cash equivalents" in
accordance with Agreement Accounting Principles and made in accordance with the
Company's investment policy, as approved by the Company's Board of Directors
from time to time.
"Change" is defined in Section 4.2 hereof.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act of 1934), becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act of 1934,
provided that a person shall be deemed to have "beneficial ownership"
of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of twenty-five percent (25%) or more of
the combined voting power of the Company's outstanding Capital Stock
ordinarily having the right to vote at an election of directors; or
(b) the majority of the board of directors of the Company fails to consist
of Continuing Directors; or
(c) the Company consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property
to any Person, or any corporation consolidates with or merges into the
Company, in either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or changed
into or exchanged for cash, securities or other property.
"Closing Date" means the date upon which the conditions precedent set
forth in Article V hereof have been satisfied and the initial Loans hereunder
made, which date shall be no later than July 14, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Co-Documentation Agents" is defined in the preamble and includes such
Persons' successors and assigns.
"Collateral Agent" means the collateral agent for the Lenders, selected
pursuant to Section 12.13.
"Collateral Documents" means, collectively, (a) the Security
Agreements, the Mortgages, the Pledge Agreements and all other security
agreements, mortgages, deeds of trust, patent and trademark assignments, lease
assignments, guarantees and other similar agreements between any Borrower or
Guarantor and the Lenders, the Administrative Agent or the Collateral Agent for
the benefit of the Lenders now or hereafter delivered to the Lenders, the
Administrative Agent or the Collateral Agent pursuant to or in connection with
the transactions contemplated hereby, and all financing statements (or
comparable documents now or hereafter fixed in accordance with the UCC or
comparable law) against any Borrower or Guarantor as debtor in favor of the
Lenders, the Administrative Agent or the Collateral Agent for the benefit of the
Lenders as secured party, and (b) any amendments, supplements, modifications,
renewals, replacements, consolidations, substitutions and extensions of any of
the foregoing.
"Commission" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"Commitment" as to each Lender, means such Lender's Revolving Loan
Commitment and/or Term Loan Commitment, as the case may be.
"Company" is defined in the preamble and includes such Person's
successors and assigns, including a debtor-in-possession on behalf of such
Person.
"Consolidated Net Assets" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill and other
intangible assets under Agreement Accounting Principles.
"Consolidated Net Worth" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, in each case as determined in
accordance with Agreement Accounting Principles but excluding the effects,
whether positive or negative, of foreign exchange translation adjustments after
the Closing Date.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"Contingent Obligation", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the portion of the obligation so
guaranteed or otherwise supported, in the case of known recurring obligations,
and the maximum reasonably anticipated liability in respect of the portion of
the obligation so guaranteed or otherwise supported assuming such Person is
required to perform thereunder, in all other cases.
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the date hereof or (b) was nominated
for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board at the time of such
nomination or election.
"Contractual Obligation", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"Controlled Group" means the group consisting of (a) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (b) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(c) a member of the same affiliated service group (within the meaning of Section
414(m) of the Code) as the Company, in each case ((a), (b) or (c)) giving effect
to the consummation of the transactions contemplated by the Loan Documents.
"Co-Syndication Agents" is defined in the preamble and includes such
Persons' successors and assigns.
"Customary Permitted Liens" means:
(a) Liens (other than Environmental Liens and Liens in favor of the IRS or
the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (so long as
foreclosure, distraint, sale or other similar proceedings shall not
have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(b) Statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen, service providers or workmen and
other similar Liens imposed by law created in the ordinary course of
business for amounts not more than sixty (60) days past due or which
thereafter can be paid without penalty or which are being contested in
good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(c) Liens arising with respect to zoning restrictions, easements,
encroachments, licenses, reservations, covenants, rights-of-way,
utility easements, building restrictions and other similar charges,
restrictions or encumbrances on the use of real property which do not
in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary use or occupancy of
the real property or with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(d) Liens arising in the ordinary course of business out of pledges or
deposits under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits, or
similar legislation;
(e) Liens arising from or upon any judgment or award; provided that (i) no
Default under Section 8.1(g) has occurred or is continuing at the time
of incurrence thereof and (ii) such judgment or award is being
contested in good faith by proper appeal proceedings and only so long
as execution thereon shall be stayed;
(f) Deposits to secure the performance of bids, trade contracts (other than
for Indebtedness for borrowed money), leases, statutory obligations,
surety bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of the Company's or any Subsidiary's
business;
(g) Leases or subleases and licenses and sublicenses granted to others in
the ordinary course of the Company's business not interfering in any
material respect with the business of the Company and its Subsidiaries
taken as a whole, and any interest or title of a lessor, licensor or
under any lease or license;
(h) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the
importation of goods; and
(i) Liens that are subordinate to the Lien of the Administrative Agent or
Lenders which constitute rights of set-off of a customary nature or
bankers' liens with respect to amounts on deposit, whether arising by
operation of law or by contract, in connection with arrangements
entered into with banks in the ordinary course of business.
"Default" means an event described in Article VIII hereof.
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise: (a) is required to be redeemed prior to
the date which is six months after the Facility Termination Date, (b) is
redeemable at the option of the holder of such class or series of Capital Stock
at any time prior to the date which is six months after the Facility Termination
Date; or (c) is convertible into or exchangeable or exchangeable for Capital
Stock referred to in clause (a) or (b) or Indebtedness having a scheduled
maturity prior to the date which is six months after the Facility Termination
Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollar" and "$" means dollars in the lawful currency of the United
States of America.
"Domestic Subsidiary" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America.
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (a) Net Income, plus (b) cash Interest Expense to the extent
deducted in computing Net Income, plus (c) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (d) depreciation expense to the extent deducted in computing Net Income,
plus (e) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (f) other non-recurring non-cash charges to the extent deducted in
computing Net Income, including, without limitation, (i) certain charges netted
against non-recurring credits for the third and fourth fiscal quarters of the
2002 fiscal year, the net amount of which shall not exceed $2,500,000 for such
fiscal quarters and (ii) certain charges netted against non-recurring credits
for the third fiscal quarter of the 2003 fiscal year, the net amount of which
shall not exceed $3,525,000, minus (g) other non-recurring cash or non-cash
credits to the extent added in computing Net Income.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"Environmental Lien" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Equipment" means all of the Company's and its Subsidiaries' present
and future (a) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(b) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (c) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"Extension Request" is defined in Section 2.6(b) hereof.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Rate
Loan for any specified Interest Period, either (i) the rate of interest per
annum equal to the rate for deposits in the approximate amount of the Pro Rata
Revolving Share or Pro Rata Term Share, as applicable, of the Administrative
Agent of such Eurocurrency Rate Loan with a maturity approximately equal to such
Interest Period which appears on Telerate Page 3750, or, if there is more than
one such rate, the average of such rates rounded to the nearest 1/100 of 1%, as
of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period or (ii) if no such rate of interest appears on Telerate Page
3750 for any specified Interest Period, the rate at which deposits are offered
by the Administrative Agent to first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period, in the approximate amount of the Pro Rata
Revolving Share or Pro Rata Term Share, as applicable, of the Administrative
Agent of such Eurocurrency Rate Loan and having a maturity approximately equal
to such Interest Period. The term "Telerate Page 3750" means the display
designated as "Page 3750", on the Dow ▇▇▇▇▇ Market Service (or such other page
as may replace Page 3750, on the Dow ▇▇▇▇▇ Market Service or such other service
as may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association interest rate
settlement rates).
"Eurocurrency Payment Office" of the Administrative Agent shall mean,
any agency, branch or Affiliate of the Administrative Agent, specified as the
"Eurocurrency Payment Office" in Annex II hereto or such other agency, branch,
Affiliate or correspondence bank of the Administrative Agent, as it may from
time to time specify to the applicable Borrowers and each Lender as its
Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the sum of (a) the quotient of (i) the
Eurocurrency Base Rate applicable to such Interest Period divided by (ii) one
minus the Reserve Requirement plus (b) the then Applicable Eurocurrency Margin,
changing as and when the Applicable Eurocurrency Margin changes.
"Eurocurrency Rate Advance" means an Advance which bears interest at
the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Loan made by a Lender pursuant to
Section 2.1, which bears interest at the Eurocurrency Rate.
"Existing Credit Agreement" means that certain Credit Agreement, dated
as of January 14, 2003, as modified and in effective immediately prior to the
date hereof, among the Company, BNS, Fleet National Bank, as Syndication Agent,
and Bank of America, N.A., as Documentation Agent.
"Facility Termination Date" is defined in Section 2.19.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fee Letter" means that certain fee letter, dated as of May 9, 2003, by
and between the Company and BNS.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the ratio of (a) EBITDA minus Capital Expenditures to (b) Fixed Charges, in each
case for the period of four fiscal quarters ending on such date.
"Fixed Charges" means, with respect to the Company and its Subsidiaries
on a consolidated basis, as of any date of determination, (a) cash interest
expenses paid on outstanding Indebtedness for the period of four fiscal quarters
ending on the date of determination, plus (b) scheduled principal payments on
Indebtedness made during such period, plus (c) dividends paid on stock during
such period.
"Floating Rate" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes, plus the then Applicable Floating Rate Margin.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"Foreign Employee Benefit Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"Foreign Intercompany Transfer" is defined in Section 7.3(a).
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA which (a) is maintained or contributed to for the benefit
of employees of the Company, any of its Subsidiaries or any member of its
Controlled Group, (b) is not covered by ERISA pursuant to Section 4(b)(4) of
ERISA, and (c) under applicable local law, is required to be funded through a
trust or other funding vehicle.
"Foreign Subsidiary" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"Governmental Acts" is defined in Section 3.10(a) hereof.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"Guaranteed Obligations" is defined in Section 10.1 hereof.
"Guarantor" means each Domestic Subsidiary of the Company that from
time to time is party to a Guaranty.
"Guaranty" means each of (a) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Subsidiary and each other Domestic Subsidiary of the Company as
required pursuant to Section 7.2(k) in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, in substantially the form of
Exhibit F attached hereto, and (b) the guaranty by the Company of all of the
Obligations of the Subsidiary Borrowers pursuant to this Agreement, in each case
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Hedging Agreements" is defined in Section 7.3(m) hereof.
"Hedging Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"Holders of Obligations" means the holders of the Obligations from time
to time and shall include (a) each Lender in respect of its Loans, (b) each
Issuing Bank in respect of Reimbursement Obligations owed to it, (c) the
Administrative Agent, the Lenders and the Issuing Banks in respect of all other
present and future obligations and liabilities of the Company or any of its
Subsidiaries of every type and description arising under or in connection with
this Agreement or any other Loan Document, (d) each Indemnitee in respect of the
obligations and liabilities of the Company or any of its Subsidiaries to such
Person hereunder or under the other Loan Documents, and (e) their respective
successors, transferees and assigns.
"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such person's business payable on terms customary in the
trade and earn-out payments arising in connection with Permitted Acquisitions),
(c) obligations, whether or not assumed, secured by Liens on or payable out of
the proceeds or production from property now or hereafter owned or acquired by
such Person, (d) obligations which are evidenced by notes, acceptances, or other
similar instruments, (e) Capitalized Lease Obligations, (f) Hedging Obligations,
(g) Contingent Obligations, (h) actual and contingent reimbursement obligations
in respect of letters of credit, and (i) the implied debt component of synthetic
leases of which such Person is lessee or any other off-balance sheet financing
arrangements (including, without limitation, any such arrangements giving rise
to any Off-Balance Sheet Liabilities); provided that the term "Indebtedness"
shall not include any (a) accrued or deferred interest or other expenses, unless
capitalized in accordance with Agreement Accounting Principles, or (b) lease
properly classified as an operating lease in accordance with Agreement
Accounting Principles. The amount of any item of Indebtedness, except for any
item of Indebtedness described in clause (h), shall be the amount of any
liability in respect thereof appearing on a balance sheet properly prepared in
accordance with Agreement Accounting Principles, except that the amount of any
item of Indebtedness described in clause (g) shall be determined in accordance
with the definition of Contingent Obligations and the amount of any item of
Indebtedness described in clause (i) above shall be the "principal-equivalent"
amount of such obligation.
"Interest Expense" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit), all as determined in conformity with
Agreement Accounting Principles.
"Interest Period" means, with respect to a Eurocurrency Rate Loan, a
period of one (1), two (2), three (3), six (6) months or, with the consent of
all of the Lenders, nine (9) months, commencing on a Business Day selected by
the applicable Borrower on which a Eurocurrency Rate Advance is made to such
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three, six
or nine months thereafter; provided that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided that if said next succeeding Business Day
falls in a new calendar month, such Interest Period shall end on the immediately
preceding Business Day.
"Inventory" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale, rental or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of the Company or any of its Subsidiaries, and shall include all
right, title and interest of the Company or any of its Subsidiaries in any
property the sale or other disposition of which has given rise to Receivables
and which has been returned to or repossessed or stopped in transit by the
Company or any of its Subsidiaries.
"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (b) any purchase by that Person of
all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (c) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"Issuing Banks" means BNS or any of its Affiliates in its separate
capacity as an issuer of Letters of Credit pursuant to Sections 3.1 and 3.2.
"L/C Documents" is defined in Section 3.4 hereof.
"L/C Draft" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C Interest" shall have the meaning ascribed to such term in Section
3.6 hereof.
"L/C Obligations" means, without duplication, an amount equal to the
sum of (a) the aggregate amount then available for drawing under each of the
Letters of Credit, (b) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, (c) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (d) the aggregate amount equal to the
face amount of all Letters of Credit requested by the Borrowers but not yet
issued (unless the request for an unissued Letter of Credit has been denied).
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, and their successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent.
"Letter of Credit" means standby letters of credit to be (a) issued by
the Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.
"Leverage Ratio" means, as of any date of determination, the ratio of
(a) Total Indebtedness on such date of determination to (b) EBITDA for the most
recently ended period of four fiscal quarters (including any fiscal quarters
ending on the date of determination.)
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement of any kind or nature whatsoever (including,
without limitation, the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title retention agreement); provided that in no
event shall the lessor's interest under any lease properly classified as an
operating lease in accordance with Agreed Accounting Principles be a "Lien" for
purposes of this definition.
"Loan(s)" means, (a) in the case of any Lender, such Lender's portion
of any Advance made pursuant to Section 2.1 hereof, and in the case of the Swing
Line Bank, any Swing Line Loan made by it pursuant to Section 2.3, and (b)
collectively, all Revolving Loans, Term Loans, and Swing Line Loans.
"Loan Account" is defined in Section 2.13(a) hereof.
"Loan Documents" means this Agreement, each Assumption Letter executed
hereunder, the Collateral Documents, the Guaranty, the Subordination Agreement,
the Fee Letter, all Hedging Agreements and all other documents, instruments,
notes and agreements executed in connection therewith or contemplated thereby,
as the same may be amended, restated or otherwise modified and in effect from
time to time.
"Loan Parties" means each of the Company, each Subsidiary Borrower and
each of the Guarantors.
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or the Company and its Subsidiaries,
taken as a whole, (b) the ability of the Company or any of its Subsidiaries to
perform their respective obligations under the Loan Documents, or (c) the
ability of the Lenders or the Administrative Agent to enforce the Obligations.
"Mortgages" means one or more deeds of trust, mortgages, leasehold
mortgages, assignments of rents or similar documents, satisfactory in form and
substance to the Administrative Agent, executed and delivered by the Company and
its Domestic Subsidiaries pursuant to or in connection with the transactions
contemplated hereby, as the same may be amended, supplemented or otherwise
modified from time to time.
"Multiemployer Plan" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, or was required to be, contributed to by either the Company or any member
of the Controlled Group.
"Net Income" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"Net Proceeds" means (a) with respect to any Asset Sale, the sum of
cash or readily marketable cash equivalents received (including by way of a cash
generating sale or discounting of a note or receivable, but excluding any other
consideration received in the form of assumption by the acquiring Person of debt
or other obligations relating to the properties or assets so disposed of or
received in any other non-cash form) therefrom, whether at the time of such
disposition or subsequent thereto, or (b) with respect to any sale or issuance
of any debt or equity securities of the Company or any Subsidiary, cash or
readily marketable cash equivalents received (but excluding any other non-cash
form) therefrom, whether at the time of such disposition, sale or issuance or
subsequent thereto, net, in either case, of all legal, title and recording tax
expenses, commissions and other fees and all costs and expenses incurred and all
federal, state, local and other taxes required to be paid or accrued as a
liability as a consequence of such transactions.
"Nonextending Lender" is defined in Section 2.6(b) hereof.
"Notice of Assignment" is defined in Section 14.3(b) hereof.
"Obligations" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank,
any Arranger, any Affiliate of the Administrative Agent or any Lender, any
Issuing Bank or any Indemnitee, of any kind or nature, present or future,
arising under this Agreement, the L/C Documents or any other Loan Document,
whether or not evidenced by any note, guaranty or other instrument, whether or
not for the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification, or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
The term includes, without limitation, all interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements, reasonable paralegals' fees (in
each case whether or not allowed), and any other sum chargeable to the Company
or any of its Subsidiaries under this Agreement or any other Loan Document.
"Obligor" is defined in Section 10.1 hereof.
"Off-Balance Sheet Liabilities" of a Person means (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (ii) any
liability of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (iii) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (iv)
any obligations of such Person or any of its Subsidiaries arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"Other Taxes" is defined in Section 2.15(e)(ii) hereof.
"Participants" is defined in Section 14.2(a) hereof.
"Payment Date" means the last day of each March, June, September and
December, the date on which the Aggregate Revolving Loan Commitment shall
terminate or be cancelled, and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 7.3(f) hereof.
"Permitted Acquisition Basket" is defined in Section 7.3(f) hereof.
"Permitted Existing Contingent Obligations" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"Permitted Existing Investments" means the Investments of the Company
and its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"Permitted Existing Liens" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"Person" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements" means one or more pledge agreements, each in form
and substance satisfactory to the Administrative Agent, executed and delivered
by the Company and/or certain of its Subsidiaries pursuant to or in connection
with transactions contemplated by this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Prime Rate" means the "prime rate" of interest announced by BNS from
time to time at its New York office, changing when and as said prime rate
changes.
"Pro Rata Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (a) such Lender's Revolving Loan Commitment at
such time (as adjusted from time to time in accordance with the provisions of
this Agreement) by (b) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
provided that if all of the Revolving Loan Commitments are terminated pursuant
to the terms of this Agreement, then "Pro Rata Revolving Share" means, with
respect to any Lender, the percentage obtained by dividing (i) the sum of (A)
such Lender's Revolving Loans, plus (B) such Lender's share of the obligations
to purchase participations in Letters of Credit plus (C) such Lender's share of
the obligations to refund or purchase participations in Swing Line Loans, by
(ii) the sum of (A) the aggregate outstanding amount of all Revolving Loans,
plus (B) the aggregate outstanding amount of all Letters of Credit, plus (C) the
aggregate outstanding amount of all Swing Line Loans.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (a) such Lender's Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) by (b) the
Aggregate Commitment at such time (as adjusted from time to time in accordance
with the provisions of this Agreement); provided that if all of the Revolving
Loan Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Share" means, with respect to any Lender, the percentage obtained by
dividing (i) the sum of (A) such Lender's Revolving Loans, plus (B) such
Lender's Term Loans, plus (C) such Lender's share of the obligations to purchase
participations in Letters of Credit plus (D) such Lender's share of the
obligations to refund or purchase participations in Swing Line Loans, by (ii)
the sum of (A) the aggregate outstanding amount of all Revolving Loans, plus (B)
the aggregate outstanding amount of all Term Loans, plus (C) the aggregate
outstanding amount of all Letters of Credit, plus (D) the aggregate outstanding
amount of all Swing Line Loans.
"Pro Rata Term Share" means, with respect to any Lender, the percentage
obtained by dividing such Lender's Term Loan Commitment by the Aggregate Term
Loan Commitment.
"Purchasers" is defined in Section 14.3(a) hereof.
"Rate Option" means the Eurocurrency Rate or the Floating Rate, as
applicable.
"Receivable(s)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, notes receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing, including,
without limitation, any right of stoppage in transit.
"Refinancing" is defined in the first recital.
"Register" is defined in Section 14.3(c) hereof.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligation" is defined in Section 3.7 hereof.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"Repatriated Funds" means amounts paid by Foreign Subsidiaries to the
Company or any Domestic Subsidiary in respect of the repayment of intercompany
loans, dividends and return of capital.
"Replacement Lender" is defined in Section 2.20 hereof.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided that a failure to meet the
minimum funding standards of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are more than fifty percent (50%).
"Requirements of Law" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"Reserve Requirement" shall mean, at any time, the maximum reserve
requirement, as the prescribed by the Board of Governors of the Federal Reserve
System (or any successor) with respect to "Eurocurrency liabilities" or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurocurrency Rate Loans is determined or
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in the Company's or such Subsidiaries' Equity Interests other than Disqualified
Stock or in options, warrants or other rights to purchase such common stock, (b)
any redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of the Company or any of its Subsidiaries now
or hereafter outstanding, other than in exchange for Equity Interests other than
Disqualified Stock of the Company, and (c) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness subordinated to the Obligations.
"Revolving Credit Availability" means, at any particular time, the
amount by which (a) the Aggregate Revolving Loan Commitment at such time exceeds
(b) the Revolving Credit Obligations outstanding at such time.
"Revolving Credit Obligations" means, at any particular time, the sum
of (a) the outstanding Revolving Loans at such time, plus (b) the outstanding
L/C Obligations at such time, plus (c) the outstanding principal amount of all
Swing Line Loans at such time.
"Revolving Loan" and "Revolving Loans" are defined in Section 2.1
hereof.
"Revolving Loan Commitment" means, for each Lender, the obligation of
such Lender to make Revolving Loans not exceeding the amount set forth on Annex
I to this Agreement opposite its name thereon under the heading "Revolving Loan
Commitment" or the signature page of the assignment and acceptance by which it
became a Lender as such amount may be modified from time to time pursuant to the
terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"Revolving Loan Replacement Lender" is defined in Section 2.6(b)
hereof.
"Revolving Loan Termination Date" means June 25, 2006; provided that
the Revolving Loan Termination Date may be extended pursuant to Section 2.6(b).
"Sale and Leaseback Transaction" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (a) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (b) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Security Agreements" means one or more security agreements, each in
form and substance satisfactory to the Administrative Agent, executed and
delivered by the Company and its Domestic Subsidiaries pursuant to or in
connection with transactions contemplated by this Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Single Employer Plan" means a Benefit Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Solvent" means, when used with respect to any Person, that at the time
of determination:
(a) the fair value of its assets (both at fair valuation and at present
fair saleable value) is equal to or in excess of the total amount of
its liabilities, including, without limitation, contingent liabilities;
and
(b) it is then able and expects to be able to pay its debts as they mature;
and
(c) it has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"Subordination Agreement" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Subsidiary of the Company which may now or in the future have any claim against
any Loan Party and each other Subsidiary of the Company as required pursuant to
Section 7.2(k) in favor of the Administrative Agent for the benefit of itself
and the Holders of Obligations, in substantially the form of Exhibit G attached
hereto, as the same may be amended, restated, supplemented or otherwise modified
from time to time.
"Subsidiary" of a Person means (a) any corporation more than fifty
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (b) any partnership, association, limited liability company,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" mean a Subsidiary of the Company.
"Subsidiary Borrower" means each Subsidiary of the Company (whether now
existing or hereafter formed) duly designated by the Company pursuant to Section
2.21 to request Advances hereunder, which Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 2.21 and
such other documents as may be required pursuant to this Agreement, in each case
together with its respective successors and assigns, including a
debtor-in-possession on behalf of such Subsidiary Borrower.
"Swing Line Bank" means BNS and its successors and assigns.
"Swing Line Commitment" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $10,000,000 at any one
time outstanding.
"Swing Line Loan" means a Loan made to the Company by the Swing Line
Bank pursuant to Section 2.3 hereof.
"Taxes" is defined in Section 2.15(e)(i) hereof.
"Term Loan" and "Term Loans" are defined in clause (a) of Section 2.2.
"Term Loan Commitment" means, for each Lender, (a) prior to the making
of the Term Loans, the amount set forth on Annex I to this Agreement opposite
its name thereon under the heading "Term Loan Commitment" and (b) after the
making of the Term Loans, the outstanding principal balance of its Term Loan.
"Term Loan Maturity Date" means June 25, 2007.
"Termination Event" means (a) a Reportable Event with respect to any
Benefit Plan; (b) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (c) the
imposition of an obligation on the Company or any member of the Controlled Group
under Section 4041 of ERISA to provide affected parties written notice of intent
to terminate a Benefit Plan in a distress termination described in Section
4041(c) of ERISA; (d) the institution by the PBGC or any similar foreign
governmental authority of proceedings to terminate a Benefit Plan or Foreign
Pension Plan; (e) any event or condition which constitutes grounds under Section
4042 of ERISA which are reasonably likely to lead to the termination of, or the
appointment of a trustee to administer, any Benefit Plan; (f) that a foreign
governmental authority shall appoint or institute proceedings to appoint a
trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (g) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"Total Indebtedness" means, without duplication, (a) all Indebtedness
for borrowed money of the Company and its Subsidiaries, on a consolidated basis,
plus, without duplication, (b) (i) the face amount of all outstanding letters of
credit (including Letters of Credit) in respect of which the Company or any
Subsidiary has any actual or contingent reimbursement obligation, plus (ii) the
principal amount of all Indebtedness of any Person in respect of which the
Company or any Subsidiary has a Contingent Obligation, plus (iii) Indebtedness
of the Company and its Subsidiaries evidenced by notes, acceptances or similar
instruments, plus (iv) Capitalized Lease Obligations of the Company and its
Subsidiaries, plus (v) the implied debt component of synthetic leases of which
the Company or any of its Subsidiaries is lessee, plus (vi) Hedging Obligations
of the Company and its subsidiaries.
"Transferee" is defined in Section 14.5 hereof.
"Type" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"Unfunded Liabilities" means (a) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date for which actuarial valuations have been
completed and certified to the Company, all as determined under FAS 87 using the
methods and assumptions used by the Company for financial accounting purposes,
and (b) in the case of Multiemployer Plans, the withdrawal liability that would
be incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled, in each case, other than director qualifying shares.
Unless the context otherwise requires, "Wholly-Owned Subsidiary" means a
wholly-owned subsidiary of the Company.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2. References. Any references to Subsidiaries of the Company set forth
herein shall not in any way be construed as consent by the Administrative Agent
or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
ARTICLE II
LOAN FACILITIES
On the terms and subject to the conditions of this Agreement, the
Lenders severally agree to make the Loans as set forth below.
2.1 Revolving Loans.
(a) Upon the satisfaction of the conditions precedent set forth in Sections
5.1, 5.2 and 5.3, as applicable, from and including the Closing Date and prior
to the Revolving Loan Termination Date, each Lender severally and not jointly
agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans in Dollars to the Borrowers from time to time, in an amount not
to exceed such Lender's Pro Rata Revolving Share of Revolving Credit
Availability at such time (each individually, a "Revolving Loan" and,
collectively, the "Revolving Loans"), provided that at no time shall the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment.
Subject to the terms of this Agreement, the Borrowers may borrow, repay and
reborrow Revolving Loans at any time prior to the applicable Revolving Loan
Termination Date. Revolving Loans shall be, at the option of the applicable
Borrower, selected in accordance with Section 2.10, and shall be either Floating
Rate Loans or Eurocurrency Rate Loans. On the Revolving Loan Termination Date,
each Borrower shall repay in full the outstanding principal balance of Revolving
Loans made to it. The Revolving Loans shall be made by each Lender ratably in
proportion to such Lender's respective Pro Rata Revolving Share.
(b) Making of Revolving Loans. Promptly after receipt of the Borrowing/
Conversion/Continuation Notice under Section 2.8 in respect of Revolving Loans,
the Administrative Agent shall notify each Lender with a Revolving Loan
Commitment, of the requested Revolving Loan. Each Lender with a Revolving Loan
Commitment shall make available its Revolving Loan in accordance with the terms
of Section 2.7. The Administrative Agent will promptly make the funds so
received from the Lenders available to the applicable Borrower at the
Administrative Agent's office in New York, New York on the applicable Borrowing
Date and shall disburse such proceeds in accordance with the applicable
Borrower's disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to deposit
the amount described above with the Administrative Agent on the applicable
Borrowing Date shall not relieve any other Lender of its obligations hereunder
to make its Revolving Loan on such Borrowing Date.
2.2 Term Loans.
(a) Upon the satisfaction of the conditions precedent set forth in Section
5.1 and 5.3, as applicable, each Lender severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to make a single term loan to
the Company on the Closing Date, in Dollars, in an amount not to exceed such
Lender's Term Loan Commitment (each individually, a "Term Loan" and,
collectively, the "Term Loans"). Amounts borrowed as Term Loans which are repaid
or prepaid by the Company may not be reborrowed. The Company shall repay all
outstanding principal and all accrued but unpaid interest on the Term Loan
Maturity Date.
(b) Term Loan Amortization. The Term Loans shall be payable in quarterly
installments in the amounts and on the dates as follows:
PAYMENT DATE AMOUNT
------------ ------
September 30, 2003 $3,125,000
December 31, 2003 $3,125,000
March 31, 2004 $3,125,000
June 30, 2004 $3,125,000
September 30, 2004 $3,125,000
December 31, 2004 $3,125,000
March 31, 2005 $3,125,000
June 30, 2005 $3,125,000
September 30, 2005 $3,125,000
December 31, 2005 $3,125,000
March 31, 2006 $3,125,000
June 30, 2006 $3,125,000
September 30, 2006 $3,125,000
December 31, 2006 $3,125,000
March 31, 2007 $3,125,000
Term Loan Maturity
Date $3,125,000
or such other
amount as shall
then be
outstanding.
2.3 Swing Line Loans.
(a) Amount of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 5.1, 5.2 and 5.3, as applicable, from and
including the Closing Date and prior to the Revolving Loan Termination Date, the
Swing Line Bank agrees, on the terms and conditions set forth in this Agreement,
to make swing line loans (each, individually, a "Swing Line Loan" and
collectively, the "Swing Line Loans") to the Company from time to time in
Dollars; provided that at no time shall the aggregate outstanding principal
amount of all Swing Line Loans exceed the Swing Line Commitment; provided,
further, that at no time shall the Revolving Credit Obligations exceed the
Aggregate Revolving Loan Commitment.
(b) Borrowing/Conversion/Continuation Notice; Interest Rate. The Company
and/or the applicable Borrower shall deliver to the Administrative Agent and the
Swing Line Bank (if the Swing Line Bank is not BNS) a
Borrowing/Conversion/Continuation Notice, signed by it, not later than 12:00
noon (New York time) on the Borrowing Date of each Swing Line Loan (or at such
later time as may be acceptable to the Swing Line Bank in its sole discretion),
specifying (i) the applicable Borrowing Date (which date shall be a Business Day
and which may be the same date as the date the Borrowing/Conversion/Continuation
Notice is given, (ii) the aggregate amount of the requested Swing Line Loan, the
amount of which shall be not less than $1,000,000 and (iii) payment instructions
for the disbursement of such Loans. The Swing Line Loans shall bear interest at
the Floating Rate.
(c) Making of Swing Line Loans. Not later than 3:00 p.m. (New York time) on
the applicable Borrowing Date, the Swing Line Bank shall make available its
Swing Line Loan, in funds immediately available in New York, New York to the
Administrative Agent at its address specified pursuant to Article XV. The
Administrative Agent will promptly make the funds so received from the Swing
Line Bank available to the Company on the Borrowing Date at the Administrative
Agent's aforesaid address.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the Company on or before the seventh (7th) Business Day after the
Borrowing Date for such Swing Line Loan. The Company may at any time pay,
without penalty or premium, all outstanding Swing Line Loans. In addition, the
Administrative Agent (i) may at any time in its sole discretion with respect to
any outstanding Swing Line Loan, (ii) shall at any time upon the request of the
Swing Line Bank in its sole discretion, or (iii) shall on the seventh (7th)
Business Day after the Borrowing Date of any Swing Line Loan, require (by giving
notice thereof to each Lender with a Revolving Loan Commitment not later than
10:00 a.m. (New York time) one Business Day before the date of such Loan) each
Lender with a Revolving Loan Commitment (including the Swing Line Bank) to make
a Revolving Loan in the amount of such Lender's Pro Rata Revolving Share of such
Swing Line Loan, for the purpose of repaying all or any outstanding portion of
such Swing Line Loan. Not later than 2:00 p.m. (New York time) on the date of
any notice received pursuant to this Section 2.3(d), each Lender shall make
available its required Revolving Loan, in funds immediately available in New
York to the Administrative Agent at its address specified pursuant to Article
XV. Revolving Loans made pursuant to this Section 2.3(d) shall initially be
Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurocurrency Rate Loans in the manner provided in Section 2.10
and subject to the other conditions and limitations therein set forth and set
forth in this Article II. Unless a Lender shall have notified the Swing Line
Bank, prior to its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 5.1, 5.2 and 5.3, as applicable, had not then
been satisfied, such Lender's obligation to make Revolving Loans pursuant to
this Section 2.3(d) to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Administrative Agent, the Swing Line Bank or any other Person, (b) the failure
to satisfy any condition set forth herein or the occurrence or continuance of a
Default or Unmatured Default, (c) any adverse change in the condition (financial
or otherwise) of the Company, or (d) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.3(d), the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.3(d) or may not make any Revolving Loan required
by this Section 2.3, such Lender shall be deemed, at the option of the
Administrative Agent or the Swing Line Bank, to have unconditionally and
irrevocably purchased from the Swing Line Bank, without recourse or warranty, an
undivided interest and participation in the Swing Line Loan in the amount of
such Revolving Loan, and such interest and participation shall be paid by such
Lender upon demand by the Swing Line Bank together with interest thereon at the
Federal Funds Effective Rate for each day during the period commencing on the
date of demand and ending on the date such amount is received. On the Revolving
Loan Termination Date, the Company shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.4 Rate Options for all Advances; Maximum Interest Periods. The Revolving
Loans and Term Loans may be Floating Rate Advances or Eurocurrency Rate
Advances, or a combination thereof, selected by the Company or the applicable
Borrower in accordance with Section 2.9. The Company or the applicable Borrower
may select, in accordance with Section 2.9, Rate Options and Interest Periods
applicable to portions of the Revolving Loans and Term Loans; provided that
there shall be no more than twelve (12) Interest Periods in effect with respect
to all of the Loans at any time.
2.5 Optional Payments; Mandatory Prepayments.
(a) Optional Payments. The Company or the applicable Borrower may from time
to time and at any time upon at least one (1) Business Day's prior written
notice repay or prepay without penalty or premium all or any part of outstanding
Floating Rate Advances in an aggregate minimum amount of $5,000,000 and in
integral multiples of $1,000,000 in excess thereof. Eurocurrency Rate Advances
may be voluntarily repaid or prepaid prior to the last day of the applicable
Interest Period, subject to the indemnification provisions contained in Section
4.4, provided that the applicable Borrower may not so prepay Eurocurrency Rate
Advances unless it shall have provided at least four (4) Business Days' prior
written notice to the Administrative Agent of such prepayment. All Advances
repaid or prepaid pursuant to this Section shall be paid in Dollars.
(b) Mandatory Prepayments of Loans.
(i) If at any time and for any reason the Revolving Credit
Obligations are greater than the Aggregate Revolving Loan
Commitment, the Company shall immediately make or cause to be
made a mandatory prepayment of the Revolving Credit Obligations
in an amount equal to such excess.
(ii) The Company shall make all mandatory prepayments required under
Section 2.6.
(iii)So long as any Term Loans are outstanding, the Company shall
prepay the Term Loans in an amount equal to 100% of (A) the Net
Proceeds realized upon any Asset Sale made by the Company or its
Subsidiaries to the extent Net Proceeds of all Asset Sales in any
fiscal year exceeds $2,000,000, (B) any insurance proceeds
received by the Company or its Subsidiaries in respect of any
casualty involving such Person's property and (C) any payments
received by the Company or its Subsidiaries from a condemnation
of such Person's property, to the extent any of the foregoing
amounts are not applied (or committed to be applied) within one
hundred and eighty (180) days after the consummation or receipt
thereof, as applicable, to the purchase of similar assets that
are not classified as current assets under Agreement Accounting
Principles and are used or useful in the business of the Company
or its Subsidiaries or to the repair or restoration of the
Company's or its Subsidiaries' property; provided that the
Company shall not be required to make any prepayments pursuant to
this Section 2.5(b)(iii) if (x) no Default or Unmatured Default
exists at such time and (y) the Leverage Ratio of the Company and
its Subsidiaries, as reflected in the compliance certificate
delivered pursuant to Section 7.1(a)(iii), is less than 2.25:1 as
of the last day of the most recent fiscal quarter prior to the
receipt of such proceeds. If the Company or the applicable
Subsidiary does intend to so reinvest any such amounts, the
Company shall give notice of such intent (and the amount intended
to be reinvested) to the Administrative Agent upon receipt of
such proceeds. Pending such reinvestment, the Company shall use
such amounts to pay down the principal amount of the Revolving
Loans to the extent thereof (but without a permanent reduction of
the Revolving Loan Commitments). If the Company or the applicable
Subsidiary does not intend to so reinvest such proceeds or if the
period set forth in the immediately preceding sentence expires
without the Company or such Subsidiary having reinvested such
proceeds, the Company shall prepay the Term Loans (within one (1)
Business Day of the expiration of said one hundred and eighty
(180) day period) in an amount equal to such proceeds after
giving effect to all reinvestments permitted by this subsection.
(iv) So long as any Term Loans are outstanding, if the Company shall
issue new Equity Interests or receive any capital contributions,
the Company shall promptly notify the Administrative Agent of the
estimated Net Proceeds of such issuance or of such capital
contribution to be received in respect thereof. Promptly upon,
and in no event later than one (1) Business Day after, receipt by
the Company of Net Proceeds of such issuance or of such capital
contribution, the Company shall prepay the Term Loans in an
amount equal to 100% of such Net Proceeds or capital
contribution; provided that the Company shall only be required to
prepay the Term Loans to the extent that, on a pro forma basis
after giving effect to such prepayment, the Leverage Ratio of the
Company and its Subsidiaries, as reflected in the compliance
certificate delivered pursuant to Section 7.1(a)(iii), is greater
than 2.50:1 as of the last day of the most recent fiscal quarter
prior to the date of the receipt of such Net Proceeds.
Notwithstanding the foregoing, in no event shall the Company's
obligation to prepay the Term Loans pursuant to an issuance under
this Section 2.5(b)(iv) exceed an amount equal to the Net
Proceeds of such issuance.
(v) So long as any Term Loans are outstanding, the Company shall
immediately prepay the Term Loans in an amount equal to 100% of
the Net Proceeds of any Indebtedness issued by the Company or any
Subsidiary (excluding Indebtedness permitted pursuant to Section
7.3(c)).
(vi) All of the mandatory prepayments made under Section
2.5(b)(i)-(ii) shall be applied to the Revolving Credit
Obligations, first to Floating Rate Loans and to any Eurocurrency
Rate Loans maturing on such date and then to subsequently
maturing Eurocurrency Rate Loans in order of maturity.
(vii)Any prepayments pursuant to Sections 2.5(b)(iii)-(v) shall be
applied to the outstanding principal balance of the Term Loans,
first to Floating Rate Loans and to any Eurocurrency Rate Loans
maturing on such date and then to subsequently maturing
Eurocurrency Rate Loans, and applied against all remaining
scheduled principal installments in inverse order of maturity
and, after the repayment of all Term Loans, to the repayment of
the outstanding principal amount under, and a reduction in, the
Revolving Loan Commitment.
2.6 Reductions and Adjustments of Revolving Loan Commitments and Extensions
of Revolving Loan Termination Date.
(a) The Company may permanently reduce (i) the Aggregate Revolving Loan
Commitment in whole, or in part ratably among the Lenders with a Revolving Loan
Commitment, in an aggregate minimum amount of $5,000,000 and in integral
multiples of $1,000,000 in excess of that amount (unless the Aggregate Revolving
Loan Commitment is reduced in whole) or (ii) the Swing Line Commitments in whole
or in part in amounts of $1,000,000 upon at least three (3) Business Day's prior
written notice to the Administrative Agent and the Swing Line Bank, which notice
shall specify the amount of any such reduction; provided that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations or below the
aggregate amount of the Swing Line Commitment. All accrued commitment fees shall
be payable on the effective date of any termination of all or any part the
obligations of the Lenders to make Loans hereunder.
(b) The Revolving Loan Termination Date may be extended for two successive
one year periods upon the written request of the Company with the express
written consent of each Lender with a Revolving Loan Commitment. Not later than
the date that is 90 days prior to the then-effective Revolving Loan Termination
Date, the Company shall, at its option, in a written notice to the
Administrative Agent request (an "Extension Request") that the Revolving Loan
Termination Date be extended for a period of one year. The Administrative Agent
shall promptly inform the Lenders of such Extension Request. Each Lender with a
Revolving Loan Commitment may consent to such Extension Request by delivering to
the Administrative Agent its express written consent thereto no later than 60
days prior to the then-effective Revolving Loan Termination Date. Each Borrower
acknowledges that each Lender's decision to consent to or reject an Extension
Request shall be a new credit determination by each such Lender and as such each
Lender may withhold its consent, or condition its consent upon additional or
different terms, in each case in its sole and absolute discretion. If (i) any
Lender notifies the Administrative Agent in writing on or before the 60th day
prior to the then-effective Revolving Loan Termination Date that it will not
consent to such Extension Request or (ii) all of the Lenders with a Revolving
Loan Commitment have not in writing expressly consented to any such Extension
Request on or before the 60th day prior to the then-effective Revolving Loan
Termination Date, then the Administrative Agent shall immediately notify the
Company and the Company, at its option, may (x) withdraw such Extension Request
at any time prior to the date that is 10 days prior to the then-effective
Revolving Loan Termination Date, or (y) replace each Lender which has not agreed
to such Extension Request (a "Nonextending Lender") with another commercial
lending institution reasonably satisfactory to the Administrative Agent (a
"Revolving Loan Replacement Lender") by giving notice (not later than the date
20 days prior to the then-effective Revolving Loan Termination Date) of the name
of such Revolving Loan Replacement Lender to the Administrative Agent; provided
unless the Lenders with a Revolving Loan Commitment (including Revolving Loan
Replacement Lenders) have agreed to such Extension Request on or before the 20th
day prior to the then-effective Revolving Loan Termination Date, such Extension
Request shall be automatically withdrawn. Unless the Administrative Agent shall
object to the identity of such proposed Revolving Loan Replacement Lender prior
to the date 10 days prior to the then-effective Revolving Loan Termination Date,
upon notice from the Administrative Agent, each Nonextending Lender shall
promptly (but in no event later than the then-effective Revolving Loan
Termination Date) assign all of its interests hereunder to such Revolving Loan
Replacement Lender in consideration for an amount equal to such Nonextending
Lender's Pro Rata Share of the outstanding principal amount of the Loans and
Reimbursement Obligations, plus accrued but unpaid interest thereon, plus
accrued but unpaid fees and all other amounts owing to such Nonextending Lender
under the Loan Documents, all in accordance with the provisions of Section 14.3.
If the Lenders agree to such Extension Request in accordance with this Section,
the Revolving Loan Termination Date shall be extended in accordance with such
Extension Request; provided that with respect to each Nonextending Lender that
has not been replaced by the Company in accordance with the terms of this
Section, the Commitment of each such Nonextending Lender shall terminate on the
original Revolving Loan Termination Date (as such date may have been previously
extended), and the Borrowers shall pay to the Administrative Agent for the
account of each such Nonextending Lender on or before the then current Revolving
Loan Termination Date, such Nonextending Lender's Pro Rata Share of the
principal of and interest on all outstanding Loans and Reimbursement
Obligations, plus accrued but unpaid fees and all other amounts owing to such
Nonextending Lender under the Loan Documents, and the Aggregate Revolving Loan
Commitment shall be irrevocably reduced by an amount equal to the sum of the
Revolving Loan Commitment of all such Nonextending Lenders. If all Lenders
consent to any such Extension Request (or if all Nonextending Lenders are
replaced in accordance with this Section), then as of 5:00 p.m. New York time on
the original Revolving Loan Termination Date (as such date may have been
previously extended), such Revolving Loan Termination Date shall be deemed to
have been extended for, and shall be the date, one year after the then-effective
Revolving Loan Termination Date (as such date may have been previously
extended).
2.7 Method of Borrowing. Not later than 2:00 p.m. (New York time) on each
Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds to the Administrative Agent at its address specified
on its signature page hereto or as otherwise specified pursuant to Article XV,
unless the Administrative Agent has notified the Lenders that such Loan is to be
made available to the applicable Borrower at the Administrative Agent's
Eurocurrency Payment office, in which case each Lender shall make available its
Loan or Loans, in funds immediately available to the Administrative Agent at its
Eurocurrency Payment Office, not later than 12:00 noon (local time in the city
of the Administrative Agent's Eurocurrency Payment Office). The Administrative
Agent will promptly make the funds so received from the Lenders available to the
applicable Borrower at the Administrative Agent's aforesaid address or
Eurocurrency Payment Office, as applicable.
2.8 Method of Selecting Types and Interest Periods for Advances. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period applicable to each such
Eurocurrency Rate Advance from time to time. The applicable Borrower shall give
the Administrative Agent irrevocable notice in substantially the form of Exhibit
A hereto (a "Borrowing/Conversion/Continuation Notice") not later than 11:00
a.m. (New York time) (a) one (1) Business Day before the Borrowing Date of each
Floating Rate Advance, and (b) three (3) Business Days before the Borrowing Date
for each Eurocurrency Rate Advance, specifying: (i) the Borrowing Date (which
shall be a Business Day) of such Advance; (ii) the aggregate amount of such
Advance; (iii) the Type of Advance selected; and (iv) in the case of each
Eurocurrency Rate Loan, the Interest Period. Each Floating Rate Advance and all
Obligations other than Loans shall bear interest from and including the date of
the making of such Advance in the case of Loans, and the date such Obligation is
due and owing in the case of such other Obligations, to (but not including) the
date of repayment thereof at the Floating Rate, changing when and as such
Floating Rate changes. Changes in the rate of interest on that portion of any
Advance maintained as a Floating Rate Loan will take effect simultaneously with
each change in the Alternate Base Rate. Each Eurocurrency Rate Advance shall
bear interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurocurrency Rate Advance and
shall change as and when the Applicable Eurocurrency Margin changes.
2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance to
repay a Swing Line Loan or Reimbursement Obligation) shall be a minimum amount
of $5,000,000 and in multiples of $1,000,000 if in excess thereof; provided that
any Floating Rate Advance may be in the amount of the unused Aggregate Revolving
Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(a) Right to Convert. The applicable Borrower may elect from time to time,
subject to the provisions of Section 2.4 and this Section 2.10, to convert all
or any part of a Loan (other than a Swing Line Loan) of any Type into any other
Type or Types of Loans (other than a Swing Line Loan); provided that any
conversion of any Eurocurrency Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(b) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue
as Eurocurrency Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans shall be automatically
converted into Floating Rate Loans unless the Company shall have given the
Administrative Agent notice in accordance with Section 2.10(d) requesting that,
at the end of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan.
(c) No Conversion Post-Default or Post-Unmatured Default. Notwithstanding
anything to the contrary contained in Section 2.10(a) or Section 2.10(b), no
Loan may be converted into or continued as a Eurocurrency Rate Loan (except with
the consent of the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing.
(d) Borrowing/Conversion/Continuation Notice. The Company shall give the
Administrative Agent a Borrowing/Conversion/Continuation Notice with respect to
each conversion of a Floating Rate Loan into a Eurocurrency Rate Loan or
continuation of a Eurocurrency Rate Loan not later than 11:00 a.m. (New York
time) three (3) Business Days prior to the date of the requested conversion or
continuation, with respect to any Loan to be converted or continued as a
Eurocurrency Rate Loan in Dollars.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, each outstanding Loan shall bear interest at a rate equal to the rate
otherwise applicable thereto (giving effect to the provisions of Section
2.15(d)(ii)) plus 2% per annum.
2.12 Method of Payment. All payments of principal, interest, fees,
commissions, and other amounts payable hereunder shall be made, without setoff,
deduction or counterclaim in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article XV
with respect to Advances or other Obligations, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Company, by 1:00 p.m. (New York time) on the date
when due and shall be applied ratably among the applicable Lenders with respect
to any principal and interest due in connection with Loans. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender. The Company
authorizes the Administrative Agent to charge the account of the Company
maintained with BNS for each payment of principal, interest, fees, commissions
and L/C Obligations as it becomes due hereunder. Each reference to the
Administrative Agent in this Section 2.12 shall also be deemed to refer, and
shall apply equally, to each Issuing Bank, in the case of payments required to
be made by the Company to any Issuing Bank pursuant to Article III.
2.13 Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "Loan Account") evidencing the indebtedness of the
Borrowers owing to such Lender hereunder from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to Section
14.3(c) shall reflect (i) the date and the amount of each Loan made hereunder,
the Type thereof and the Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrowers to each Lender hereunder, (iii) the effective date and amount
of each Assignment Agreement delivered to and accepted by it and the parties
thereto pursuant to Section 14.3, (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof, and (v) all other appropriate debits and credits as provided in
this Agreement, including, without limitation, all fees, charges, expenses and
interest.
(c) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to subsections (a) or (b) of this Section shall be
presumptively correct for all purposes, absent manifest error; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Obligations in accordance with the terms of this Agreement.
(d) Any Lender may request that the Revolving Loans or the Term Loans made
by it each be evidenced by a promissory note in substantially the forms of
Exhibit H-1, or Exhibit H-2, respectively, to evidence such Lender's Revolving
Loans or Term Loans, as applicable. In such event, the applicable Borrower shall
promptly prepare, execute and deliver to such Lender a promissory note for such
Loans payable to the order of such Lender and in a form approved by the
Administrative Agent and consistent with the terms of this Agreement.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 14.3) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
2.14 Telephonic Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Loans, effect selections of Types of Advances and
to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf
of the applicable Borrower. The Borrowers agree to deliver promptly to the
Administrative Agent a written confirmation, signed by an Authorized Officer. If
the written confirmation differs in any material respect from the action taken
by the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest
and Fee Basis; Taxes; Loan and Control Accounts.
(a) Promise to Pay. Each Borrower unconditionally promises to pay when due
the principal amount of each Loan and all other Obligations incurred by it, and
to pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
(b) Interest Payment Dates. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or otherwise). Interest
accrued on each Eurocurrency Rate Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurocurrency Rate Loan is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurocurrency Rate Loan having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval during
such Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on the last day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(c) Fees.
(i) The Company shall pay to the Administrative Agent for the account
of the Lenders in accordance with their Pro Rata Revolving
Shares, from and after the date of this Agreement until the
Revolving Loan Termination Date, a non-refundable commitment fee
accruing at the rate of the then Applicable Commitment Fee
Percentage on the unutilized portion of such Lender's Revolving
Loan Commitment. The commitment fee shall be payable in arrears
on each Payment Date hereafter, and, in addition, on any date on
which the Revolving Loan Commitment shall be terminated in whole
or, with respect to such terminated amount, in part.
(ii) The Company agrees to pay to the Administrative Agent, for the
sole account of the Administrative Agent (unless otherwise agreed
between the Administrative Agent and any Lender) the fees set
forth in the Fee Letter, payable at the times and in the amounts
set forth therein.
(d) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage.
(i) Interest on all Eurocurrency Rate Loans and fees shall be
calculated for actual days elapsed on the basis of a 360-day
year. Interest on all Floating Rate Loans shall be calculated for
actual days elapsed on the basis of a 365-, or when appropriate
366-, day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the
amount paid if payment is received prior to 3:00 p.m. (local
time) at the place of payment. If any payment of principal of or
interest on a Loan or any payment of any other Obligations shall
become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the
case of a principal payment, such extension of time shall be
included in computing interest, fees and commissions in
connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be
determined from time to time on the basis of the then applicable
Leverage Ratio in accordance with the following table (provided
that the Applicable Margin for all Loans shall be no less than
0.75% (for Floating Rate Loans) and 1.75% (for Eurocurrency Rate
Loans) for the period commencing on the Closing Date and ending
on the date that the quarterly compliance certificate is
delivered for the second full fiscal quarter following the
Closing Date):
APPLICABLE FLOATING APPLICABLE APPLICABLE COMMITMENT
LEVERAGE RATIO RATE MARGIN EUROCURRENCY FEE PERCENTAGE
MARGIN
Less than 1.50 0.50% 1.50% 0.375%
1.50 or greater, 0.75% 1.75% 0.375%
but less than 2.00
2.00 or greater, 1.00% 2.00% 0.500%
but less than 2.25
2.25 or greater, 1.50% 2.50% 0.500%
but less than 2.50
2.50 or greater, 1.75% 2.75% 0.500%
but less than 2.75
2.75 or greater 2.00% 3.00% 0.500%
Upon receipt of the financial statements to be delivered by the Company in
accordance with Section 7.1(a)(i) or (ii), as applicable, for any fiscal quarter
or, if earlier, upon receipt of the Company's audited financial statements for
any fiscal year, the Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be adjusted, such
adjustment being effective five (5) Business Days following the Administrative
Agent's receipt of such financial statements and the compliance certificate
required to be delivered in connection therewith pursuant to Section
7.1(a)(iii); provided that if the Company shall not have timely delivered its
financial statements in accordance with Section 7.1(a)(i) or (ii), as
applicable, then commencing on the date upon which such financial statements
should have been delivered and continuing until such financial statements are
actually delivered, it shall be assumed for purposes of determining the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and Applicable
Commitment Fee Percentage that the Leverage Ratio was greater than 2.75 to 1.0.
Notwithstanding the foregoing, for so long as any Default shall have occurred
and be continuing, the Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be the highest Applicable
Floating Rate Margin, Applicable Eurocurrency Margin and Applicable Commitment
Fee Margin set forth in the foregoing table.
(e) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether in
respect of principal, interest, fees or otherwise) shall be made
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings or any interest, penalties and liabilities with
respect thereto but excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or
measured by such Lender's or the Administrative Agent's, as the
case may be, net income by the United States of America or any
Governmental Authority of the jurisdiction under the laws of
which such Lender or the Administrative Agent, as the case may
be, is organized (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to
this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "Taxes"). If any Borrower shall be required by law
to deduct or withhold any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender
or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions or withholdings (including deductions applicable to
additional sums payable under this Section 2.15(e)) such Lender
or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) the applicable
Borrower shall make such deductions or withholdings, and (iii)
the applicable Borrower shall pay the full amount deducted or
withheld to the relevant taxation authority or other authority in
accordance with applicable law.
(ii) In addition, the Borrowers agree to pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or
from the execution, delivery or registration of, or otherwise
with respect to, this Agreement, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit
(hereinafter referred to as "Other Taxes").
(iii)The Company and each Subsidiary Borrower shall indemnify each
Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any Governmental Authority on amounts
payable under this Section 2.15(e)) paid by such Lender or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be
made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to
any Lender or the Administrative Agent under this Section 2.15(e)
submitted to the applicable Borrower and the Administrative Agent
(if a Lender is so submitting) by such Lender or the
Administrative Agent shall show in reasonable detail the amount
payable and the calculations used to determine such amount and
shall, absent manifest error, be final, conclusive and binding
upon all parties hereto.
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by the Company or any Subsidiary Borrower, the
Company shall furnish to the Administrative Agent the original or
a certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Company and the Subsidiary Borrowers hereunder, the agreements
and obligations of the Borrowers contained in this Section
2.15(e) shall survive the payment in full of all Obligations, the
termination of the Letters of Credit and the termination of this
Agreement.
(vi) Each Lender (including any Replacement Lender or Purchaser) that
is not created or organized under the laws of the United States
of America or a political subdivision thereof (each a "Non-U.S.
Lender") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on
which such Lender becomes a Lender pursuant to Section 14.3
hereof (and from time to time thereafter upon the request of the
Company or the Administrative Agent, but only for so long as such
Non-U.S. Lender is legally entitled to do so), either (A) two (2)
duly completed copies of either (x) IRS Form W-8BEN, or (y) IRS
Form W-8ECI, or in either case an applicable successor form or
(B) in the case of a Non-U.S. Lender that is not legally entitled
to deliver either form listed in clause (vi)(A)(I), (I) a
certificate of a duly authorized officer of such Non-U.S. Lender
to the effect that such Non-U.S. Lender is not (x) a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (y) a "10
percent shareholder" of the Company or any Subsidiary Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (z) a
controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code
(such certificate, an "Exemption Certificate") and (II) two (2)
duly completed copies of IRS Form W-8BEN or applicable successor
form. Each such Lender further agrees to deliver to the Company
and the Administrative Agent from time to time a true and
accurate certificate executed in duplicate by a duly authorized
officer of such Lender in a form satisfactory to the Company and
the Administrative Agent, before or promptly upon the occurrence
of any event requiring a change in the most recent certificate
previously delivered by it to the Company and the Administrative
Agent pursuant to this Section 2.15(e)(vi). Further, each Lender
which delivers a form or certificate pursuant to this clause (vi)
covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Agreement is still
in effect, another such certificate and/or two (2) accurate and
complete original newly-signed copies of the applicable form (or
any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably required by
any Borrower or the Administrative Agent to establish any exemption from or
reduction of any Taxes or Other Taxes required to be deducted or withheld and
which may be obtained without undue expense to such Lender. Notwithstanding any
other provision of this Section 2.15(e), no Borrower shall be obligated to gross
up any payments to any Lender pursuant to Section 2.15(e)(i), or to indemnify
any Lender pursuant to Section 2.15(e)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure of such
Lender to deliver to the Company the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to Section 2.15(e)(vi), or
(y) such form or forms and/or Exemption Certificate not establishing a complete
exemption from U.S. federal withholding tax or the information or certifications
made therein by the Lender being untrue or inaccurate on the date delivered in
any material respect; provided that the applicable Borrower shall be obligated
to gross up any payments to any such Lender pursuant to Section 2.15(e)(i), and
to indemnify any such Lender pursuant to Section 2.15(e)(iii), in respect of
United States federal withholding taxes if (x) any such failure to deliver a
form or forms or an Exemption Certificate or the failure of such form or forms
or exemption certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable law or
any interpretation of any of the foregoing occurring after the date hereof,
which change rendered such Lender no longer legally entitled to deliver such
form or forms or Exemption Certificate or otherwise ineligible for a complete
exemption from U.S. federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate untrue or
inaccurate in any material respect, or (y) the obligation to gross up payments
to any such Lender pursuant to Section 2.15(e)(i), or to indemnify any such
Lender pursuant to Section 2.15(e)(iii), is with respect to a Purchaser that
becomes a Purchaser as a result of an assignment made at the request of the
Company.
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing/Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Administrative Agent
will notify the Company or applicable Borrower and each Lender of the interest
rate applicable to each Eurocurrency Rate Loan promptly upon determination of
such interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans or Letters of
Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless a Borrower or
a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (a)
in the case of a Lender, the proceeds of a Loan or (b) in the case of any
Borrower, a payment of principal, interest fees or other Obligations to the
Administrative Agent for the account of any of the Lenders, that it does not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the applicable Borrower, as the
case may be, has not in fact made such payment to the Administrative Agent, the
recipient of such payment shall, on demand by the Administrative Agent, repay to
the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such day
or (ii) in the case of payment by a Borrower, the interest rate applicable to
the relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the date
(the "Facility Termination Date") upon which (a) all of the Obligations (other
than contingent indemnity obligations) shall have been fully and indefeasibly
paid and satisfied, (b) all commitments of the Lenders to extend credit
hereunder have expired or have been terminated and (c) all of the Letters of
Credit shall have expired, been canceled or terminated. Notwithstanding the
occurrence of the Facility Termination Date, obligations of the Borrowers and
other terms hereof which by the terms of this Agreement survive termination
shall survive the Facility Termination Date.
2.20 Replacement of Certain Lenders. In the event a Lender ("Affected
Lender") shall have: (a) failed to fund its Pro Rata Revolving Share of any
Advance requested by the applicable Borrower, which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured, (b)
requested compensation from any Borrower under Sections 2.15(e), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, or (c) delivered a
notice pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Company for reasons not generally applicable to
the other Lenders, then, in any such case, after the engagement of one or more
"Replacement Lenders" (as defined below) by the Company and/or the
Administrative Agent, the Company or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in the
case of a demand by the Company and a copy to the Company in the case of a
demand by the Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall use commercially reasonable efforts to assign pursuant to
one or more duly executed Assignment Agreements five (5) Business Days after the
date of such demand, to one or more financial institutions that comply with the
provisions of Section 14.3(a) which the Company or the Administrative Agent, as
the case may be, shall have engaged for such purpose (each, a "Replacement
Lender"), all of such Affected Lender's rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Revolving Loan Commitment, all Loans owing to it, all of its participation
interests in existing Letters of Credit, and its obligation to participate in
additional Letters of Credit hereunder) in accordance with Section 14.3. The
Administrative Agent is authorized to execute one or more of such Assignment
Agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
With respect to such assignment the Affected Lender shall be entitled to
receive, in cash, all amounts due and owing to the Affected Lender hereunder or
under any other Loan Document, including, without limitation, the aggregate
outstanding principal amount of the Loans owed to such Lender, together with
accrued interest thereon through the date of such assignment, amounts payable
under Sections 2.15(e), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.15(c) in the event of any replacement of
any Affected Lender under clause (b) or clause (c) of this Section 2.20;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15(e), 4.1, 4.2, 4.4, and 11.6, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 12.8.
2.21 Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Administrative Agent, add as a party to this
Agreement any Wholly-Owned Subsidiary that is a Domestic Subsidiary to be a
"Subsidiary Borrower" hereunder by the execution and delivery to the
Administrative Agent and the Lenders of (a) a duly completed Assumption Letter
by such Subsidiary, with the written consent of the Company at the foot thereof
and (b) such other guaranty, security and subordinated intercompany indebtedness
documents (and related closing documentation) as required by Section 5.2 or as
otherwise may be reasonably required by the Administrative Agent, such documents
with respect to any additional Subsidiaries to be substantially similar in form
and substance to the Loan Documents executed on or about the Closing Date by or
in respect of the Subsidiaries parties hereto as of the Closing Date. Upon such
execution, delivery and consent such Subsidiary shall for all purposes be a
party hereto as a Subsidiary Borrower as fully as if it had executed and
delivered this Agreement. So long as the principal of and interest on any
Advances made to any Subsidiary Borrower under this Agreement shall have been
paid in full, all Letters of Credit issued for the account of such Subsidiary
Borrower have expired or been returned and terminated and all other obligations
of such Subsidiary Borrower under this Agreement shall have been fully
performed, the Company may, by not less than five (5) Business Days' prior
notice to the Administrative Agent (which shall promptly notify the Lenders
thereof), terminate such Subsidiary Borrower's status as a "Subsidiary Borrower"
hereunder.
2.22 Security. All Obligations of the Borrowers and the Guarantors under
this Agreement and all other Loan Documents shall be secured in accordance with
the Collateral Documents.
ARTICLE III
THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in Dollars in accordance with this
Article III, from time to time during the period, commencing on the Closing Date
and ending on the Business Day prior to the termination of the Aggregate
Revolving Loan Commitment.
3.2 Transitional Provision. Schedule 3.2 contains a schedule of certain
letters of credit issued for the account of the Company and its Subsidiaries
prior to the Closing Date. From and after the Closing Date, such letters of
credit shall be deemed to be Letters of Credit issued pursuant to this Article
III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation to and no
Issuing Bank shall:
(a) issue (or amend) any Letter of Credit if on the date of issuance (or
amendment), before or after giving effect to the Letter of Credit requested
hereunder, (i) the amount of the Revolving Credit Obligations at such time would
exceed the Aggregate Revolving Loan Commitment at such time, or (ii) the
aggregate outstanding amount of the L/C Obligations would exceed $10,000,000; or
(b) issue (or amend) any Letter of Credit which has an expiration date
later than the date which is the earlier of one (1) year after the date of
issuance thereof or the Revolving Loan Termination Date; provided that any
Letter of Credit with a one-year tenor may provide for the renewal thereof for
additional one-year periods (not to extend beyond the Revolving Loan Termination
Date) with the written consent of the applicable Issuing Bank.
3.4 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(a) the Company shall have delivered to the applicable Issuing Bank (at
such times and in such manner as such Issuing Bank may reasonably prescribe) and
the Administrative Agent, a request for issuance of such Letter of Credit in
substantially the form of Exhibit B hereto (each such request a "Request For
Letter of Credit"), duly executed application for such Letter of Credit, and
such other documents, instructions and agreements as may be required pursuant to
the terms thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C Documents"), and the proposed
Letter of Credit shall be reasonably satisfactory to such Issuing Bank as to
form and content; and
(b) as of the date of issuance no order, judgment or decree of any court,
arbitrator or Governmental Authority shall purport by its terms to enjoin or
restrain the applicable Issuing Bank from issuing such Letter of Credit and no
law, rule or regulation applicable to such Issuing Bank and no request or
directive (whether or not having the force of law) from a Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit or request that such
Issuing Bank refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit.
(a) Subject to the terms and conditions of this Article III and provided
that the applicable conditions set forth in Sections 5.1, 5.2 and 5.3 hereof
have been satisfied, the applicable Issuing Bank shall, on the requested date,
issue a Letter of Credit on behalf of the Company or a Subsidiary Borrower, as
applicable in accordance with such Issuing Bank's usual and customary business
practices and, in this connection, such Issuing Bank may assume that the
applicable conditions set forth in Sections 3.4(b) and 5.3 hereof have been
satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable conditions
have not been met.
(b) Promptly, and in any event not more than one (1) Business Day following
the date of issuance of any Letter of Credit, the applicable Issuing Bank shall
give the Administrative Agent written or telex notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a Letter of Credit
(provided that the failure to provide such notice shall not result in any
liability on the part of such Issuing Bank), and the Administrative Agent shall
promptly give notice to the Lenders of each such issuance.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless the
requirements of this Section 3.5 are met as though a new Letter of Credit was
being requested and issued.
3.6 Letter of Credit Participation. On the Closing Date, with respect to
the Letters of Credit identified on Schedule 3.2, and immediately upon the
issuance of each Letter of Credit hereunder, each Lender shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the
applicable Issuing Bank an undivided interest and participation in and to such
Letter of Credit, the obligations of the Company in respect thereof, and the
liability of such Issuing Bank thereunder (collectively, an "L/C Interest") in
the amount available for drawing under such Letter of Credit multiplied by such
Lender's Pro Rata Revolving Share.
3.7 Reimbursement Obligation.
(a) The Company agrees unconditionally, irrevocably and absolutely to pay
immediately to the Administrative Agent, for the account of the Lenders with
Revolving Loan Commitments, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Company to reimburse the Administrative Agent for an advance made under a Letter
of Credit or L/C Draft being hereinafter referred to as a "Reimbursement
Obligation" with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by the Company no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, if the
Company shall have received notice of a Reimbursement Obligation later than
12:00 noon (New York time), on any Business Day or on a day which is not a
Business Day, no later than 12:00 noon (New York time), on the immediately
following Business Day or, in the case of any other draw on a Letter of Credit,
the date specified in the demand of such Issuing Bank. If the Company at any
time fails to repay a Reimbursement Obligation pursuant to this Section 3.7, the
Issuing Bank shall promptly notify the Administrative Agent and the
Administrative Agent shall promptly notify each Lender and the Company shall be
deemed to have requested to borrow Revolving Loans from the Lenders with
Revolving Loan Commitments, as of the date of the advance giving rise to the
Reimbursement Obligation, equal to the amount of the unpaid Reimbursement
Obligation. Such Revolving Loans shall be made as of the date of the payment
giving rise to such Reimbursement Obligation, automatically, without notice and
without any requirement to satisfy the conditions precedent otherwise applicable
to an Advance of Revolving Loans.
(b) Each Lender with a Revolving Loan Commitment shall upon any notice
pursuant to Section 3.7(a) make available to the Administrative Agent for the
account of the relevant Issuing Bank in immediately available funds equal to its
Pro Rata Revolving Share of the amount of the drawing, whereupon such Lenders
shall (subject to Section 3.7(d)) each be deemed to have made a Revolving Loan
constituting a Floating Rate Advance, the proceeds of which Advance shall be
used to repay such Reimbursement Obligation. If any Lender so notified fails to
make available to the Administrative Agent for the account of the Issuing Bank
the amount of such Lender's Pro Rata Revolving Share of the amount of the
drawing by no later than 2:00 p.m. (New York time) on the date of the advance
giving rise to the Reimbursement Obligation, if notified prior to 12:00 p.m.
(New York time) or on the next Business Day if notified thereafter, then
interest shall accrue on such Lender's obligation to make such payment, from
such date to the date such Lender makes such payment, at a rate per annum equal
to the Federal Funds Effective Rate in effect from time to time during such
period. The Administrative Agent will promptly give notice of the occurrence of
the draw, but failure of the Administrative Agent to give any such notice in
sufficient time to enable any Lender to effect such payment on such date shall
not relieve such Lender from its obligations under this Section 3.7.
(c) Each Lender's obligation in accordance with this Agreement to make the
Revolving Loans, as contemplated by this Section 3.7, as a result of a drawing
under a Letter of Credit, shall be absolute and unconditional and without
recourse to the Issuing Banks and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against an Issuing Bank, the Company or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Unmatured Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(d) If, for any reason, the Company fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation to make Revolving Loans,
then such Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Floating Rate Advance.
3.8 Letter of Credit Fees. The Company agrees to pay:
(a) quarterly, in arrears, to the Administrative Agent for the ratable
benefit of the Lenders with a Revolving Loan Commitment a letter of credit fee
at a rate per annum equal to the Applicable L/C Fee Percentage on the average
daily outstanding amount available for drawing under all Letters of Credit;
(b) quarterly, in arrears, to the applicable Issuing Bank, a letter of
credit fronting fee in an amount agreed to between the Company and the
applicable Issuing Bank on the average daily outstanding face amount available
for drawing under all Letters of Credit issued by such Issuing Bank; and
(c) to the applicable Issuing Bank, all reasonable and customary fees and
other issuance, amendment, document examination, negotiation and presentment
expenses and related charges in connection with the issuance, amendment,
presentation of L/C Drafts, and the like customarily charged by such Issuing
Banks with respect to standby letters of credit.
3.9 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(b), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount paid by the Company during such month. In
addition, upon the request of the Administrative Agent, each Issuing Bank shall
furnish to the Administrative Agent copies of any Letter of Credit and any
application for or reimbursement agreement with respect to a Letter of Credit to
which the Issuing Bank is party and such other documentation as may reasonably
be requested by the Administrative Agent. Upon the request of any Lender, the
Administrative Agent will provide to such Lender information concerning such
Letters of Credit.
3.10 Indemnification; Exoneration.
(a) In addition to amounts payable as elsewhere provided in this Article III,
the Company hereby agrees to protect, indemnify, pay and save harmless the
Administrative Agent, each Issuing Bank and each Lender from and against any and
all liabilities and costs which the Administrative Agent, such Issuing Bank or
such Lender may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit other than, in the case of the
applicable Issuing Bank, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "Governmental Acts").
(b) As among the Company, the Lenders, the Administrative Agent and the
Issuing Banks, the Company assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Company at the time of request for any Letter of Credit, neither
the Administrative Agent, any Issuing Bank nor any Lender shall be responsible
(in the absence of gross negligence or willful misconduct of such party in
connection therewith, as determined by the final judgment of a court of
competent jurisdiction): (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions not expressly provided on the face of such Letter of Credit and
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or other similar form of teletransmission or
otherwise; (v) for errors in interpretation of technical trade terms; (vi) for
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Administrative Agent,
the Issuing Banks and the Lenders, including, without limitation, any
Governmental Acts. None of the above shall affect, impair, or prevent the
vesting of any Issuing Bank's rights or powers under this Section 3.10.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative Agent or any
Lender under any resulting liability to the Company or relieve the Company of
any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the Company
hereunder, the agreements and obligations of the Company contained in this
Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.11 Cash Collateral. Notwithstanding anything to the contrary herein or in
any application for a Letter of Credit, after the occurrence and during the
continuance of a Default, the Company shall, on the Business Day that it
receives the Administrative Agent's demand, deliver to the Administrative Agent
for the benefit of the Lenders and the Issuing Banks, cash, or other collateral
of a type satisfactory to the Required Lenders, having a value, as determined by
such Lenders, equal to one hundred percent (100%) of the aggregate amount of the
outstanding L/C Obligations. In addition, if the Revolving Credit Availability
is at any time less than the amount of all contingent L/C Obligations
outstanding at any time, the Company shall deposit cash collateral with the
Administrative Agent in an amount equal to one-hundred five percent (105%) of
the amount by which such L/C Obligations exceed such Revolving Credit
Availability. Any such collateral shall be held by the Administrative Agent in a
separate account appropriately designated as a cash collateral account in
relation to this Agreement and the Letters of Credit and retained by the
Administrative Agent for the benefit of the Lenders and the Issuing Banks as
collateral security for the Company's obligations in respect of this Agreement
and each of the Letters of Credit and L/C Drafts. Such amounts shall be applied
to reimburse the Issuing Banks for drawings or payments under or pursuant to
Letters of Credit or L/C Drafts, or if no such reimbursement is required, to
payment of such of the other Obligations as the Administrative Agent shall
determine. If no Default shall be continuing, amounts remaining in any cash
collateral account established pursuant to this Section 3.11 which are not to be
applied to reimburse an Issuing Bank for amounts actually paid or to be paid by
such Issuing Bank in respect of a Letter of Credit or L/C Draft, shall be
returned to the Company within one (1) Business Day (after deduction of the
Administrative Agent's expenses incurred in connection with such cash collateral
account).
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement or any interpretation or
application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith, subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any Borrower
(excluding taxation of the overall net income of any Lender or taxation of a
similar basis, which are governed by Section 2.15(e)), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan Commitment,
Loans, its L/C Interests, the Letters of Credit or other amounts due it
hereunder, or imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency Rate Loans)
with respect to its Revolving Loan Commitment, Loans, L/C Interests or the
Letters of Credit, or imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Revolving Loan Commitment, Loans, the L/C
Interests or the Letters of Credit or reduces any amount received by any Lender
or any applicable Lending Installation in connection with its Revolving Loan
Commitment, Loans or Letters of Credit, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the amount
of Revolving Loan Commitment, Loans or L/C Interests held or interest received
by it or by reference to the Letters of Credit, by an amount deemed material by
such Lender; and the result of any of the foregoing is to increase the cost to
that Lender of making, renewing or maintaining its Revolving Loan Commitment,
Loans, L/C Interests, or Letters of Credit or to reduce any amount received
under this Agreement, then, within fifteen (15) days after receipt by the
Company or any other Borrower of written demand by such Lender pursuant to
Section 4.5, the applicable Borrowers shall pay such Lender that portion of such
increased expense incurred or reduction in an amount received which such Lender
reasonably determines is attributable to making, funding and maintaining its
Loans, L/C Interests, Letters of Credit and its Revolving Loan Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (a) the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (b) such increase
in capital will result in an increase in the cost to such Lender of maintaining
its Revolving Loan Commitment, Loans, L/C Interests, the Letters of Credit or
its obligation to make Loans hereunder, then, within fifteen (15) days after
receipt by the Company or any other Borrower of written demand by such Lender
pursuant to Section 4.5, the applicable Borrowers shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Revolving Loan Commitment, its Loans, its
L/C Interests, the Letters of Credit or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"Change" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3 Availability of Types of Advances. If (a) any Lender determines that
maintenance of its Eurocurrency Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (b) the Required Lenders determine that (i) deposits
of a type or maturity appropriate to match fund Eurocurrency Rate Advances are
not available or (ii) the interest rate applicable to a Eurocurrency Rate
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(a), require any Advances of the affected Type to be repaid or converted into
another Type.
4.4 Funding Indemnification. If any payment of a Eurocurrency Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Eurocurrency
Rate Advance is not made on the date specified by the applicable Borrower for
any reason other than default by the Lenders, the Borrowers shall indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Eurocurrency Rate Advance or Swing Line Loan,
as applicable.
4.5 Lender Statements; Survival of Indemnity. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurocurrency Rate Loans to reduce any liability of any Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not, in such Lender's
judgment, disadvantageous to such Lender. Any demand for compensation pursuant
to this Article IV shall be in writing and shall state the amount due, if any,
under Sections 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Eurocurrency Rate Loan shall be
calculated as though each Lender funded its Eurocurrency Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurocurrency Rate applicable to such Loan,
whether in fact that is the case or not. The obligations of the Company and the
other Borrowers under Sections 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Company has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, and the other conditions set forth below have
been satisfied:
(a) Copies of the Certificate of Incorporation or equivalent document of
each of the Loan Parties, together with all amendments thereto, and, to the
extent applicable, a certificate of good standing, in each case certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of each of
the Loan Parties of their respective Board of Directors' resolutions authorizing
the execution of the Loan Documents.
(c) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name and title
and bear the signature of the officers of the applicable Loan Party authorized
to sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any change
in writing by the applicable Loan Party.
(d) A certificate, in form and substance satisfactory to the Administrative
Agent, executed by the chief financial officer of the Company, stating that on
the Closing Date, all the representations and warranties of the Loan Parties in
the Loan Documents are true and correct (unless such representation and warranty
is made as of a specific date, in which case, such representation and warranty
shall be true as of such date) and no Default or Unmatured Default has occurred
and is continuing.
(e) A Guaranty, in substantially the form of Exhibit F, or in form and
substance satisfactory to the Administrative Agent, dated as of the Closing
Date, duly executed by each Subsidiary Borrower that is a Domestic Subsidiary
and each other Domestic Subsidiary of the Company as required pursuant to
Section 7.2(k).
(f) Written opinions of the Loan Parties' United States counsel, and, if
applicable, foreign counsel, addressed to the Administrative Agent and the
Lenders, in form and substance satisfactory to the Administrative Agent.
(g) The duly executed Collateral Documents, together with insurance
certificates naming the Administrative Agent, on behalf of the Lenders, as loss
payee for any casualty policies and additional insured for any liability
policies in form and substance acceptable to the Administrative Agent.
(h) Such other documents as the Administrative Agent or its counsel or the
Required Lenders may have reasonably requested.
(i) There shall not have occurred a material adverse change since January
3, 2003 in the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise), properties or prospects of the Company and
its Subsidiaries taken as a whole.
(j) The Administrative Agent, Lenders and/or their Affiliates shall have
received all fees and expenses, including the reasonable fees and expenses of
Mayer, Brown, ▇▇▇▇ & Maw, required to be paid on or before the Closing Date.
(k) Evidence satisfactory to the Administrative Agent that all
governmental, shareholder and third party consents and approvals necessary in
connection with this Agreement and the other transactions contemplated hereby
have been obtained; all such consents and approvals in full force and effect;
and all applicable waiting periods have expired without any action being taken
by any Governmental Authority that could restrain, prevent or impose any
material adverse conditions on the Refinancing or such other transactions or
that could seek or threaten any of the foregoing, and no law or regulation shall
be applicable which in the judgment of the Administrative Agent could have such
effect.
(l) The Administrative Agent shall be satisfied that the Company's Leverage
Ratio does not, on a pro forma basis, exceed 2.25:1 as of the last
fiscal quarter preceding the Closing Date.
(m) Evidence satisfactory to the Administrative Agent that after giving
effect to the Refinancing, outstanding Indebtedness of the Company and its
Subsidiaries, except for Permitted Existing Indebtedness, has been paid in full
and all Liens securing such Indebtedness shall have been terminated.
5.2 Initial Advance to Each New Subsidiary Borrower. No Lender shall be
required to make an Advance hereunder or purchase participations in Letters of
Credit hereunder, and no Swing Line Bank shall be required to make any Swing
Line Loans hereunder, in each case, to or for the account of a new Subsidiary
Borrower added after the Closing Date unless the Company has furnished or caused
to be furnished to the Administrative Agent with sufficient copies for the
Lenders:
(a) The Assumption Letter executed and delivered by such Subsidiary
Borrower and containing the written consent of the Company thereon, as
contemplated by Section 2.21.
(b) Copies, certified by the Secretary, Assistant Secretary, Director or
Officer of the Subsidiary Borrower, of its Board of Directors' resolutions
approving the Assumption Letter.
(c) An incumbency certificate, executed by the Secretary, Assistant
Secretary, Director or Officer of the Subsidiary Borrower, which shall identify
by name and title and bear the signature of the officers of such Subsidiary
Borrower authorized to sign the Assumption Letter and the other documents to be
executed and delivered by such Subsidiary Borrower hereunder, upon which
certificate the Administrative Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Company.
(d) An opinion of counsel to such Subsidiary Borrower, in form and
substance satisfactory to the Administrative Agent.
(e) Guaranty documentation and such other security or contribution
agreement documentation required by Section 2.21 from such Subsidiary Borrower
in form and substance satisfactory to the Administrative Agent.
5.3 Each Advance and Each Letter of Credit. The Lenders shall not be
required to make any Loan, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(a) There exists no Default or Unmatured Default and no Default or
Unmatured Default would result after giving effect to the making of any Loan or
issuance of any Letter of Credit;
(b) All of the representations and warranties contained in Article VI are
true and correct as of such Borrowing Date (unless such representation and
warranty is made as of a specific date, in which case, such representation and
warranty shall be true as of such date);
(c) The Revolving Credit Obligations do not, and after making such proposed
Advance would not, exceed the Aggregate Revolving Loan Commitment; and
(d) the Administrative Agent has received a timely Borrowing Notice with
respect to the applicable Loan.
Each Borrowing/Conversion/Continuation Notice with respect to a new
Advance and the letter of credit application with respect to each Letter of
Credit or Letter of Credit amendment shall constitute a representation and
warranty by the Company that the conditions contained in Sections 5.3(a), (b)
and (c) have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and the other financial accommodations
to the Borrowers and to issue the Letters of Credit described herein, each of
the Borrowers represents and warrants as follows to each Lender and the
Administrative Agent as of the date of this Agreement, giving effect to the
consummation of the transactions contemplated by the Loan Documents, and
thereafter on each date as required by Sections 5.2 and 5.3:
6.1 Organization; Corporate Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2 Authorization and Validity. Each of the Loan Parties has the requisite
power and authority and legal right to execute and deliver the Loan Documents to
which it is a party and to perform its obligations thereunder. The execution and
delivery by each of the Loan Parties of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper proceedings, and the Loan Documents to which it is a party
constitute legal, valid and binding obligations of each of the Loan Parties
enforceable against each of the Loan Parties in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
6.3 No Conflict; Government Consent. Neither the execution and delivery by
the Loan Parties of the Loan Documents, nor the consummation of the transactions
contemplated thereby, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any Subsidiary or the Company's or any Subsidiary's
articles of incorporation or by-laws or other constitutive documents and
agreements or the provisions of any material indenture, instrument or agreement
to which the Company or any Subsidiary is a party or is subject, or by which it,
or its property, is bound, or conflict with or constitute a default thereunder,
or result in the creation or imposition of any Lien in, of or on the property of
the Company or any of its Subsidiaries pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize any Loan Party, or is required to be obtained
by any Loan Party in connection with the execution, delivery and performance of,
or the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4 Financial Statements. Each of the consolidated financial statements of
the Company and its Subsidiaries for the fiscal years ended December 31, 2000,
December 31, 2001 and January 3, 2003 were prepared in accordance with Agreement
Accounting Principles and fairly present the consolidated financial condition
and operations of the Company and its Subsidiaries at such dates and the
consolidated results of their operations for the periods then ended.
6.5 Material Adverse Change. Since January 3, 2003, there has occurred no
change in the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise), properties or prospects, of the Company, or
the Company and its Subsidiaries taken as a whole, or any other event which has
had or could reasonably be expected to have a Material Adverse Effect.
6.6 Taxes. The Company and the Subsidiaries have filed all United States
federal tax returns and all other material tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any Subsidiary, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. No tax liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on the books of
the Company and the Subsidiaries in respect of any taxes or other governmental
charges are adequate.
6.7 Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of the Borrowers, threatened against or affecting the
Company or any of its Subsidiaries (a) challenging the validity or
enforceability of any material provision of the Loan Documents or (b) which
could reasonably be expected to have a Material Adverse Effect. There is no
material loss contingency within the meaning of Agreement Accounting Principles
which has not been reflected in the consolidated financial statements of the
Company referred to in Section 6.4 or prepared and delivered pursuant to Section
7.1(a) for the fiscal period during which such material loss contingency was
incurred. Neither the Company nor any of its Subsidiaries is subject to or in
default with respect to any final judgment, writ, injunction, restraining order
or order of any nature, decree, rule or regulation of any court or Governmental
Authority which could reasonably be expected to have a Material Adverse Effect.
6.8 Subsidiaries. Schedule 6.8 hereto contains an accurate list of all of
the Subsidiaries of the Company in existence on the Closing Date, setting forth
their respective jurisdictions of formation and the percentage of their
respective Capital Stock owned directly or indirectly by the Company or other
Subsidiaries. All of the issued and outstanding Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable. Except as set forth on Schedule 6.8, no authorized but unissued
or treasury shares of Capital Stock of any Subsidiary are subject to any option,
warrant, right to call or commitment of any kind or character. Except as set
forth on Schedule 6.8, neither the Company nor any Subsidiary has any
outstanding Capital Stock or securities convertible into or exchangeable for any
shares of its Capital Stock, or any right issued to any Person (either
preemptive or other) to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to
any of its Capital Stock or any Capital Stock or securities convertible into or
exchangeable for any of its Capital Stock other than as expressly set forth in
the certificate or articles of incorporation of the Company or such Subsidiary.
Neither the Company nor any Subsidiary is subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire any shares of its
Capital Stock or any convertible securities, rights or options of the type
described in the preceding sentence except as otherwise set forth on Schedule
6.8. Except as set forth on Schedule 6.8, as of the date hereof the Company does
not own or hold, directly or indirectly, any Capital Stock or equity security
of, or any equity or partnership interest in any Person other than such
Subsidiaries.
6.9 ERISA. As at January 3, 2003 the Unfunded Liabilities of all Single
Employer Plans did not in the aggregate exceed $5,000,000. Each Plan complies
and has been maintained in all material respects with all applicable
requirements of law and regulations. No Reportable Event has occurred with
respect to any Single Employer Plan having any Unfunded Liability which has or
may reasonably be expected to result in a liability to the Company in excess of
$10,000,000. Neither the Company nor any other members of the Controlled Group
has terminated any Single Employer Plan without in each instance funding all
vested benefit obligations thereunder. Each member of the Controlled Group has
fulfilled its minimum funding obligations with respect to each Multiemployer
Plan. No Termination Event has occurred or is reasonably expected to occur.
There are no material actions, suits or claims (other than routine claims for
benefits) pending or, to the knowledge of the Company or its Subsidiaries,
threatened with respect to any Plan or Multiemployer Plan.
6.10 Accuracy of Information. None of the (a) information, exhibits or
reports furnished or to be furnished by the Company or any Subsidiary to the
Administrative Agent or to any Lender in connection with the negotiation of the
Loan Documents, or (b) representations or warranties of the Company or any
Subsidiary contained in this Agreement, the other Loan Documents or any other
document, certificate or written statement furnished to the Administrative Agent
or the Lenders by or on behalf of the Company or any Subsidiary for use in
connection with the transactions contemplated by this Agreement, contained,
contains or will contain any untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. The pro forma financial information
contained in such materials is based upon good faith estimates and assumptions
believed by the Company to be reasonable at the time made. There is no fact
known to the Company (other than matters of a general economic nature) that has
had or could reasonably be expected to have a Material Adverse Effect and that
has not been disclosed herein or in such other documents, certificates and
statements furnished to the Lenders for use in connection with the transactions
contemplated by this Agreement. No information, exhibit or report furnished by
the Company or any Subsidiary to the Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not materially
misleading.
6.11 Regulation U. Margin Stock constitutes less than 25% of those assets
of the Company and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
6.12 Material Agreements. Neither the Company nor any of its Subsidiaries
is a party to any Contractual Obligation the performance of which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is subject to any charter or other restriction in
any constitutive agreement or document affecting its business, properties,
financial condition, prospects or results of operations which could reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any Contractual Obligation
to which it is a party, which default could reasonably be expected to have a
Material Adverse Effect.
6.13 Compliance With Laws. The Company and its Subsidiaries have complied
with all Requirements of Law except to the extent that such non-compliance could
not reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any Requirements of Law or the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
6.14 Ownership of Properties. On the Closing Date, the Company and its
Subsidiaries have good title, free of all Liens, to all of the properties and
assets reflected in its January 3, 2003 audited financial statements as owned by
it (other than properties and assets disposed of in the ordinary course of
business since such date), except Liens permitted under Section 7.3(b). On or
after the Closing Date (i) neither the Company nor any of its Domestic
Subsidiaries own any real property that has a fair market value in excess of
$3,000,000 and is not subject to a Mortgage in favor of the Administrative Agent
and (ii) the aggregate fair market value of all of the real property owned by
the Company and its Domestic Subsidiaries not subject to a Mortgage in favor of
the Administrative Agent is less than $10,000,000.
6.15 Statutory Indebtedness Restrictions. Neither the Company nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Environmental Matters. Each of the Company and its Subsidiaries is in
compliance with all Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business and as to which
the failure to so comply, in the aggregate for all such failures, would
reasonably be likely to subject the Company or any of its Subsidiaries to
liability that would have a Material Adverse Effect. Neither the Company nor any
Subsidiary is subject to any liability under the Environmental, Health or Safety
Requirements of Laws in effect in any jurisdiction where it is presently doing
business that could reasonably be expected to have a Material Adverse Effect. As
of the date hereof, neither the Company nor any Subsidiary has received any:
(a) notice from any Governmental Authority by which any of the Company's or
such Subsidiary's present or previously-owned or leased property has been
identified in any manner by any such Governmental Authority as a hazardous
substance disposal or removal site, "Super Fund" clean-up site or candidate for
removal or closure pursuant to any Environmental, Health or Safety Requirements
of Law; or
(b) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has attached to any of
the Company's or such Subsidiary's owned or leased property or any revenues of
the Company's or such Subsidiary's owned or leased property; or
(c) communication, written or oral, from any Governmental Authority
concerning action or omission by the Company or such Subsidiary in connection
with its ownership or leasing of any property resulting in the release of any
hazardous substance resulting in any violation of any Environmental, Health or
Safety Requirements of Law; where the effect of which, in the aggregate for all
such notices and communications, could reasonably be expected to have a Material
Adverse Effect.
6.17 Insurance. The properties and assets and business of the Company and
its Subsidiaries are insured with financially sound and reputable insurance
companies not Subsidiaries of the Company, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and are similarly situated.
6.18 Labor Matters. As of the Closing Date, no labor disputes, strikes or
walkouts affecting the operations of the Company or any of its Subsidiaries, are
pending, or, to the Company's knowledge, threatened, planned or contemplated
which could reasonably be expected to have a Material Adverse Effect.
6.19 Solvency. After giving effect to (i) the extensions of credit made
hereunder on the Closing Date or such other date as Loans requested hereunder
were made, (ii) the other transactions contemplated by this Agreement and the
other Loan Documents, and (iii) the payment and accrual of all transaction costs
with respect to the foregoing, the Company and its Subsidiaries are Solvent.
6.20 Default. No Default or Unmatured Default has occurred and is
continuing.
6.21 Foreign Employee Benefit Matters. (a) Each Foreign Employee Benefit
Plan is in compliance in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan (other than a Foreign Pension Plan), reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction in which such Plan is
maintained; and (d) there are no material actions, suits or claims (other than
routine claims for benefits) pending or, to the knowledge of the Company and its
Subsidiaries, threatened against the Company or any Subsidiary of it or any
member of its Controlled Group with respect to any Foreign Employee Benefit
Plan.
6.22 Collateral Documents. All representations and warranties of the
Borrowers and the Guarantors contained in the Collateral Documents are true and
correct.
6.23 Security. The provisions of the Collateral Documents are effective to
create and give the Administrative Agent, for the benefit of the Lenders, as
security for the repayment of the obligations secured thereby, a legal, valid,
perfected and enforceable Lien (which priority is subject only to prior Liens
permitted by such agreements) upon all right, title and interest of the Company
and its Subsidiaries in any and all of the Collateral described therein. The
Mortgages, upon their execution and delivery, will be effective to create and
give the Administrative Agent, for the benefit of the Lenders, as security for
repayment of the obligations to be secured thereby, a legal, valid, perfected
and enforceable Lien (which priority will be subject only to prior Liens
permitted by such mortgages) upon all right, title and interest of the Borrowers
and the Guarantors in the Collateral described therein. The Pledge Agreement is
effective to create and give the Administrative Agent, for the benefit of the
Lenders, as security for the repayment of the obligations secured thereby, a
legal, valid, perfected and enforceable first priority Lien upon and security
interest in the Capital Stock pledged thereby.
6.24 Subsidiaries. Except as set forth on Schedule 6.8, each Subsidiary of
the Company is a Wholly-Owned Subsidiary.
6.25 Representations and Warranties of each Subsidiary Borrower. Each
Subsidiary Borrower further represents and warrants to the Administrative Agent
and the Lenders that:
(a) Organization and Corporate Powers. Such Subsidiary Borrower (i) is a
company duly formed and validly existing and in good standing under the laws of
the state of its organization; (ii) has the requisite power and authority to own
its property and assets and to carry on its business substantially as now
conducted except where the failure to have such requisite authority would not
have a Material Adverse Effect on such Subsidiary Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver any Loan
Document to which it is a party and the performance by it of its obligations
thereunder have been duly authorized by proper corporate proceedings.
(b) Binding Effect. Each Loan Document executed by such Subsidiary Borrower
is the legal, valid and binding obligation of such Subsidiary Borrower
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
(c) No Conflict; Government Consent. Neither the execution and delivery by
such Subsidiary Borrower of the Loan Documents to which it is a party, nor the
consummation by it of the transactions therein contemplated to be consummated by
it, nor compliance by such Subsidiary Borrower with the provisions thereof will
violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on such Subsidiary Borrower or any of its Subsidiaries or such
Subsidiary Borrower's or any of its Subsidiaries' articles or certificate of
incorporation, by-laws or other constituent documents and agreements or the
provisions of any indenture, instrument or agreement to which such Subsidiary
Borrower or any of its Subsidiaries is a party or is subject, or by which it, or
its property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any lien in, of or on the property of
such Subsidiary Borrower or any of its Subsidiaries pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental agency is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents.
(d) No Immunity. Neither such Subsidiary Borrower nor any of its assets is
entitled to immunity from suit, execution, attachment or other legal process.
Such Subsidiary Borrower's execution and delivery of the Loan Documents to which
it is a party constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(e) Application of Representations and Warranties. It is understood and
agreed by the parties hereto that the representations and warranties of each
Subsidiary Borrower (other than any Subsidiary Borrower that shall be a
Subsidiary Borrower as of the Closing Date) in this Section 6.25 shall only be
applicable to such Subsidiary Borrower on and after the date of its execution of
an Assumption Letter.
ARTICLE VII
COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1 Reporting. The Company shall:
(a) Financial Reporting. Furnish to the Administrative Agent and the
Lenders:
(i) Quarterly Reports. As soon as practicable and in any event within
forty-five (45) days after the end of the first three quarterly
periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated unaudited balance sheets as at the end
of each such period and consolidated statement of income and
consolidated statement of changes in owners' equity, and a
statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, presented on the same
basis as described in Section 7.1(a)(ii) and on a comparative
basis with the statements for such period in the prior fiscal
year of the Company.
(ii) Annual Reports. As soon as practicable, and in any event within
ninety (90) days after the end of each of its fiscal years,
(a) an audit report, certified by internationally recognized
independent certified public accountants, prepared in
accordance with generally accepted accounting principles, on
a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period,
related statement of income and consolidated statement of
changes in owners' equity, and a statement of cash flows,
which audit report shall be unqualified and shall state that
such financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries as at
the dates indicated and the results of operations and cash
flows for the periods indicated in conformity with generally
accepted accounting principles and that the examination by
such accountants in connection with such consolidated
financial statements has been made in accordance with
generally accepted auditing standards and (b) projected
balance sheets, statements of income and cash flows for each
fiscal year through the Termination Date, prepared in
accordance with generally accepted accounting principles, on
a consolidated basis, together with the appropriate
supporting details and a statement of underlying
assumptions, all in form similar to those delivered to the
Lenders prior to the Closing Date.
(iii)Officer's Certificate. Together with each delivery of any
financial statement:
(a) pursuant to clauses (i) and (ii) of this Section 7.1(a), an
Officer's Certificate of the Company, substantially in the
form of Exhibit D attached hereto and made a part hereof,
stating that as of the date of such Officer's Certificate no
Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status
thereof and
(b) pursuant to clauses (i) and (ii) of this Section 7.1(a), a
compliance certificate, substantially in the form of Exhibit
E attached hereto and made a part hereof, signed by the
Company's chief financial officer, chief accounting officer
or treasurer, setting forth calculations for the period then
ended for Section 2.5(b), if applicable, which demonstrate
compliance, when applicable, with the provisions of Sections
7.3(a) through 7.3(h), Section 7.3(p) and Section 7.4, and
which calculate the Leverage Ratio for purposes of
determining the then Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage.
(b) Notice of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer, controller or other
executive officer of the Company obtaining actual knowledge (i) of any condition
or event which constitutes a Default or Unmatured Default, (ii) that any Lender
or Administrative Agent has given any written notice to any Authorized Officer
with respect to a claimed Default or Unmatured Default under this Agreement, or
(iii) that any Person has given any written notice to any Authorized Officer or
any Subsidiary of the Company or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section 8.1(d),
the Company shall deliver to the Administrative Agent and the Lenders an
Officer's Certificate specifying (A) the nature and period of existence of any
such claimed default, Default, Unmatured Default, condition or event, (B) the
notice given or action taken by such Person in connection therewith, and (C)
what action the Company has taken, is taking or proposes to take with respect
thereto.
(c) Lawsuits. (i) Promptly upon the Company obtaining actual knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any Governmental
Authority, against or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries not previously disclosed
pursuant to Section 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of its Subsidiaries to liability in an amount
aggregating $5,000,000 or more (exclusive of claims covered by insurance
policies of the Company or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim coverage on
such claims), give written notice thereof to the Administrative Agent and the
Lenders and provide such other information as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to evaluate such
matters; and (ii) in addition to the requirements set forth in clause (i) of
this Section 7.1(c), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration disclosed pursuant to
Section 6.7 or covered by a report delivered pursuant to clause (i) above and
provide such other information as may be reasonably available to it to enable
the Required Lenders and the Administrative Agent and its counsel to evaluate
such matters.
(d) ERISA Notices. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Company's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after the Company or any
member of the Controlled Group obtains knowledge that a
Termination Event has occurred or a lawsuit involving a Plan
or Multiemployer Plan has been filed, in each case which
could reasonably be expected to subject the Company to
liability in excess of $5,000,000, a written statement of
the chief financial officer, treasurer or designee of the
Company describing such Termination Event and the action, if
any, which the member of the Controlled Group has taken, is
taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or
PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company or any of
its Subsidiaries obtains knowledge that a material
prohibited transaction (defined in Sections 406 of ERISA and
Section 4975 of the Code) has occurred, a statement of the
chief financial officer, treasurer or designee of the
Company describing such transaction and the action which the
Company or such Subsidiary has taken, is taking or proposes
to take with respect thereto;
(iii)within ten (10) Business Days after the Company or any of
its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the
qualification of a Plan under Section 401(a) of the Code,
copies of each such letter;
(iv) within ten (10) Business Days after the filing thereof with
the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all communications received
by the Company or a member of the Controlled Group with
respect to such request;
(v) within ten (10) Business Days after receipt by the Company
or any member of the Controlled Group of the PBGC's
intention to terminate a Benefit Plan or to have a trustee
appointed to administer a Benefit Plan, copies of each such
notice;
(vi) within ten (10) Business Days after the Company or any
member of the Controlled Group fails to make a required
installment or any other required payment under Section 412
of the Code on or before the due date for such installment
or payment, a notification of such failure; and
(vii)within ten (10) Business Days after the establishment of
any Foreign Employee Benefit Plan or the commencement of, or
obligation to commence, contributions to any Foreign
Employee Benefit Plan to which the Company or any of its
Subsidiaries was not previously contributing, where the
aggregate annual contributions to such Plan(s) resulting
therefrom are or could reasonably be expected to be in
excess of $5,000,000, notification of such establishment,
commencement or obligation to commence and the amount of
such contributions.
For purposes of this Section 7.1(d), the Company, any of its Subsidiaries
and any member of the Controlled Group shall be deemed to know all facts known
by the administrator of any Plan which is a Single Employer Plan.
(e) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any material labor
dispute to which the Company or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any material Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of the Company or any of its
Subsidiaries.
(f) Other Indebtedness. Deliver to the Administrative Agent (with
subsequent delivery by the Administrative Agent to the Lenders within a
reasonable period of time) (i) a copy of each regular report, notice or
communication regarding potential or actual defaults (including any accompanying
officer's certificate) delivered by or on behalf of the Company or any of its
Subsidiaries to the holders of Indebtedness for money borrowed with an aggregate
outstanding principal amount in excess of $10,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Company or any of its Subsidiaries from the holders of Indebtedness for money
borrowed with an aggregate outstanding principal amount in excess of $10,000,000
regarding potential or actual defaults pursuant to the terms of such
Indebtedness, such delivery to be made promptly after such notice or other
communication is received by the Company or its Subsidiary.
(g) Other Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of (i) all financial statements, reports on Form
▇-▇, ▇-▇, ▇▇-▇ or 10-Q and non-routine notices, if any, sent or made available
generally by the Company to its securities holders or filed with the Commission
by the Company, and (ii) all notifications received from the Commission by the
Company or its Subsidiaries pursuant to the Securities Exchange Act of 1934 and
the rules promulgated thereunder other than routine reminders or notices that do
not relate to specific violations of rules promulgated by the Commission. The
Company shall include the Administrative Agent and the Lenders on its standard
distribution lists for all press releases made available generally by the
Company or any of the Company's Subsidiaries to the public concerning material
developments in the business of the Company or any such Subsidiary.
(h) Environmental Notices. As soon as possible and in any event within
fifteen (15) days after receipt by the Company or any of its Subsidiaries,
deliver to the Administrative Agent and the Lenders a copy of (i) any notice or
claim to the effect that the Company or any of its Subsidiaries is or may be
liable to any Person as a result of the Release by the Company, any of its
Subsidiaries, or any other Person of any Contaminant into the environment, and
(ii) any notice alleging any violation of any Environmental, Health or Safety
Requirements of Law by the Company or any of its Subsidiaries if, in either
case, such notice or claim relates to an event which could reasonably be
expected to subject the Company and each of its Subsidiaries to liability
individually or in the aggregate in excess of $10,000,000.
(i) Real Estate. Notify the Administrative Agent and the Lenders
promptly and in any event within five (5) days after (i) the
Company or any of its Domestic Subsidiaries acquires or owns
any real property with a fair market value in excess of
$3,000,000 or (ii) the Company and its Domestic
Subsidiaries, taken as a whole, acquire or own real property
with an aggregate fair market value in excess of $10,000,000
(and not subject to a Mortgage in favor of the
Administrative Agent).
(j) Other Information. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the Company or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
7.2 Affirmative Covenants.
(a) Corporate Existence, Etc. Subject to Section 7.3(i), the Company shall,
and shall cause each of its Subsidiaries to, at all times maintain its corporate
existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to its businesses except
where, in the case of Subsidiaries which are not Subsidiary Borrowers, failure
to do so could not reasonably be expected to have a Material Adverse Effect.
(b) Corporate Powers; Conduct of Business. The Company shall, and shall
cause each of its Subsidiaries to, qualify and remain qualified to do business
in each jurisdiction in which the nature of its business requires it to be so
qualified and where the failure to be so qualified will have or could reasonably
be expected to have a Material Adverse Effect.
(c) Compliance with Laws, Etc. The Company shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, prospects, properties, assets
or operations of such Person, and (b) obtain as needed all permits necessary for
its operations and maintain such permits in good standing unless failure to
comply or obtain such permits could not reasonably be expected to have a
Material Adverse Effect.
(d) Payment of Taxes and Claims; Tax Consolidation. The Company shall pay,
and cause each of its Subsidiaries to pay, (i) all material taxes, assessments
and other governmental charges imposed upon it or on any of its properties or
assets or in respect of any of its franchises, business, income or property
before any penalty or interest accrues thereon, and (ii) all claims (including,
without limitation, claims for labor, services, materials and supplies) for
material sums which have become due and payable and which by law have or may
become a Lien (other than a Lien permitted by Section 7.3(b)) upon any of the
Company's or such Subsidiary's property or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no such
taxes, assessments and governmental charges referred to in clause (i) above or
claims referred to in clause (ii) above (and interest, penalties or fines
relating thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(e) Insurance. The Company will maintain, and will cause to be maintained
on behalf of each of its Subsidiaries, insurance coverage by financially sound
and reputable insurance companies or associations, against such casualties and
contingencies, of such types and in such amounts as are customary for companies
engaged in similar businesses and owning and operating similar properties, it
being understood that the Company and its Subsidiaries may self-insure against
hazards and risks with respect to which, and in such amounts, as the Company in
good faith determines prudent and consistent with sound financial practice, and
as are customary for companies engaged in similar businesses and owning and
operating similar properties. The Company shall furnish to any Lender upon
request full information as to the insurance carried.
(f) Inspection of Property; Books and Records; Discussions. The Company
shall permit and cause each of its Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or the Required
Lenders (or while any Default exists, any Lender) to visit and inspect, for a
reasonable purpose, any of the properties of the Company or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and their independent
certified public accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably requested. The
Company shall keep and maintain, and cause each of its Subsidiaries to keep and
maintain proper books of record and account in which entries in conformity with
Agreement Accounting Principles shall be made of all dealings and transactions
in relation to their respective businesses and activities.
(g) ERISA Compliance. The Company shall, and shall cause each of its
Subsidiaries to, establish, maintain and operate all Plans (and, to the extent
it is within the power of the Company or one of its Subsidiaries, all
Multiemployer Plans) to comply in all material respects with the provisions of
ERISA, the Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
(h) Maintenance of Property. The Company shall cause all property used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
and except to the extent that the failure to so maintain such property could not
be reasonably expected to have a Material Adverse Effect.
(i) Environmental Compliance. The Company shall, and shall cause each of
its Subsidiaries to comply with, all Environmental, Health or Safety
Requirements of Law, except where noncompliance could not reasonably be expected
to have a Material Adverse Effect.
(j) Use of Proceeds. The Borrowers shall use the proceeds of the Advances
to repay certain outstanding Indebtedness (including under that certain amended
and restated subordinated promissory note executed on March 20, 2002 by the
Company in favor of Spectra Physics Holdings USA, Inc. in the original principal
amount of $68,670,470) and to provide funds for the additional working capital
needs and other general corporate purposes of the Company and its Subsidiaries,
including, without limitation, the financing of Permitted Acquisitions. The
Company will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Advances to make any Acquisition other than a Permitted Acquisition made
pursuant to Section 7.3(g).
(k) Subsidiary Guarantees; Subsidiary Subordination Agreement. The Company
will:
(i) cause each Subsidiary Borrower that is a Domestic Subsidiary
and each Domestic Subsidiary that has assets with a book
value in excess of $10,000,000 to execute the Guaranty (and
from and after the Closing Date cause each other Subsidiary
Borrower that is a Domestic Subsidiary and each other
Domestic Subsidiary which has such assets to execute and
deliver to the Administrative Agent, within ten (10) days
after becoming a Subsidiary Borrower or another Domestic
Subsidiary which has such assets, as applicable, an
assumption or joinder agreement pursuant to which it agrees
to be bound by the terms and provisions of the Guaranty
(whereupon such Subsidiary shall become a "Guarantor" under
this Agreement)) and cause such Guarantors to execute and
deliver to the Administrative Agent such Collateral
Documents as the Administrative Agent may require;
(ii) in the event that at any time the book value of the assets
of all Domestic Subsidiaries which are not Guarantors
exceeds the lesser of (a) twelve percent (12%) of the
Consolidated Net Assets of the Company and its Subsidiaries
at such time and (b) $25,000,000, within ten (10) days
thereafter cause one or more of such Subsidiaries to execute
and deliver to the Administrative Agent an assumption or
joinder agreement pursuant to which it or they agree to be
bound by the terms and provisions of the Guaranty (whereupon
each such Subsidiary shall become a "Guarantor" under this
Agreement) such that, after giving effect thereto, the book
value of the assets of all Domestic Subsidiaries which are
not Guarantors does not exceed the lesser of (a) twelve
percent (12%) of the Consolidated Net Assets of the Company
and its Subsidiaries at such time and (b) $25,000,000, and
cause such Guarantors to execute and deliver to the
Administrative Agent such Collateral Documents as the
Administrative Agent may require;
(iii)cause any Subsidiary, before it makes a loan to any of the
Borrowers, to execute the Subordination Agreement (and from
and after the Closing Date cause each other Subsidiary to
execute and deliver to the Administrative Agent, within ten
(10) days after becoming a Subsidiary, as applicable, an
assumption or joinder agreement pursuant to which it agrees
to be bound by the terms and provisions of the Subordination
Agreement);
(iv) deliver and cause such Subsidiaries to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory
to the Administrative Agent; and
(v) cause each Subsidiary to be a Wholly-Owned Subsidiary,
except as set forth on Schedule 6.8.
(l) Mortgages. In the event that (i) the Administrative Agent requests a
Mortgage with respect to any real property of the Company or any of its Domestic
Subsidiaries, (ii) the Company or any of its Domestic Subsidiaries acquires or
owns any real property having a fair market value in excess of $3,000,000 that
is not subject to a Mortgage in favor of the Administrative Agent or (iii) the
Company and its Domestic Subsidiaries shall acquire or own real property not
subject to a Mortgage in favor of the Administrative Agent having an aggregate
fair market value in excess of $10,000,000, the Company or the applicable
Domestic Subsidiary shall promptly (but in any event within 30 days) after such
event, execute a Mortgage in favor of the Administrative Agent with respect to
each such property (or such properties sufficient to reduce the fair market
value of properties not subject to a Mortgage in favor of the Administrative
Agent below $10,000,000) and provide the Administrative Agent with:
(i) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and filings of such
Mortgage as may be necessary or, in the opinion of the
Administrative Agent, desirable effectively to create a
valid, perfected first priority Lien, subject to Liens
permitted by Section 7.3(b), against the properties
purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders in amounts and in form
and substance and issued by insurers, satisfactory to the
Administrative Agent, with respect to the property purported
to be covered by such Mortgage, insuring that title to such
property is marketable and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear
of all defects and encumbrances other than as permitted
under Section 7.3(b) or as approved by the Administrative
Agent, and such policies shall also include a revolving
credit endorsement and such other endorsements as the
Administrative Agent shall request and shall be accompanied
by evidence of the payment in full of all premiums thereon;
and
(iii)such other approvals, opinions, or documents as the
Administrative Agent may request.
(m) Landlord Waivers, etc. Upon the request of the Administrative Agent,
within sixty (60) days after such request, the Company and/or its Domestic
Subsidiaries shall use commercially reasonable efforts to deliver, or cause to
be delivered, to the Administrative Agent, a landlord waiver and mortgagee
estoppel letter in form and substance reasonably acceptable to the
Administrative Agent with respect to each property leased by the Company or any
of its Domestic Subsidiaries.
(n) Foreign Employee Benefit Compliance. The Company shall, and shall cause
each of its Subsidiaries and each member of its Controlled Group to, establish,
maintain and operate all Foreign Employee Benefit Plans to comply in all
material respects with all laws, regulations and rules applicable thereto and
the respective requirements of the governing documents for such Plans, except
for failures to comply which, in the aggregate, would not be reasonably expected
to subject the Company or any of its Subsidiaries to liability, individually or
in the aggregate, in excess of $5,000,000.
(o) Post-Closing Deliveries. The Company and/or its Subsidiaries shall
deliver, or cause to be delivered, to the Administrative Agent (i)
within ten (10) days of the Closing Date, (x) the certificates
evidencing all of the issued and outstanding Capital Stock of Tripod
Data Systems, Inc., an Oregon corporation, which certificates shall be
accompanied by undated instruments of transfer duly executed in blank,
(y) a trademark security agreement, executed by Tripod Data Systems,
Inc. and (z) Exhibits B, C and D to the Security Agreement, updated as
of the Closing Date, and (ii) within ninety (90) days of the Closing
Date, certificates representing 65% of the issued and outstanding
Capital Stock of any Foreign Subsidiary required to be pledged to the
Administrative Agent in accordance with any Loan Document, together
with any applicable instruments of transfer and such other documents,
instruments and agreements required by the applicable jurisdiction to
perfect the Administrative Agent's Lien on such Capital Stock and a
legal opinion from local counsel, in form and substance satisfactory to
the Administrative Agent, with respect thereto, in each case, as such
time may be extended in the sole discretion of the Administrative
Agent.
7.3 Negative Covenants.
(a) Sales of Assets. The Company shall not, nor shall it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or without
recourse or consummate any Asset Sale, except:
(i) transfers of assets to the Company, between the Company and
any Guarantor which is a Domestic Subsidiary or between any
such Guarantors;
(ii) transfers of assets otherwise permitted pursuant to Section
7.3(g);
(iii)sales, assignments, transfers, lease conveyances or other
dispositions of other assets if such transaction (a) is for
not less than fair market value (as determined in good faith
by the Company's chief financial officer), and (b) when
combined with all such other transactions (each such
transaction being valued at book value) and all Sale and
Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period
from the Closing Date to the date of such proposed
transaction, represents the disposition of not greater than
ten percent (10%) of the Company's Consolidated Net Assets
at the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into; and
(iv) transfers of inventory or provisions of services to or from
any Foreign Subsidiary to or from the Company or any other
Subsidiary in the ordinary course of business and consistent
with past practices (each such transfer, a "Foreign
Intercompany Transfer").
(b) Liens. The Company shall not, nor shall it permit any Subsidiary to,
directly or indirectly create, incur, assume or permit to exist a Lien on or
with respect to the Capital Stock of any Subsidiary of the Company. In addition,
the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any of their respective other property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii)Liens with respect to Equipment acquired by the Company or
any of its Subsidiaries after the date hereof pursuant to a
Permitted Acquisition (and not created in contemplation of
such acquisition); provided that such Liens shall extend
only to the property so acquired;
(iv) Liens securing Indebtedness of a Subsidiary to the Company
or to another Guarantor;
(v) Liens securing Indebtedness permitted under Section
7.3(c)(vi); and
(vi) Additional Liens; provided that the Indebtedness secured
thereby does not exceed in the aggregate $10,000,000 (less
the amount of any Indebtedness secured by Liens permitted
under clause (v)).
(c) Indebtedness. The Company shall not, nor shall it permit any Subsidiary
to, cause or permit, directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness;
(iii)Indebtedness arising from intercompany loans and advances
from the Company or any Domestic Subsidiary to any
Subsidiary; provided that (A) such intercompany Indebtedness
shall not be evidenced by any note or similar instrument;
(B) the Company and each applicable Subsidiary shall record
all intercompany transactions on their respective books and
records in an appropriate manner satisfactory to the
Administrative Agent; (C) the obligations of each Subsidiary
with respect to any such intercompany loans shall be
subordinated to any Obligations of such Subsidiary hereunder
in a manner satisfactory to the Administrative Agent; (D) no
Default or Unmatured Default would occur and be continuing
after giving effect to any such proposed intercompany loan;
(E) the aggregate amount outstanding of such intercompany
loans owing by Foreign Subsidiaries shall not exceed
$30,000,000 at any time and (F) such intercompany loans
shall be made in a manner consistent with past practices and
the proceeds of such loans shall be used to fund operating
expenses of the applicable Subsidiary;
(iv) Contingent Obligations to the extent permitted under Section
7.3(d);
(v) Hedging Obligations to the extent permitted under Section
7.3(m);
(vi) Indebtedness with respect to Capital Lease Obligations and
purchase money Indebtedness with respect to real or personal
property in an aggregate amount not to exceed $10,000,000;
(vii)Indebtedness assumed or incurred in connection with
Permitted Acquisitions in an aggregate amount at any time
outstanding not to exceed $5,000,000;
(viii) Indebtedness incurred or arising in connection with
Foreign Intercompany Transfers;
(ix) Indebtedness incurred for the purpose of refinancing any of
the Indebtedness permitted under clause (ii); and
(x) additional Indebtedness in an aggregate amount at any time
outstanding not exceeding $50,000,000 (less any Indebtedness
described in clause (vi) above) of which not more than
$25,000,000 may be incurred by Subsidiaries which are not
Subsidiary Borrowers or Guarantors.
(d) Contingent Obligations. The Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly create or become or be liable with respect
to any Contingent Obligation, except: (i) recourse obligations resulting from
endorsement of negotiable instruments for collection in the ordinary course of
business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, guaranties and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of the Company
or such Subsidiary; (iv) Contingent Obligations of the Subsidiaries of the
Company under the Guaranty to which they are a party, (v) obligations arising
under or related to the Loan Documents; (vi) Contingent Obligations in respect
of Indebtedness permitted by Section 7.3(c) above, and (vii) additional
Contingent Obligations in an aggregate amount not to exceed in the aggregate
five percent (5%) of Consolidated Net Worth at any one time outstanding.
(e) Restricted Payments. The Company shall not, nor shall it permit any
Subsidiary to, make or declare any Restricted Payments (other than Restricted
Payments by a Subsidiary to the Company) except that (i) so long as no Default
or Unmatured Default then exists, the Company may repurchase shares from its
employees, officers or directors pursuant to any vesting provisions with respect
thereto; and (ii) so long as no Default or Unmatured Default then exists, the
Company may make Restricted Payments not to exceed, for any fiscal year, an
aggregate amount equal to twenty-five percent (25%) of Net Income for the
previous fiscal year.
(f) Conduct of Business; Subsidiaries; Acquisitions. The Company shall not,
nor shall it permit any Subsidiary to, engage in any business other than the
businesses engaged in by the Company on the date hereof and any business or
activities which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize any
Subsidiary after the date hereof unless (i) no Default or Unmatured Default
shall have occurred and be continuing or would result therefrom; (ii) after such
creation, acquisition or capitalization, all of the representations and
warranties contained herein shall be true and correct in all material respects
(unless such representation and warranty is made as of a specific date, in which
case, such representation or warranty shall be true as of such date); and (iii)
after such creation, acquisition or capitalization the Company shall be in
compliance with the terms of Section 7.2(k). The Company shall not make any
Acquisitions, other than Acquisitions meeting the following requirements (each
such Acquisition constituting a "Permitted Acquisition"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the
incurrence of any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by
the target company's board of directors (and shareholders,
if necessary) prior to the consummation of the Acquisition;
(iii)if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock
(other than Equity Interests (other than Disqualified Stock)
of the Company) consideration paid and Indebtedness or other
liabilities assumed) exceeds $25,000,000, prior to each such
Acquisition, the Company shall have delivered to the
Administrative Agent and the Lenders a certificate from one
of the Authorized Officers, demonstrating that after giving
effect to such Acquisition, on a pro forma basis in respect
of each such Acquisition as if the Acquisition and such
incurrence of Indebtedness had occurred on the first day of
the twelve-month period ending on the last day of the
Company's most recently completed fiscal quarter, the
Company would have been in compliance with the financial
covenants in Section 7.4 and not otherwise in Default;
(iv) if the purchase price for the Acquisition (excluding
consideration in the form of the Company's Equity Interests
(other than Disqualified Stock)) exceeds, together with all
other Permitted Acquisitions permitted under this Section
7.3(f) during the same fiscal year, $40,000,000 (the
"Permitted Acquisition Basket") (including the incurrence or
assumption of any Indebtedness in connection therewith), the
Required Lenders shall have consented to such Acquisition;
(v) the businesses being acquired shall be similar to that of
the Company and its Subsidiaries as of the Closing Date,
related or incidental thereto or logical extensions thereof;
and
(vi) such Acquisition shall be structured as an asset
acquisition, as an acquisition of one hundred percent (100%)
of the outstanding voting equity securities of the target
company or as a merger permitted hereby.
(g) Investments. Neither the Company nor any of its Subsidiaries shall make
any Investments, except for:
(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor;
(ii) Investments incurred in order to consummate Permitted
Acquisitions otherwise permitted herein;
(iii)Loans giving rise to Indebtedness permitted by Section
7.3(c)(iii);
(iv) Investments made or arising in connection with Foreign
Intercompany Transfers;
(v) Advances to employees for business expenses not to exceed
$1,000,000 in the aggregate outstanding at any one time;
(vi) other loans to employees in the ordinary course of business
not to exceed $5,000,000 in the aggregate outstanding at any
one time;
(vii) Investments in Cash Equivalents;
(viii) Permitted Existing Investments; and
(ix) other Investments; provided that the aggregate amount paid
in cash of such Investments, net of Repatriated Funds over
the term of this Agreement, shall not exceed the sum of (A)
$30,000,000 (based on the initial amount invested) plus (B)
proceeds from Investments permitted hereunder.
(h) Transactions with Shareholders and Affiliates. Neither the Company nor
any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with, or make loans
or advances to, any Affiliate of the Company which is not its Wholly-Owned
Subsidiary, on terms that are less favorable to the Company or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate, except for Restricted Payments permitted by Section 7.3(f).
(i) Restriction on Fundamental Changes. Neither the Company nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Company's consolidated business or property
(each such transaction a "Fundamental Change"), whether now or hereafter
acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b)
or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated
with the Company or any Wholly-Owned Subsidiary of the Company (in which case
the Company or such Wholly-Owned Subsidiary shall be the surviving corporation);
provided that if the predecessor Subsidiary was a Guarantor, the surviving
Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation
of any Subsidiary of the Company into the Company or another Subsidiary of the
Company, as applicable, and (iv) the Company may merge with any other Person, or
any Subsidiary of the Company may consolidate or merge with any other Person;
provided that (A) no Default or Unmatured Default shall exist immediately before
or after giving effect to such Fundamental Change, (B) in the case of any merger
of the Company, the Company is the surviving corporation in such merger and such
merger is with a Person in a line of business substantially similar to that of
the Company and its Subsidiaries as of the Closing Date or any business or
activities which are similar, related or incidental thereto or logical
extensions thereof, and (C) in the case of any merger or consolidation of any
Subsidiary of the Company, the surviving corporation in such Fundamental Change
is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and
if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be
a Guarantor hereunder, and (D) such transaction is with a Person in a line of
business substantially similar to or related to that of the Company and its
Subsidiaries as of the Closing Date or is a logical extension thereof.
(j) Margin Regulations. Neither the Company nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(k) ERISA.
(i) The Company shall not:
(A) engage, or permit any of its Subsidiaries to engage, in any
material prohibited transaction described in Sections 406 of
ERISA or 4975 of the Code for which a statutory or class
exemption is not available or a private exemption has not
been previously obtained from the DOL;
(B) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with
respect to any Benefit Plan, whether or not waived;
(C) fail, or permit any Controlled Group member to fail, to pay
timely required material contributions or annual
installments due with respect to any waived funding
deficiency to any Benefit Plan;
(D) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any
material liability of the Company or any Controlled Group
member under Title IV of ERISA;
(E) fail to make any material contribution or payment to any
Multiemployer Plan which the Company or any Controlled Group
member may be required to make under any agreement relating
to such Multiemployer Plan, or any law pertaining thereto;
(F) permit any unfunded liabilities with respect to any Foreign
Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by
the Company or any member of its Controlled Group and such
annual contributions are not less than the minimum amounts,
if any, required under applicable local law;
(G) fail, or permit any of its Subsidiaries or Controlled Group
members to fail, to pay any required contributions or
payments to a Foreign Pension Plan on or before the due date
for such required installment or payment;
(H) fail, or permit any Controlled Group member to fail, to pay
any required material installment or any other payment
required under Section 412 of the Code on or before the due
date for such installment or other payment; or
(I) amend, or permit any Controlled Group member to amend, a
Plan resulting in a material increase in current liability
for the plan year such that the Company or any Controlled
Group member is required to provide security to such Plan
under Section 401(a)(29) of the Code.
(ii) For purposes of this Section 7.3(k), "material" means any
noncompliance or basis for liability which could reasonably be
expected to subject the Company or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $5,000,000.
(l) Fiscal Year. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the twelve-month period ending on Friday nearest to
December 31 of each year, except as required by Agreement Accounting Principles
or by law and disclosed to the Lenders and the Administrative Agent.
(m) Hedging Obligations. The Company shall not and shall not permit any of
its Subsidiaries to enter into any interest rate, commodity or foreign currency
exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its Subsidiaries has hedged its
actual or anticipated interest rate, foreign currency or commodity exposure.
Such permitted hedging agreements entered into by the Company or its
Subsidiaries and any Lender or any Affiliate of any Lender are sometimes
referred to herein as "Hedging Agreements".
(n) Capital Expenditures. The Company shall not, and shall not permit any
of its Subsidiaries to, make Capital Expenditures in any fiscal year to the
extent that during any fiscal year the aggregate amount of Capital Expenditures
for the Company and its Subsidiaries would exceed $15,000,000, excluding any
amount attributable to a Permitted Acquisition (the "Capital Expenditures
Limit"). Notwithstanding the foregoing, in the event that the Company and its
Subsidiaries do not expend the entire Capital Expenditures Limit for any fiscal
year, the Company and its Subsidiaries may carry forward to the immediately
succeeding fiscal year the unutilized portion of such Capital Expenditures
Limit.
(o) Restrictive Agreements. Other than (x) customary provisions in licenses
or similar agreements that restrict the ability of the Company or its
Subsidiaries to assign, transfer, license or sublicense any intellectual
property subject to such license or agreement and (y) negative pledge provisions
in Equipment financing agreements which restrict only Liens on the Equipment
subject to such agreement together with any accessions, additions, replacements
or proceeds of such Equipment, the Company shall not, nor shall it permit any of
its Subsidiaries to, enter into any indenture, agreement, instrument or other
arrangement which directly or indirectly prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the ability of the Company or any Subsidiary to create Liens upon their
assets securing the Obligations or of any Subsidiary to (i) pay dividends or
make other distributions or Restricted Payments (A) on its Capital Stock or (B)
with respect to any other interest or participation in, or measured by, its
profits, (ii) make loans or advances to or other investments in the Company or
any Subsidiary, (iii) repay loans or advances from the Company or any Subsidiary
or (iv) transfer any of its properties to the Company or any Subsidiary.
7.4 Financial Covenants.
(a) Minimum Fixed Charge Coverage Ratio. The Company shall maintain as of
the end of each fiscal quarter a Fixed Charge Coverage Ratio for the four fiscal
quarter period then ending of not less than 1.50:1:00.
(b) Maximum Leverage Ratio. The Company shall at all times during the
periods specified below maintain a Leverage Ratio for the four fiscal quarter
period then ending of not greater than the ratio set forth below opposite such
period:
Fiscal Quarter Ending Leverage Ratio
---------------------------------------------------------------
April 1, 2003 through December 31, 2003 3.00:1:00
January 1, 2004 through June 30, 2004 2.75:1.00
July 1, 2004 through December 31, 2004 2.50:1.00
January 1, 2005 through December 31, 2005 2.25:1.00
January 1, 2006 and thereafter 2.00:1.00
(c) Minimum Consolidated Net Worth. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (i) $178,024,850
plus (ii) fifty percent (50%) of Net Income (if positive) calculated separately
for each subsequent quarterly accounting period, in each case, excluding changes
in cumulative foreign exchange translation adjustment, plus (iii) the aggregate
amount of all Equity Interests issued after the Closing Date.
ARTICLE VIII
DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a Default
under this Agreement:
(a) Failure to Make Payments When Due. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations consisting of
principal with respect to any Loan or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(b) Breach of Certain Covenants. The Company or any Subsidiary Borrower
shall fail duly and punctually to perform or observe any agreement, covenant or
obligation binding on it under:
(i) Sections 7.1(b), 7.1(c), 7.1(f), 7.1(i), 7.2(j), 7.2(k), 7.2(l),
7.3 or 7.4 or
(ii) any section of this Agreement or any other Loan Document not
covered by Section 8.1(a), 8.1(b)(i) or 8.1(m) and such failure
shall continue unremedied for thirty (30) days after the
occurrence thereof.
(c) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents or in
any statement or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false in any material respect on
the date as of which made or deemed made.
(d) Default as to Other Indebtedness. The Company or any of its
Subsidiaries shall fail to pay when due any Indebtedness in excess of $5,000,000
(any such Indebtedness being "Material Indebtedness"); or the Company or any of
its Subsidiaries shall fail to perform (beyond the applicable grace period with
respect thereto, if any) any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created or is governed,
or any other event shall occur or condition exist, the effect of which default
or event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof.
(e) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company or any
of the Company's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45)
days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company or any of the Company's
Subsidiaries in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over
the Company or any of the Company's Subsidiaries or over all or a
substantial part of the property of the Company or any of the
Company's Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Company or any of the Company's
Subsidiaries or of all or a substantial part of the property of
the Company or any of the Company's Subsidiaries shall be
appointed or a warrant of attachment, execution or similar
process against any substantial part of the property of the
Company or any of the Company's Subsidiaries shall be issued and
any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment
or issuance.
(f) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company or any
of the Company's Subsidiaries shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such
law, (iii) consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(g) Judgments and Attachments. Any money judgment(s) writ or warrant of
attachment, or similar process against the Company or any Domestic Subsidiary or
any of their respective assets involving in any single case or in the aggregate
an amount in excess of $5,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed
sale thereunder.
(h) Dissolution. Any order, judgment or decree shall be entered against the
Company or any Domestic Subsidiary decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of forty-five (45) days; or the Company or any Domestic Subsidiary shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(i) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to liability in
excess of $5,000,000 or the Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $10,000,000.
(j) Waiver of Minimum Funding Standard. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Administrative Agent or
the Required Lenders believe the substantial business hardship upon which the
application for the waiver is based could reasonably be expected to subject
either the Company or any Controlled Group member to liability in excess of
$5,000,000.
(k) Change of Control. A Change of Control shall occur.
(l) Guarantor Revocation. Any Guaranty shall fail to remain in full force
or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect; in each
case other than a Guarantor's ceasing to be a Subsidiary Borrower pursuant to
Section 2.21 hereof or the disposition of such Guarantor in any transaction
permitted by Section 7.3(a) hereof.
(m) Collateral Documents. Any Collateral Documents shall fail to remain in
full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Collateral Document, or any "Default"
or "Unmatured Default" shall occur under and as defined in any Collateral
Document or shall deny, or give notice to such effect, that it has any further
liability under such Collateral Document or any Collateral Document shall for
any reason fail to create a valid and perfected, first priority security
interest in any collateral purported to be covered thereby, except as permitted
by the terms of such Collateral Document.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.2.
ARTICLE IX
ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration. If any Default
described in Section 8.1(e) or 8.1(f) occurs with respect to the Company or any
Subsidiary Borrower, the obligations of the Lenders to make Loans hereunder and
the obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders, or the
Administrative Agent acting at the direction of the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder and
the obligation of the Issuing Banks to issue Letters of Credit hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers expressly
waive.
9.2 Amendments. Subject to the provisions of this Article IX, the Required
Lenders (or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrowers hereunder or waiving
any Default or Unmatured Default hereunder; provided that no such supplemental
agreement shall, without the consent of each Lender directly affected thereby:
(a) Postpone or extend the Revolving Loan Termination Date, the Term Loan
Maturity Date or any other date scheduled for any payment of principal of, or
interest on, the Loans, the Reimbursement Obligations or any fees or other
amounts payable to such Lender (except with respect to a waiver of the
application of the default rate of interest pursuant to Section 2.12 hereof).
(b) Reduce the principal amount of any Loans or L/C Obligations, or reduce
the rate or extend the time of payment of interest or fees thereon.
(c) Reduce the percentage specified in the definition of Required Lenders
or any other percentage of Lenders hereunder specified to be the applicable
percentage in this Agreement to act on specified matters or amend the
definitions of "Required Lenders", "Pro Rata Revolving Share", "Pro Rata Share"
or "Pro Rata Term Share".
(d) Increase the amount of the Revolving Loan Commitment of any Lender
hereunder.
(e) Permit the Company or any Subsidiary Borrower to assign its rights
under this Agreement or any Guaranty.
(f) Release the Company or any Guarantor from any of its obligations under
the Guaranty set forth in Article X hereof or any other Guaranty.
(g) Amend this Section 9.2.
(h) Release all or a substantial portion of the collateral pledged pursuant
to the Collateral Documents (except as expressly provided therein).
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) any Issuing Bank shall be effective without the
written consent of such Issuing Bank and (c) any Swing Line Loan shall be
effective without the written consent of the Swing Line Bank. The Administrative
Agent may waive payment of the fee required under Section 14.3(b) without
obtaining the consent of any of the Lenders.
9.3 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Company or
any other Borrower to satisfy the conditions precedent to such Loan or issuance
of such Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to Section 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X
GUARANTY
10.1 Guaranty. For valuable consideration, the receipt of which is hereby
acknowledged, and to induce the Lenders to make advances to each Subsidiary
Borrower and to make, issue and participate in Letters of Credit and Swing Line
Loans, the Company hereby absolutely and unconditionally guarantees prompt
payment when due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter, of any and all existing and future obligations
including without limitation the Obligations, of each Subsidiary Borrower to the
Administrative Agent, the Lenders, the Swing Line Bank, the Issuing Lenders, or
any of them, under or with respect to the Loan Documents, whether for principal,
interest (including interest accruing after the commencement of any bankruptcy
insolvency or similar proceeding whether or not allowed as a claim in such
proceeding), fees, expenses or otherwise (collectively, the "Guaranteed
Obligations", and each such Subsidiary Borrower being an "Obligor" and
collectively, the "Obligors").
10.2 Waivers. The Company waives notice of the acceptance of this Guaranty
and of the extension or continuation of the Guaranteed Obligations or any part
thereof. The Company further waives presentment, protest, notice of notices
delivered or demand made on any Obligor or action or delinquency in respect of
the Guaranteed Obligations or any part thereof, including any right to require
the Administrative Agent and the Lenders to ▇▇▇ any Obligor, any other guarantor
or any other Person obligated with respect to the Guaranteed Obligations or any
part thereof, or otherwise to enforce payment thereof against any collateral
securing the Guaranteed Obligations or any part thereof. The Administrative
Agent and the Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the Obligors.
10.3 Guaranty Absolute. This Guaranty is a guaranty of payment and not of
collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this Guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this Guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
Guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this Guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
Guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent's
or any Lender's election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion any Lender's claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor; all whether or not the Company shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (n) of this paragraph. It is agreed that the Company's liability
hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that the Company's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Obligor of the
Guaranteed Obligations in the manner agreed upon between the Obligor and the
Administrative Agent and the Lenders.
10.4 Acceleration. The Company agrees that, as between the Company on the
one hand, and the Lenders and the Administrative Agent, on the other hand, the
obligations of each Obligor guaranteed under this Article X may be declared to
be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.1 hereof for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this Article X.
10.5 Marshaling; Reinstatement. None of the Lenders nor the Administrative
Agent nor any Person acting for or on behalf of the Lenders or the
Administrative Agent shall have any obligation to ▇▇▇▇▇▇▇▇ any assets in favor
of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any other Borrower or any other Guarantor of all or
any part of the Guaranteed Obligations makes a payment or payments to any Lender
or the Administrative Agent, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, the Company, such other Guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6 Subrogation. Until the irrevocable payment in full of the Obligations
and termination of all commitments which could give rise to any Guaranteed
Obligation, the Company shall have no right of subrogation with respect to the
Guaranteed Obligations, and hereby waives any right to enforce any remedy which
the Administrative Agent and/or the Lenders now has or may hereafter have
against the Company, any endorser or any other guarantor of all or any part of
the Guaranteed Obligations, and the Company hereby waives any benefit of, and
any right to participate in, any security or collateral given to the
Administrative Agent and/or the Lenders to secure payment of the Guaranteed
Obligations or any part thereof or any other liability of any Obligor to the
Administrative Agent and/or the Lenders.
10.7 Termination Date. Subject to Section 10.5, this Guaranty shall
continue in effect until the later of (a) the Facility Termination Date, and (b)
the date on which this Agreement has otherwise expired or been terminated in
accordance with its terms and all of the Guaranteed Obligations have been paid
in full in cash.
ARTICLE XI
GENERAL PROVISIONS
11.1 Survival of Representations. All representations and warranties of the
Borrowers contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
11.4 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than the Fee Letter.
11.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. Any obligation of "the Borrowers"
hereunder shall be the joint and several obligation of the Borrowers. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns.
11.6 Expenses; Indemnification.
(a) Expenses. The Borrowers shall reimburse the Administrative Agent for
any reasonable costs and out-of-pocket expenses (including reasonable attorneys'
and paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent, Issuing Banks and Swing Line Bank) paid or incurred by the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, proposed or completed amendment, waiver or
modification, and administration of the Loan Documents. The Borrowers also agree
to reimburse the Administrative Agent, the Arranger and each of the Lenders for
any costs and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent, the Arranger and each Lender, which attorneys and
paralegals may be employees of the Administrative Agent, the Arranger, or the
Lenders) paid or incurred by the Administrative Agent, the Arranger or any
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents. The Administrative Agent shall provide the Borrowers with a
detailed statement of all reimbursements requested under this Section 11.6(a).
(b) Indemnity. The Borrowers hereby further agree to indemnify the
Administrative Agent, the Arranger, the Issuing Banks and each and all of the
Lenders and each of their respective Affiliates, and each of the Administrative
Agent's, Arranger's, Issuing Bank's, Lender's and Affiliate's directors,
officers, employees, attorneys and agents (all such persons, "Indemnitees")
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not such Indemnitee is a party thereto) which
any of them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification.
(c) Waiver of Certain Claims. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(d) Survival of Agreements. The obligations and agreements of the Borrowers
under this Section 11.6 shall survive the termination of this Agreement.
11.7 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.8 Accounting. Except with respect to the pricing grid calculations in
Section 2.15 and the financial covenant calculations in Section 7.4, both of
which shall be made in accordance with Agreement Accounting Principles as in
effect on the date hereof, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with
generally accepted accounting principles as in effect from time to time,
consistently applied.
11.9 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
11.10 Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers or the Guarantors. Neither the Administrative
Agent nor any Lender undertakes any responsibility to any Borrower or Guarantor
to review or inform any Borrower or Guarantor of any matter in connection with
any phase of the Borrowers' business or operations.
11.11 GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b) BELOW,
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, BUT THE PARTIES
HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWERS (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON OR (3) FORECLOSE ON COLLATERAL LOCATED IN SUCH
JURISDICTION. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON
ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN FAVOR OF SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION (b).
(c) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(d) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 11.6 AND THIS SECTION 11.12, WITH ITS COUNSEL.
11.13 Other Transactions. Each of the Administrative Agent, the Arranger,
the Lenders, the Issuing Banks, the Swing Line Bank and the Borrowers
acknowledge that the Administrative Agent and the Lenders (or Affiliates of the
Administrative Agent and the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with the Administrative Agent may from time to
time provide other financial services and products to the Company and its
Subsidiaries.
ARTICLE XII
THE ADMINISTRATIVE AGENT
12.1 Appointment; Nature of Relationship. BNS is appointed by the Lenders
as the Administrative Agent hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Administrative Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article XII. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Holder
of Obligations by reason of this Agreement and that the Administrative Agent is
merely acting as the representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not assume any fiduciary duties to any of the Holders of Obligations,
(ii) is a "representative" of the Holders of Obligations within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders, for itself and on behalf of its Affiliates as Holders of Obligations,
agrees to assert no claim against the Administrative Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Holder of Obligations waives.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Person.
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document; (c) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered solely to the Administrative Agent; (d) the existence
or possible existence of any Default or (e) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or in
any of the other Loan Documents, or for the execution, effectiveness,
genuineness, validity, legality, enforceability, collectibility, or sufficiency
of this Agreement or any of the other Loan Documents or the transactions
contemplated thereby, or for the financial condition of any guarantor of any or
all of the Obligations, the Company or any of its Subsidiaries.
12.5 Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all of the Lenders in the event that and to the
extent that this Agreement expressly requires such), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all owners of Loans and on all Holders of Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
12.6 Employment of Agents and Counsel. The Administrative Agent may execute
any of its duties as the Administrative Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Administrative Agent and the Lenders and all matters pertaining to
the Administrative Agent's duties hereunder and under any other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 The Administrative Agent's, Issuing Banks' and Swing Line Bank's
Reimbursement and Indemnification.
(a) The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Pro Rata Shares to the extent not
reimbursed by the Borrowers or from the Collateral (i) for any expenses incurred
by the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (ii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents; provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of the Administrative Agent.
(b) The Lenders with a Revolving Loan Commitment agree to reimburse and
indemnify the Administrative Agent, the Issuing Banks and the Swing Line Bank
ratably in proportion to their respective Pro Rata Revolving Shares to the
extent not reimbursed by the Borrowers or from the Collateral (and without
duplication of clause (a) above) (i) any amounts not reimbursed by any Borrower
for which the Administrative Agent, the Issuing Banks and the Swing Line Bank
are entitled to reimbursement by any Borrower under the Loan Documents, (ii) for
any other expenses incurred by the Administrative Agent, any Issuing Bank or the
Swing Line Bank on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent, any Issuing Bank or the Swing Line Bank in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents; provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct of
the Administrative Agent, the applicable Issuing Bank or the Swing Line Bank.
12.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
Loans made by it, Swing Line Loans made by it and Letters of Credit issued by
it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender or Issuing Bank and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders", "Swing Line Bank", "Issuing Bank" or "Issuing Banks" shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Company or any of its Subsidiaries in which such Person
is not prohibited hereby from engaging with any other Person.
12.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
12.11 Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Company.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Borrowers and the Lenders, a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Such successor Administrative Agent
shall be a Lender or commercial bank having capital and retained earnings of at
least $500,000,000. Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
12.12 No Duties Imposed Upon Co-Syndication Agents, Co-Documentation Agents
or Arranger. None of the Persons identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreement as
"Co-Syndication Agent", "Co-Documentation Agent" or "Arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, (a) expressly granted indemnification rights and (b) if such Person
is a Lender, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Persons identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreements as
"Co-Syndication Agent", "Co-Documentation Agent" or "Arranger" shall have or be
deemed to have any fiduciary duty to or fiduciary relationship with any Lender.
In addition to the agreements set forth in Section 12.10, each of the Lenders
acknowledges that it has not relied, and will not rely, on any of the Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
12.13 Collateral Agent. The Lenders agree that the Administrative Agent
may, on their behalf, appoint a Collateral Agent under the Mortgages with
respect to real estate located in the State of Ohio and related title insurance,
surveys and other documentation. All references to the "Administrative Agent" in
Article XII shall also be deemed to be references to the Collateral Agent.
ARTICLE XIII
SETOFF; RATABLE PAYMENTS
13.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, subject
to the prior consent of the Administrative Agent, any Indebtedness from any
Lender to the Company or any other Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
13.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4 and payments expressly hereunder provided to be
distributed on other than a pro rata basis or payments made and distributed in
accordance with Section 2.12) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 Application of Payments. The Administrative Agent shall apply all
payments and prepayments in respect of any Obligations in the following order:
first, to pay interest on and then principal of any portion of the Loans
which the Administrative Agent may have advanced on behalf of any Lender for
which the Administrative Agent has not then been reimbursed by such Lender or
the applicable Borrower and to pay any Swing Line Loan or Reimbursement
Obligation that has not been paid;
second, to the ratable payment of the Obligations then due and payable;
and third, to the ratable payment of all other Obligations.
13.4 Relations Among Lenders. The Lenders are not partners or co-venturers,
and no Lender shall be liable for the acts or omissions of, or (except as
otherwise set forth herein in case of the Administrative Agent) authorized to
act for, any other Lender.
ARTICLE XIV
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrowers and the Lenders
and their respective successors and assigns, except that (a) no Borrower shall
have any right to assign its rights or obligations under the Loan Documents
without the consent of all of the Lenders, and any such assignment in violation
of this Section 14.1(a) shall be null and void, and (b) any assignment by any
Lender must be made in compliance with Section 14.3 hereof. Notwithstanding
clause (b) of this Section 14.1 or Section 14.3, (i) any Lender may at any time,
without the consent of any Borrower or the Administrative Agent (unless a
Default or Unmatured Default has occurred and is continuing, in which case the
consent of the Administrative Agent shall be required, which consent shall not
unreasonably be withheld), assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank and (ii) any Lender which is a fund or
commingled investment vehicle that invests in commercial loans in the ordinary
course of its business may at any time, without the consent of any Borrower or
the Administrative Agent (unless a Default or Unmatured Default has occurred and
is continuing, in which case the consent of the Administrative Agent shall be
required, which consent shall not unreasonably be withheld), pledge or assign
all or any part of its rights under this Agreement to a trustee or other
representative of holders of obligations owed or securities issued by such
Lender as collateral to secure such obligations or securities; provided that no
such assignment or pledge shall release the transferor Lender from its
obligations hereunder. The Administrative Agent may treat each Lender as the
owner of the Loans made by such Lender hereunder for all purposes hereof unless
and until such Lender complies with Section 14.3 hereof in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Loan, Revolving Loan Commitment, L/C Interest or any other interest of a
lender under the Loan Documents agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of any Loan, shall be conclusive and binding
on any subsequent owner, transferee or assignee of such Loan.
14.2 Participations.
(a) Permitted Participants; Effect. Subject to the terms set forth in this
Section 14.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan Documents on a pro
rata or non-pro rata basis. Notice of such participation to the Administrative
Agent shall be required prior to any participation becoming effective with
respect to a Participant which is not a Lender or an Affiliate thereof. Upon
receiving said notice, the Administrative Agent shall record the participation
in the Register it maintains. Moreover, notwithstanding such recordation, such
participation shall not be considered an assignment under Section 14.3 and such
Participant shall not be considered a Lender. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of all Loans made by it for all purposes
under the Loan Documents, all amounts payable by the applicable Borrower under
this Agreement shall be determined as if such Lender had not sold such
participating interests, and the applicable Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except that,
for purposes of Article IV and Section 9.2, the Participants shall be entitled
to the same rights as if they were Lenders.
(b) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan, Letter of Credit or Revolving Loan Commitment
in which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment.
14.3 Assignments.
(a) Permitted Assignments. (i) Any Lender (each such assigning Lender under
this Section 14.3 being an "Assigning Lender") may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities (other than the Company or any of its Affiliates)
("Purchasers") all or a portion of its rights and obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment, any
Loans owing to it, all of its participation interests in existing Letters of
Credit and Swing Line Loans, and its obligation to participate in additional
Letters of Credit and Swing Line Loans hereunder) in accordance with the
provisions of this Section 14.3; provided that any assignments of Revolving
Loans and Revolving Loan Commitments shall be made pro rata with participations
in Letters of Credit and Swing Line Loans, and shall require the consent of the
Issuer and the Swing Line Lender. Such assignment shall be substantially in the
form of Exhibit C hereto and shall not be permitted hereunder unless such
assignment is either for all of such Assigning Lender's rights and obligations
under the Loan Documents or, without the prior written consent of the
Administrative Agent and the Company, involves loans and commitments as a
consequence of which neither the Assigning Lender nor the Purchaser will have a
Revolving Loan Commitment and Term Loans, collectively, of less than $3,000,000;
provided that the foregoing restrictions with respect to such Revolving Loan
Commitments or Term Loans having a minimum aggregate amount (A) shall not apply
to any assignment between Lenders, or to an Affiliate or Approved Fund of any
Lender, and (B) in any event may be waived by the Administrative Agent. The
written consent of the Administrative Agent, and, prior to the occurrence of a
Default, the Company (which consent, in each such case, shall not be
unreasonably withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate or
Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein, any Lender
(each such Lender, a "Granting Bank") may grant to a special purpose
funding vehicle (each such special purpose funding vehicle, a "SPC"),
identified as such in writing from time to time by the applicable
Granting Bank to the Administrative Agent and the Company, the option
to provide to the Company and the other Borrowers all or any part of
any Advance that such Granting Bank would otherwise be obligated to
make to the applicable Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to
make any Advance, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the
applicable Granting Bank shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by any SPC
hereunder shall utilize the Revolving Loan Commitment of the
applicable Granting Bank to the same extent, and as if, such Advance
were made by such Granting Bank. Each party hereto hereby agrees that
no SPC shall be liable for any indemnity or other similar payment
obligation under this Agreement (all liability for which shall remain
with the applicable Granting Bank). All notices hereunder to any
Granting Bank or the related SPC, and all payments in respect of the
Obligations due to such Granting Bank or the related SPC, shall be
made to such Granting Bank. In addition, each Granting Bank shall vote
as a Lender hereunder without giving effect to any assignment under
this Section 14.3(a)(ii), and not SPC shall have any vote as a Lender
under this Agreement for any purpose. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any
State thereto. In addition, notwithstanding anything to the contrary
contained in this Section 14.3, any SPC may (A) with notice to, but
without the prior written consent of, the Company and the
Administrative Agent and without paying any processing or
administrative fee therefor, assign all or a portion of its interest
in any Advances to the Granting Bank or to any financial institutions
(consented to by the Company and the Administrative Agent in
accordance with the terms of Section 14.3(a)(i)) providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of Advances and (B) disclose on a confidential
basis any non-public information relating to its Advances to any
rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section
14.3(a)(ii) may not be amended without the written consent of each SPC
affected thereby.
(b) Effect; Effective Date. Upon (i) delivery to the Administrative Agent
of a notice of assignment, substantially in the form attached as Appendix I to
Exhibit C hereto (a "Notice of Assignment"), together with any consent required
by Section 14.3(a), (ii) payment of a $3,500 fee by the assignee or the assignor
(as agreed) to the Administrative Agent for processing such assignment, and
(iii) the completion of the recording requirements in Section 14.3(c), such
assignment shall become effective on the later of such date when the
requirements in clauses (i), (ii), and (iii) are met or the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Revolving Loan Commitment, Loans and L/C
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by any Borrower, the
Lenders or the Administrative Agent shall be required to release the Assigning
Lender with respect to the percentage of the Aggregate Revolving Loan
Commitment, Loans and Letter of Credit and Swing Line Loan participations
assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 14.3(b), the Assigning Lender, the
Administrative Agent and the Borrowers shall make appropriate arrangements so
that, to the extent notes have been issued to evidence any of the transferred
Loans, replacement notes are issued to such Assigning Lender and new notes or,
as appropriate, replacement notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Revolving Loan Commitment, as adjusted
pursuant to such assignment. Notwithstanding anything to the contrary herein, no
Borrower shall, at any time, be obligated to pay under Section 2.14(e) to any
Lender that is a Purchaser, assignee or transferee any sum in excess of the sum
which such Borrower would have been obligated to pay to the Lender that was the
Assigning Lender, assignor or transferor had such assignment or transfer not
been effected.
(c) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and the
Administrative Agent hereby accepts such designation, to serve as such
Borrower's contractual representative solely for purposes of this Section
14.3(c). In this connection, the Administrative Agent shall maintain at its
address referred to in Section 15.1 a copy of each assignment delivered to and
accepted by it pursuant to this Section 14.3 and a register (the "Register") for
the recordation of the names and addresses of the Lenders, the Revolving Loan
Commitment of each Lender, the principal amount of and interest on the Loans
owing to, each Lender from time to time and whether such Lender is an original
Lender or the assignee of another Lender pursuant to an assignment under this
Section 14.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Company and each of its
Subsidiaries, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by any Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
14.4 Confidentiality. Subject to Section 14.5, the Administrative Agent and
the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Company; provided that each prospective Transferee
shall be required to agree that if it does not become a participant or assignee
it shall return all materials furnished to it by or on behalf of the Company in
connection with this Agreement.
14.5 Dissemination of Information. Each Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV
NOTICES
15.1 Giving Notice. Except as otherwise permitted by Section 2.10(d) with
respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 Change of Address. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
15.3 Authority of Company. Each of the Subsidiary Borrowers, by its
execution hereof or of an Assumption Letter (a) irrevocably authorizes the
Company, on behalf of such Subsidiary Borrower, to give and receive all notices
under the Loan Documents and to make all elections under the Loan Documents and
to give all Borrowing/Conversion/Continuation Notices on its behalf, (b) agrees
to be bound by any such notices or elections and (c) agrees that the
Administrative Agent and Lenders may rely upon any such policies or elections as
if they had been given or made by such Subsidiary Borrower.
ARTICLE XVI
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
[Signature page to Credit Agreement]
IN WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent have executed this Agreement as of the date first
above written.
▇▇▇▇▇▇▇ NAVIGATION LIMITED,
as the Company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Issuing Bank, Swing Line
Bank and a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
Address: The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK,
as a Co-Syndication Agent and as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Co-Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Duly Authorized Signatory
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
UNION BANK OF CALIFORNIA,
as a Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address:
▇▇▇▇▇ FARGO BANK,
as a Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇▇ Fargo Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ BANK, N.A.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇.▇. ▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ALLIED IRISH BANKS, p.l.c.
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VP
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NORDEA BANK FINLAND PLC, NEW YORK
as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BANK OF AMERICA,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ANNEX I
LOAN COMMITMENTS AND AMOUNTS
Amount of Revolving Total Commitment/
Lender Loan Commitment Term Loan Commitment Loans
The Bank of Nova Scotia $19,642,857.14 $10,714,285.72 $30,357,142.86
Fleet National Bank $17,857,142.86 $ 7,142,857.14 $25,000,000.00
GE Capital $17,857,142.86 $ 7,142,857.14 $25,000,000.00
Union Bank of California, N.A. $17,857,142.86 $ 7,142,857.14 $25,000,000.00
▇▇▇▇▇ Fargo Bank $17,857,142.86 $ 7,142,857.14 $25,000,000.00
Nordea Bank Finland PLC, New York Branch $10,714,285.71 $ 4,285,714.29 $15,000,000.00
Bank of America, N.A. $ 8,928,571.43 $ 3,571,428.57 $12,500,000.00
US Bank, N.A. $ 7,142,857.14 $ 2,857,142.86 $10,000,000.00
Allied Irish Bank $ 7,142,857.14 $ 0.00 $ 7,142,857.14
TOTAL $125,000,000.00 $50,000,000.00 $175,000,000.00
=============== ============== ===============