EXHIBIT 10.27
[CONFORMED COPY:
AMENDMENTS NO. 1 AND NO. 2]
REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
BY AND AMONG
▇▇▇▇▇ CORPORATION,
▇▇▇▇▇ FINANCIAL CO.,
AND
THE LENDERS PARTY HERETO
AND
PNC BANK, NATIONAL ASSOCIATION, AS AGENT
DATED AS OF SEPTEMBER 23, 1999
[AMENDMENT NO. 1 DATED AS OF JANUARY 31, 2000]
[AMENDMENT NO. 2 DATED AS OF OCTOBER 31, 2001]
TABLE OF CONTENTS
Section Page
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1. CERTAIN DEFINITIONS...................................................................................1
1.1 Certain Definitions........................................................................1
1.2 Construction..............................................................................21
1.2.1 Number; Inclusion.....................................................................21
1.2.2 Determination.........................................................................21
1.2.3 Agent's Discretion and Consent........................................................21
1.2.4 Documents Taken as a Whole............................................................21
1.2.5 Headings..............................................................................21
1.2.6 Implied References to this Agreement..................................................21
1.2.7 Persons...............................................................................22
1.2.8 Modifications to Documents............................................................22
1.2.9 From, To and Through..................................................................22
1.2.10 Shall; Will...........................................................................22
1.3 Accounting Principles.....................................................................22
2. REVOLVING CREDIT AND SWING LOAN FACILITIES...........................................................22
2.1 Revolving Credit Commitments..............................................................22
2.1.1 Revolving Credit Loans................................................................22
2.1.2 Swing Loan Commitment.................................................................23
2.2 Nature of Lenders' Obligations with Respect to Revolving Credit Loans.....................23
2.3 Commitment Fees...........................................................................23
2.4. Reduction of Commitment; Increase in Commitments..........................................24
2.4.1 Reduction of Commitment...............................................................24
2.4.2 Increase in Commitments...............................................................24
2.5 Revolving Credit Loan Requests; Swing Loan Requests.......................................24
2.5.1 Revolving Credit Loan Requests........................................................24
2.5.2 Swing Loan Requests...................................................................25
2.6 Making Revolving Credit Loans and Swing Loans; Revolving Credit Notes and
Swing Notes...............................................................................26
2.6.1 Making Revolving Credit Loans.........................................................26
2.6.2 Making Swing Loans....................................................................26
2.7 Evidence of Revolving Credit Obligations..................................................26
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2.8 Evidence of Swing Loan Obligations........................................................26
2.9 Promissory Notes..........................................................................26
2.10 Use of Proceeds...........................................................................27
2.11 Borrowings to Repay Swing Loans...........................................................27
2.12 Utilization of Commitments in Optional Currencies.........................................27
2.12.1 Periodic Computations of Dollar Equivalent Amounts of Loans and Letters of Credit
Outstanding...........................................................................27
2.12.2 Notices From Lenders That Optional Currencies Are Unavailable to Fund New Loans.......27
2.12.3 Notices From Lenders That Optional Currencies Are Unavailable to Fund Renewals of the
Loan Euro-Rate Option.................................................................28
2.12.4 Requests for Additional Optional Currencies...........................................28
2.13 Letter of Credit Subfacility..............................................................29
2.13.1 Issuance of Letters of Credit.........................................................29
2.13.2 Letter of Credit Fees.................................................................29
2.13.3 Disbursements, Reimbursement..........................................................30
2.13.4 Repayment of Participation Advances...................................................31
2.13.5 Documentation.........................................................................31
2.13.6 Determinations to Honor Drawing Requests..............................................32
2.13.7 Nature of Participation and Reimbursement Obligations.................................32
2.13.8 Indemnity.............................................................................33
2.13.9 Liability for Acts and Omissions......................................................33
2.13.10 Notice of Actual Issuances............................................................34
2.13.11 Proposed Extension of Expiry Dates....................................................34
2.13.12 Information to be Provided to Agent...................................................35
2.14 Currency Repayments.......................................................................35
2.15 Optional Currency Amounts.................................................................35
3. INTEREST RATES.......................................................................................35
3.1 Interest Rate Options.....................................................................35
3.1.1 Interest Rate Options.................................................................36
3.1.2 Rate Quotations.......................................................................37
3.1.3 Change in Fees or Interest Rates......................................................37
3.2 Interest Periods..........................................................................37
3.2.1 Ending Date and Business Day..........................................................37
3.2.2 Amount of Borrowing Tranche...........................................................37
3.2.3 Termination Before Expiration Date....................................................38
3.2.4 Renewals..............................................................................38
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3.3 Interest After Default....................................................................38
3.3.1 Letter of Credit Fees, Interest Rate..................................................38
3.3.2 Other Obligations.....................................................................38
3.3.3 Acknowledgment........................................................................38
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available............38
3.4.1 Unascertainable.......................................................................38
3.4.2 Illegality; Increased Costs; Deposits Not Available...................................38
3.4.3 Agent's and Lender's Rights...........................................................39
3.5 Selection of Interest Rate Options; Selection of Optional Currency........................40
4. PAYMENTS.............................................................................................40
4.1 Payments..................................................................................40
4.2 Pro Rata Treatment of Lenders.............................................................40
4.3 Interest Payment Dates....................................................................41
4.4 Voluntary Prepayments.....................................................................41
4.4.1 Right to Prepay.......................................................................41
4.4.2 Replacement of a Lender...............................................................42
4.4.3 Change of Lending Office..............................................................42
4.5 Mandatory Prepayments.....................................................................43
4.5.1 Currency Fluctuations.................................................................43
4.5.2 Application Among Interest Rate Options...............................................43
4.6 Additional Compensation in Certain Circumstances..........................................43
4.6.1 Increased Costs or Reduced Return Resulting from Taxes, Reserves......................43
4.6.2 Indemnity.............................................................................44
4.7 Interbank Market Presumption..............................................................45
4.8 Taxes.....................................................................................45
4.8.1 No Deductions.........................................................................45
4.8.2 Stamp Taxes...........................................................................45
4.8.3 Indemnification for Taxes Paid by a Lender............................................46
4.8.4 Certificate...........................................................................46
4.8.5 Survival..............................................................................46
4.9 Judgment Currency.........................................................................46
4.9.1 Currency Conversion Procedures for Judgments..........................................46
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4.9.2 Indemnity in Certain Events...........................................................46
4.10 Settlement Date Procedures................................................................46
5. REPRESENTATIONS AND WARRANTIES.......................................................................47
5.1 Representations and Warranties............................................................47
5.1.1 Organization and Qualification........................................................47
5.1.2 Capitalization and Ownership..........................................................47
5.1.3 Subsidiaries..........................................................................48
5.1.4 Power and Authority...................................................................48
5.1.5 Validity and Binding Effect...........................................................48
5.1.6 No Conflict...........................................................................48
5.1.7 Litigation............................................................................49
5.1.8 Title to Properties...................................................................49
5.1.9 Financial Statements..................................................................49
5.1.10 Use of Proceeds; Margin Stock; Section 20 Subsidiaries................................50
5.1.11 Full Disclosure.......................................................................50
5.1.12 Taxes.................................................................................50
5.1.13 Consents and Approvals................................................................51
5.1.14 No Event of Default; Compliance with Instruments......................................51
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc........................................51
5.1.16 Insurance.............................................................................51
5.1.17 Compliance with Laws..................................................................51
5.1.18 Material Contracts; Burdensome Restrictions...........................................52
5.1.19 Investment Companies; Regulated Entities..............................................52
5.1.20 Plans and Benefit Arrangements........................................................52
5.1.21 Employment Matters....................................................................53
5.1.22 Environmental Matters.................................................................53
5.1.23 Senior Debt Status....................................................................53
5.1.24 Year 2000.............................................................................54
5.2 Continuation of Representations...........................................................54
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT..............................................54
6.1 First Loans and Letters of Credit.........................................................54
6.1.1 Officer's Certificate.................................................................54
6.1.2 Secretary's Certificate...............................................................54
6.1.3 Opinion of Counsel....................................................................55
6.1.4 Legal Details.........................................................................55
6.1.5 Payment of Fees.......................................................................55
6.1.6 Consents..............................................................................55
6.1.7 Officer's Certificate Regarding ▇▇▇▇..................................................55
6.1.8 No Violation of Laws..................................................................56
6.1.9 No Actions or Proceedings.............................................................56
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6.1.10 Insurance.............................................................................56
6.1.11 Accountant's Letter...................................................................56
6.1.12 Officer's Certificate Regarding Maximum Leverage Ratio and Consolidated Tangible Net
Worth.................................................................................56
6.2 Each Additional Loan or Letter of Credit..................................................56
6.3 Subsequent Effective Date.................................................................57
7. COVENANTS............................................................................................58
7.1 Affirmative Covenants.....................................................................58
7.1.1 Preservation of Existence, Etc........................................................59
7.1.2 Payment of Liabilities, Including Taxes, Etc..........................................59
7.1.3 Maintenance of Insurance..............................................................59
7.1.4 Maintenance of Properties and Leases..................................................59
7.1.5 Maintenance of Patents, Trademarks, Etc...............................................59
7.1.6 Visitation Rights.....................................................................60
7.1.7 Keeping of Records and Books of Account...............................................60
7.1.8 Plans and Benefit Arrangements........................................................60
7.1.9 Compliance with Laws..................................................................60
7.1.10 Use of Proceeds.......................................................................61
7.1.11 Subsidiary Guaranties.................................................................61
7.2 Negative Covenants........................................................................61
7.2.1 Indebtedness..........................................................................61
7.2.2 Liens.................................................................................62
7.2.3 Guaranties............................................................................62
7.2.4 Loans and Investments.................................................................63
7.2.5 Dividends and Related Distributions...................................................63
7.2.6 Mergers, Consolidations, Acquisitions.................................................64
7.2.7 Liquidations, Dissolutions, Dispositions of Assets or
Subsidiaries..........................................................................66
7.2.8 Affiliate Transactions................................................................66
7.2.9 [Reserved]............................................................................66
7.2.10 Continuation of or Change in Business.................................................66
7.2.11 Plans and Benefit Arrangements........................................................67
7.2.12 Fiscal Year...........................................................................67
7.2.13 Maximum Leverage Ratio................................................................67
7.2.14 Minimum Interest Coverage Ratio.......................................................67
7.2.15 Minimum Net Worth.....................................................................67
7.2.16 Maximum Loan Party Indebtedness to Loan Party EBITDA
Ratio.................................................................................67
7.2.17 Inconsistent Agreements...............................................................67
7.3 Reporting Requirements....................................................................68
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7.3.1 Outstanding Financial Statements......................................................68
7.3.2 Annual Financial Statements...........................................................68
7.3.3 Certificate of the Company............................................................69
7.3.4 Notice of Default.....................................................................69
7.3.5 Notice of Litigation..................................................................69
7.3.6 Sale of Assets........................................................................69
7.3.7 Budgets, Forecasts, Other Reports and Information.....................................69
7.3.8 Notices Regarding Plans and Benefit Arrangements......................................70
8. DEFAULT..............................................................................................71
8.1 Events of Default.........................................................................71
8.1.1 Payments Under Loan Documents.........................................................71
8.1.2 Breach of Representation Warranty.....................................................72
8.1.3 Breach of Negative Covenants or Visitation Rights.....................................72
8.1.4 Breach of Other Covenants.............................................................72
8.1.5 Defaults in Other Agreements or Indebtedness..........................................72
8.1.6 Final Judgments or Orders.............................................................72
8.1.7 Loan Document Unenforceable...........................................................72
8.1.8 Uninsured Losses; Proceedings Against Assets..........................................73
8.1.9 Notice of Lien or Assessment..........................................................73
8.1.10 Insolvency............................................................................73
8.1.11 Events Relating to Plans and Benefit Arrangements.....................................73
8.1.12 Cessation of Business.................................................................74
8.1.13 Change of Control.....................................................................74
8.1.14 Involuntary Proceedings...............................................................74
8.1.15 Voluntary Proceedings.................................................................74
8.2 Consequences of Event of Default..........................................................75
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.....75
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings..................................75
8.2.3 Setoff................................................................................75
8.2.4 Suits, Actions, Proceedings...........................................................76
8.2.5 Application of Proceeds...............................................................76
8.2.6 Other Rights and Remedies.............................................................76
9. THE AGENT............................................................................................76
9.1 Appointment...............................................................................76
9.2 Delegation of Duties......................................................................77
9.3 Nature of Duties; Independent Credit Investigation........................................77
9.4 Actions in Discretion of Agent; Instructions From the Lenders.............................77
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9.5 Reimbursement and Indemnification of Agent by the Borrower................................78
9.6 Exculpatory Provisions; Limitation of Liability...........................................79
9.7 Reimbursement and Indemnification of Agent by Lenders.....................................79
9.8 Reliance by Agent.........................................................................80
9.9 Notice of Default.........................................................................80
9.10 Notices...................................................................................80
9.11 Lenders in Their Individual Capacities....................................................80
9.12 Equalization of Lenders...................................................................81
9.13 Successor Agent...........................................................................81
9.14 Agent's Fee...............................................................................82
9.15 Availability of Funds.....................................................................82
9.16 Calculations..............................................................................82
9.17 Beneficiaries.............................................................................83
10. MISCELLANEOUS........................................................................................83
10.1 Modifications, Amendments or Waivers......................................................83
10.1.1 Increase of Commitment; Extension or Expiration Date..................................83
10.1.2 Extension of Payment; Reduction of Principal, Interest or Fees........................83
10.1.3 Miscellaneous.........................................................................83
10.1.4 Release of Borrower or Guarantor......................................................83
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.................................84
10.3 Reimbursement and Indemnification of Lenders by the Borrower; Taxes.......................84
10.4 Holidays..................................................................................85
10.5 Funding by Branch, Subsidiary or Affiliate................................................85
10.5.1 Notional Funding......................................................................85
10.5.2 Actual Funding........................................................................86
10.6 Notices; Lending Offices..................................................................86
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10.7 Severability..............................................................................86
10.8 Governing Law.............................................................................86
10.9 Prior Understanding.......................................................................87
10.10 Duration; Survival........................................................................87
10.11 Successors and Assigns....................................................................87
10.12 Confidentiality...........................................................................88
10.12.1 General..............................................................................88
10.12.2 Sharing Information With Affiliates of the Lenders...................................89
10.13 Counterparts..............................................................................89
10.14 Agent's or Lender's Consent...............................................................89
10.15 Exceptions................................................................................89
10.16 Consent to Forum; Waiver of Jury Trial....................................................89
10.17 Tax Withholding Clause....................................................................90
10.18 Joinder of Guarantors.....................................................................91
10.19 Concerning Joint and Several Liability of the Borrowers...................................91
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A) -- PRICING GRID
SCHEDULE 1.1(B) -- COMMITMENTS OF BANKS AND ADDRESSES FOR
NOTICES; LENDING OFFICES
SCHEDULE 1.1(P) -- PERMITTED LIENS
SCHEDULE 5.1.2 -- OPTIONS
SCHEDULE 5.1.3 -- SUBSIDIARIES
SCHEDULE 5.1.13 -- CONSENTS AND APPROVALS
SCHEDULE 7.2.1 -- PERMITTED INDEBTEDNESS
EXHIBITS
EXHIBIT 1.1(A) -- ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(E) -- ELECTION TO PARTICIPATE
EXHIBIT 1.1(G)(1) -- GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) -- GUARANTY AGREEMENT
EXHIBIT 2.5.1 -- REVOLVING CREDIT LOAN REQUEST
EXHIBIT 2.5.2 -- SWING LOAN REQUEST
EXHIBIT 6.1.3 -- OPINION OF COUNSEL
EXHIBIT 7.2.6 -- ACQUISITION COMPLIANCE CERTIFICATE
EXHIBIT 7.3.3 -- QUARTERLY COMPLIANCE CERTIFICATE
ix
[CONFORMED COPY:
AMENDMENTS NO. 1 AND NO. 2]
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of September 23, 1999,
[conformed to show Credit Agreement as amended by Amendment No. 1 dated as of
January 31, 2001, and Amendment No. 2 dated as of October 31, 2001,] and is made
by and among ▇▇▇▇▇ FINANCIAL CO., a Delaware corporation ("▇▇▇▇▇ Financial"),
▇▇▇▇▇ CORPORATION, a Wisconsin corporation (the "Company") (▇▇▇▇▇ Financial and
the Company hereinafter referred to individually as a "Borrower" or jointly as
the "Borrowers"), each of the Guarantors (as hereinafter defined), the LENDERS
(as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its capacity as
agent for the Lenders under this Agreement (hereinafter referred to in such
capacity as the "Agent").
WITNESSETH:
WHEREAS, the Borrowers have requested the Lenders to provide a
revolving credit facility to the Borrowers in an aggregate principal amount not
to exceed $200,000,000; and
WHEREAS, the revolving credit facility shall be used for
Permitted Acquisitions (as hereinafter defined) and for general corporate
purposes; and
WHEREAS, the Lenders are willing to provide such credit upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions. In addition to words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
following meanings, respectively, unless the context hereof clearly requires
otherwise:
Affiliate as to any Person shall mean any other Person (i)
which directly or indirectly controls, is controlled by, or is under common
control with such Person, (ii) which beneficially owns or holds 10% or more of
any class of the voting or other equity interests of such Person, or (iii) 10%
or more of any class of voting interests or other equity interests of which is
beneficially owned or held, directly or indirectly, by such Person. Control, as
used in this definition, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise,
1
including the power to elect a majority of the directors or trustees of a
corporation or trust, as the case may be.
Agent shall mean PNC Bank, National Association, and its
successors and assigns.
Agent's Fee shall have the meaning assigned to that term in
Section 9.14.
Agent's Letter shall have the meaning assigned to that term in
Section 9.14.
Agreement shall mean this Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules and exhibits.
Annual Statements shall have the meaning assigned to that term
in Section 5.1.9(i).
Applicable Commitment Fee Rate shall mean the percentage rate
per annum at the indicated level of Total Indebtedness to Consolidated EBITDA in
the pricing grid on Schedule 1.1(A) below the heading "Commitment Fee."
Applicable Margin shall mean, as applicable:
(A) the percentage spread to be added to Base Rate under the
Revolving Credit Base Rate Option at the indicated level of Total Indebtedness
to Consolidated EBITDA in the pricing grid on Schedule 1.1(A) below the heading
"Revolving Credit Base Rate Margin," or
(B) the percentage spread to be added to Euro-Rate under the
Revolving Credit Euro-Rate Option at the indicated level of Total Indebtedness
to Consolidated EBITDA in the pricing grid on Schedule 1.1(A) below the heading
"Revolving Credit Euro-Rate Margin."
The Applicable Margin shall be computed in accordance with the
parameters set forth on Schedule 1.1(A).
Assignment and Assumption Agreement shall mean an Assignment
and Assumption Agreement by and among a Purchasing Lender, a Transferor Lender
and the Agent, as Agent and on behalf of the remaining Lenders, substantially in
the form of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by
written notice to the Agent from the Borrowers, authorized to execute notices,
reports and other documents on behalf of the Loan Parties required hereunder.
The Borrowers may amend such list of individuals from time to time by giving
written notice of such amendment to the Agent.
2
Base Rate shall mean the greater of (i) the interest rate per
annum announced from time to time by the Agent at its Principal Office as its
then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Agent, or (ii) the Federal Funds Effective Rate plus
1/2% per annum.
Base Rate Option shall mean the option of a Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(i).
Benefit Arrangement shall mean at any time an "employee
benefit plan," within the meaning of Section 3(3) of ERISA, which is neither a
Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise
contributed to by any member of the ERISA Group.
Borrowers, collectively, and Borrower, separately, shall have
the meanings assigned to such terms in the preface to this Agreement.
Borrowing Date shall mean, with respect to any Loan, the date
for the making thereof or the renewal or conversion thereof at or to the same or
a different Interest Rate Option, which shall be a Business Day.
Borrowing Subsidiary shall mean any Subsidiary which has
delivered an Election to Participate which is accepted by the Required Lenders,
and which has satisfied the conditions set forth in Section 6.3.
Borrowing Tranche shall mean specified portions of Loans
outstanding as follows: (i) any Loans to which a Euro-Rate Option applies which
become subject to the same Interest Rate Option under the same Loan Request by a
Borrower and which have the same Interest Period and which are denominated
either in Dollars or in the same Optional Currency shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall
constitute one Borrowing Tranche.
Business Day shall mean any day other than a Saturday or
Sunday or a legal holiday on which commercial Lenders are authorized or required
to be closed for business in Pittsburgh, Pennsylvania or Chicago, Illinois; and
(i) if the applicable Business Day relates to any Loan to which the Euro-Rate
Option applies, such day must also be a day on which dealings are carried on in
the London interbank market and (ii) with respect to advances or payments of
Loans or any other matters relating to Loans denominated in an Optional
Currency, such day also shall be a day on which dealings in deposits in the
relevant Optional Currency are carried on in the applicable interbank market,
(iii) with respect to advances or payments of Loans denominated in an Optional
Currency, such day shall also be a day on which all applicable Lenders into
which Loan proceeds may be deposited are open for business and foreign exchange
markets are open for business in the principal financial center of the country
of such Optional Currency.
3
Cash Equivalent shall mean (a) Treasury bills, treasury cash
management bills and other securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof) having maturities of not more than twelve months
from the date of acquisition, (b) Eurodollar denominated time deposits and U.S.
dollar denominated certificates of deposit and bankers acceptances, in each case
of (i) any Lender or (ii) any commercial bank of recognized standing having
capital and surplus in excess of $100,000,000 (each, an "Approved Lender"), (c)
commercial paper issued by any Approved Lender (or by the parent company
thereof) which is of investment grade or unrated commercial paper issued by
Wisconsin corporations, provided, in each case, the aggregate principal amount
of commercial paper issued by any one issuer shall not exceed $5,000,000, (d)
repurchase agreements with an Approved Lender, but only to the extent the same
is used as an overnight or over weekend investment, (e) obligations of any state
of the United States or any political subdivision thereof, the interest with
respect to which is entirely exempt from federal income taxation under Section
103 of the Internal Revenue Code and having a rating of A or above by Standard
and Poor's, (f) investments in municipal put bonds and municipal market auction
notes and bonds rated A or above by Standard and Poor's, (g) investments,
classified in accordance with GAAP as current assets, in adjustable rate
preferred stock (which must be purchased at the call price or below) and money
market investment programs registered under the Investment Company Act of 1940,
as amended, in each case, which are administered by reputable financial
institutions having capital of at least $100,000,000, 70% of the interest with
respect to which is exempt from federal income taxation under Section 103 of the
Internal Revenue Code, and having a rating of A or above by Standard and Poor's,
and (h) VEBA investments in municipal put bonds and notes, money market
preferred stock and commercial paper, in each case, the interest with respect to
which is taxable, and having a long term rating of A or above by Standard and
Poor's.
Closing Date shall mean September 23, 1999, or such other date
as the parties agree. The closing shall take place at 10:00 a.m., Chicago time,
on the Closing Date at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, 6600 Sears Tower,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time and place
as the parties agree.
Commercial Letter of Credit shall mean any Letter of Credit
which is a commercial letter of credit issued in respect of the purchase of
goods or services by one or more of the Loan Parties in the ordinary course of
their business.
Commitment shall mean, as to any Lender, the aggregate of its
Revolving Credit Commitment and, in the case of the Agent, its Swing Loan
Commitment, and Commitments shall mean the aggregate of the Revolving Credit
Commitments of all the Lenders.
Commitment Fee shall have the meaning assigned to that term in
Section 2.3.
4
Company shall mean ▇▇▇▇▇ Corporation, a Wisconsin corporation.
Computation Date shall have the meaning assigned to that term
in Section 2.12.1.
Consideration shall mean with respect to any Permitted
Acquisition, the aggregate of (i) the cash paid by any of the Loan Parties,
directly or indirectly, to the seller in connection therewith, (ii) the
Indebtedness incurred or assumed by any of the Loan Parties, whether in favor of
the seller or otherwise and whether fixed or contingent, (iii) any Guaranty
given or incurred by any Loan Party in connection therewith, and (iv) any other
consideration given or obligation incurred by any Loan Party in connection
therewith.
Consolidated EBIT for any period of determination shall mean
the sum of Consolidated Net Income, interest expense and income tax expense, in
each case of the Company and its Subsidiaries for such period determined and
consolidated in accordance with GAAP.
Consolidated EBITDA for any period of determination shall mean
Consolidated EBIT for such period plus, to the extent deducted in determining
Consolidated EBIT for such period, (i) depreciation expense and (ii)
amortization expense in each case of the Company and its Subsidiaries for such
period determined and consolidated in accordance with GAAP.
Consolidated Net Income for any period of determination shall
mean net income (excluding (i) all extraordinary non-cash items and (ii) income
or loss of any Person in which the Company owns less than 50% of the shares of
capital stock, partnership interests or membership interests), of the Company
and its Subsidiaries for such period determined and consolidated in accordance
with GAAP.
Consolidated Net Worth shall mean as of any date of
determination total stockholders' equity of the Company and its Subsidiaries as
of such date determined and consolidated in accordance with GAAP.
Consolidated Tangible Net Worth shall mean as of any date of
determination Consolidated Net Worth less intangible assets of the Company and
its Subsidiaries as of such date determined and consolidated in accordance with
GAAP.
Distributions shall have the meaning assigned to that term in
Section 7.2.5.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
lawful money of the United States of America.
Dollar Equivalent shall mean, with respect to any amount of
any currency, the Equivalent Amount of such currency expressed in Dollars.
5
Dollar Equivalent Revolving Facility Usage shall mean at any
time the sum of the Dollar Equivalent amount of Revolving Credit Loans then
outstanding and the Dollar Equivalent amount of Letters of Credit Outstanding.
Drawing Date shall have the meaning assigned to that term in
Section 2.13.3.2.
EBITDA of any Person for any period of determination shall
mean the sum of (i) net income (excluding (a) all extraordinary non-cash items
and (b) income or loss of any Person in which such Person owns less than 50% of
the shares of capital stock, partnership interests or membership interests) and
(ii) to the extent deducted in determining net income, interest expense, income
tax expense, depreciation expense and amortization expense, in each case, for
such period determined in accordance with GAAP.
Election to Participate shall mean a letter agreement in
substantially the form of Exhibit 1.1(E).
Environmental Complaint shall mean any written complaint or
demand setting forth a cause of action for personal or property damage or
natural resource damage or equitable relief, or any order, notice of violation,
citation, request for information issued pursuant to any Environmental Laws by
an Official Body, subpoena or other written notice of any type relating to,
arising out of, or issued pursuant to, any of the Environmental Laws or any
Environmental Conditions, as the case may be.
Environmental Conditions shall mean any conditions of the
environment, including the workplace, the ocean, natural resources (including
flora or fauna), soil, surface water, groundwater, any actual or potential
drinking water supply sources, substrata or the ambient air, relating to or
arising out of, or caused by, the use, handling, storage, treatment, recycling,
generation, transportation, release, spilling, leaking, pumping, emptying,
discharging, injecting, escaping, leaching, disposal, dumping, threatened
release or other management or mismanagement of Regulated Substances resulting
from the use of, or operations on, any Property.
Environmental Laws shall mean all federal, state, local and
foreign Laws and regulations, including permits, licenses, authorizations,
bonds, orders, judgments, and consent decrees issued, or entered into, pursuant
thereto, relating to pollution or protection of human health or the environment
or employee safety in the workplace.
Equivalent Amount shall mean, at any time, as determined by
the Agent (which determination shall be conclusive absent manifest error), with
respect to an amount of any currency (the "Reference Currency") which is to be
computed as an equivalent amount of another currency (the "Equivalent
Currency"): (i) if the Reference Currency and the Equivalent Currency are the
same, the amount of such Reference Currency, or (ii) if the Reference Currency
and the Equivalent Currency are not the same, the amount of such Equivalent
Currency converted from such Reference
6
Currency at the Agent's spot selling rate (based on the market rates then
prevailing and available to the Agent) for the sale of such Equivalent Currency
for such Reference Currency at a time determined by the Agent on the second
Business Day immediately preceding the event for which such calculation is made.
Equivalent Currency shall have the meaning assigned to such
term in the definition of Equivalent Amount.
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA Group shall mean, at any time, the Company and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which,
together with the Company, are treated as a single employer under Section 414 of
the Internal Revenue Code.
Euro-Rate shall mean the following:
(A) with respect to Dollar Loans comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum)
(i) the rate of interest determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to be
the average of the London interbank offered rates for U.S. Dollars quoted by the
British Bankers' Association as set forth on Dow ▇▇▇▇▇ Markets Service (formerly
known as Telerate) display page 3750 (or appropriate successor or, if the
British Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Agent) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the first day of such Interest
Period for an amount comparable to such Borrowing Tranche and having a borrowing
date and a maturity comparable to such Interest Period by (ii) a number equal to
1.00 minus the Euro-Rate Reserve Percentage. Such Euro-Rate may also be
expressed by the following formula:
Average of London interbank offered rates on Dow
▇▇▇▇▇ Markets Service display page 3750 as quoted by
Euro-Rate = British Bankers' Association or appropriate successor
-----------------------------------------------------
1.00 -- Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrowers of the
Euro-Rate as determined or adjusted in accordance herewith, which determination
shall be conclusive
7
absent manifest error. The Euro-Rate for any Loans shall be based upon the
Euro-Rate for the currency in which such Loans are requested.
(B) with respect to Optional Currency Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by Agent by dividing (the resulting
quotient rounded upward to the nearest 1/100 of 1 percent per annum) (i) the
rate of interest per annum ("LIBO Rate") determined by the Agent in accordance
with its usual procedures (which determination shall be conclusive absent
manifest error) to be the rate of interest per annum for deposits in the
relevant Optional Currency which appears on the relevant Dow ▇▇▇▇▇ Market
Service display page (or, if no such quotation is available on such Dow ▇▇▇▇▇
Market Service display page, on the appropriate Reuters Screen) at approximately
9:00 a.m., Eastern time, two (2) Business Days prior to the first day of such
Interest Period for delivery on the first day of such Interest Period for a
period, and in an amount, comparable to such Interest Period and principal
amount of such Borrowing Tranche by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage. Such Euro-Rate may also be expressed by the
following formula:
LIBO Rate
Euro Rate = ---------------------------------
1 -- Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrowers of the
Euro-Rate as determined or adjusted in accordance herewith, which determination
shall be conclusive absent manifest error. The Euro-Rate for any Loans shall be
based upon the Euro-Rate for the currency in which such Loans are requested.
Euro-Rate Interest Period shall mean the Interest Period
applicable to a Euro-Rate Loan.
Euro-Rate Option shall mean the option of a Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(ii).
Euro-Rate Reserve Percentage shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent which is in effect during any relevant period: (i) as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System; and
(ii) to be maintained by a Lender as required for reserve liquidity, special
deposit, or a similar purpose by any
8
governmental or monetary authority of any country or political subdivision
thereof (including any central bank), against (A) any category of liabilities
that includes deposits by reference to which a Euro-Rate is to be determined, or
(B) any category of extension of credit or other assets that includes Loans or
Borrowing Tranches to which a Euro-Rate applies.
Event of Default shall mean any of the events described in
Section 8.1 and referred to therein as an "Event of Default."
Expiration Date shall mean, with respect to the Revolving
Credit Commitments, September 23, 2004.
Federal Funds Effective Rate for any day shall mean the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
Foreign Loan Party shall mean any Loan Party organized under
the laws of any country other than the United States or substantially all of the
assets of which are located outside of the United States.
GAAP shall mean generally accepted accounting principles as
are in effect in the United States of America from time to time, subject to the
provisions of Section 1.3, and applied on a basis consistent with the Historical
Statements both as to classification of items and amounts.
Governmental Acts shall have the meaning assigned to that term
in Section 2.13.8.
Guarantor shall mean each of the parties to this Agreement
which is designated as a "guarantor" on the signature pages hereof and each
other person which joins this Agreement as a guarantor after the date hereof
pursuant to Section 10.18.
Guarantor Joinder shall mean a joinder by a Person as a
guarantor under this Agreement, the Guaranty Agreement and the other Loan
Documents in the form of Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such
Person guaranteeing or in effect guaranteeing any liability or obligation of any
other Person in
9
any manner, whether directly or indirectly, including any agreement to indemnify
or hold harmless any other Person, any performance bond or other suretyship
arrangement and any other form of assurance against loss, except endorsement of
negotiable or other instruments for deposit or collection in the ordinary course
of business. The amount of any Guaranty Obligation of any guaranteeing Person
shall be deemed to be the lower of (a) the amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
is made and (b) the maximum amount for which such guaranteeing Person may be
liable pursuant to the terms of the instrument embodying the Guaranty, unless
such primary obligation and the maximum amount for which such guaranteeing
Person may be liable are not stated or determinable, in which case the amount of
such Guaranty shall be such guaranteeing Person's maximum reasonably anticipated
liability in respect thereof as determined by such Person in accordance with
GAAP.
Guaranty Agreement shall mean the Guaranty and Suretyship
Agreement in substantially the form of Exhibit 1.1(G)(2) executed and delivered
by each of the Guarantors to the Agent for the benefit of the Lenders.
Historical Statements shall have the meaning assigned to that
term in Section 5.1.9(i).
Indebtedness shall mean, as to any Person at any time, without
duplication, any and all indebtedness, obligations or liabilities (whether
matured or unmatured, liquidated or unliquidated, direct or indirect, absolute
or contingent, or joint or several) of such Person for or in respect of: (i)
borrowed money, (ii) amounts raised under or liabilities in respect of any note
purchase or acceptance credit facility, (iii) reimbursement obligations
(contingent or otherwise) under any letter of credit, (iv) any other transaction
(including forward sale or purchase agreements, capitalized leases and
conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness and which are not more than thirty (30) days
past due), or (v) any Guaranty of Indebtedness for borrowed money.
Ineligible Security shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
Insolvency Proceeding shall mean, with respect to any Person,
(a) a case, action or proceeding with respect to such Person (i) before any
court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of
10
assets for creditors, or other, similar arrangement in respect of such Person's
creditors generally or any substantial portion of its creditors; undertaken
under any Law.
Interest Period shall have the meaning assigned to such term
in Section 3.2.
Interest Rate Option shall mean any Euro-Rate Option or Base
Rate Option.
Interim Statements shall have the meaning assigned to that
term in Section 5.1.9(i).
Internal Revenue Code shall mean the Internal Revenue Code of
1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Issuing Bank shall mean PNC Bank, National Association and its
successors and assigns and any other Lender approved as an Issuing Bank by the
Borrowers and the Agent so long as each such Lender expressly agrees to perform
in accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Issuing Bank and notifies the
Agent of its applicable Lending Office and the amount of its Letter of Credit
commitment (which information shall be recorded by the Agent in the register),
for so long as such Issuing Bank shall have a Letter of Credit Outstanding.
Labor Contracts shall mean all employment agreements,
employment contracts and collective bargaining agreements among any Loan Party
and its employees.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
Lenders shall mean the financial institutions named on
Schedule 1.1(B) and their respective successors and assigns as permitted
hereunder, each of which is referred to herein as a Lender.
Lending Office shall mean, with respect to each Lender, the
office(s) specified for such Lender in Schedule 1.1(B) or such other office(s)
as such Lender may specify in writing to the Agent.
Letter of Credit shall have the meaning assigned to that term
in Section 2.13.1.
Letter of Credit Borrowing shall mean an extension of credit
resulting from a drawing under any Letter of Credit which shall not have been
reimbursed on the date
11
when made and shall not have been converted into a Revolving Credit Loan under
Section 2.13.3.2.
Letter of Credit Fee shall have the meaning assigned to that
term in Section 2.13.2.
Letters of Credit Outstanding shall mean at any time the sum
of (i) the aggregate undrawn face amount of outstanding Letters of Credit and
(ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement (other than a filing made for informational purposes
only) or other notice of any of the foregoing (whether or not a lien or other
encumbrance is created or exists at the time of the filing).
LLC Interests shall have the meaning given to such term in
Section 5.1.3.
Loan Documents shall mean this Agreement, the Agent's Letter,
the Guaranty Agreement and any other instruments, certificates or documents
delivered or contemplated to be delivered hereunder or thereunder or in
connection herewith or therewith, as the same may be supplemented or amended
from time to time in accordance herewith or therewith, and Loan Document shall
mean any of the Loan Documents.
Loan Parties shall mean the Borrowers and the Guarantors.
Loan Party Indebtedness shall mean Indebtedness of any Loan
Party.
Loan Request shall have the meaning given to such term in
Section 2.5.
Loans shall mean collectively and Loan shall mean separately
all Revolving Credit Loans and Swing Loans or any Revolving Credit Loan or Swing
Loan.
Material Adverse Effect shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Loan Document, (b) is or could reasonably be expected to be
material and adverse to the business, properties, assets, financial condition,
results of operations or prospects of the Company and its Subsidiaries taken as
a whole, (c) impairs materially or could reasonably be expected to impair
materially the ability of the Company and its Subsidiaries taken as a whole to
duly and punctually pay or perform their Indebtedness, or (d) impairs materially
or could reasonably be expected to impair materially the ability of the Agent or
any of the Lenders, to the extent permitted, to enforce their legal remedies
pursuant to this Agreement or any other Loan Document.
12
Minimum Liquidity shall mean the sum of (i) all cash of the
Company and its Subsidiaries plus (ii) the excess of (a) the aggregate
Commitments of all of the Lenders over (b) the Dollar Equivalent Revolving
Facility Usage.
Month, with respect to an Interest Period under the Euro-Rate
Option, shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Multiemployer Plan shall mean any employee benefit plan which
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and
to which the Company or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Company or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notices shall have the meaning assigned to that term in
Section 10.6.
Obligation shall mean any obligation or liability of any of
the Loan Parties to the Agent or any of the Lenders, howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, the Letters of Credit, the Agent's Letter or any other Loan Document.
Official Body shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
Operating Income of any Person for any period of determination
shall mean income before deduction (or credit, if applicable) for taxes,
interest expense or interest income, amortization of goodwill and nonoperating
extraordinary expense or income, all as determined in accordance with GAAP.
Optional Currency shall mean any of the following currencies:
Australian Dollars ("AUD"), British Pounds Sterling ("GBP"), Canadian Dollars
("CAD"), Deutsche Marks (DEM"), European Common Currency ("Euro"), French Francs
("FRF"), Italian Lira ("ITL"), Spanish Pesetas ("ESP"), together with such other
freely convertible foreign currencies (which, when referred to herein or in the
other Loan Documents, shall be referred to using the currency codes in effect
from time to time under 150 International
13
Standard 4217, or any successor publication) so long as such currencies are
approved by Agent and all of the Lenders pursuant to Section 2.12.4.
Optional Currency Loan Processing Fee shall have the meaning
assigned to such term in Section 9.14.
Original Currency shall have the meaning assigned to such term
in Section 4.9.1.
Other Currency shall have the meaning assigned to such term in
Section 4.9.1.
Overnight Rate shall mean for any day with respect to any
Loans in an Optional Currency, the rate of interest per annum as determined by
the Agent at which overnight deposits in the such currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day in the applicable offshore interbank
market.
Participation Advance shall mean, with respect to any Lender,
such Lender's payment in respect of its participation in a Letter of Credit
Borrowing according to its Ratable Share pursuant to Section 2.13.4.
Partnership Interests shall have the meaning given to such
term in Section 5.1.3.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisitions shall have the meaning assigned to such
term in Section 7.2.6.
Permitted Guaranty Obligations shall mean (i) the Guaranty
made pursuant to the Guaranty Agreement, (ii) Guaranty obligations of the
Company and its Subsidiaries in favor of suppliers and vendors of the Company
and its Subsidiaries to enable such suppliers and vendors to purchase goods or
parts to be processed and sold to the Company and its Subsidiaries, provided,
however, that the aggregate of the liability of the Company and its Subsidiaries
under such Guaranty obligations shall not exceed $10,000,000 outstanding at any
one time (including any such advances which have been written off, compromised,
forgiven or satisfied after the Closing Date without payment in full thereof),
(iii) Guaranty obligations of any Loan Party to or in favor of one or more other
Loan Parties, and (iv) Guaranty obligations of any Borrower in respect of any
Indebtedness permitted under Section 7.2.1(xiii).
Permitted Investments shall mean:
(i) cash and Cash Equivalents;
14
(ii) receivables owing to any Loan Party for trade credit, in
each case if created, acquired or made in the ordinary course of
business;
(iii) investments in and advances to any Loan Party, provided
that any such advance shall be evidenced by a promissory note payable
upon demand;
(iv) investments in and advances to any wholly owned
Subsidiary of any Loan Party made in the ordinary course of business
and consistent with the parties' historical practices with respect to
amounts, terms and conditions, and in all cases, made in the reasonable
business judgment of the Borrowers and, provided, that any such
advances shall be evidenced by a promissory note payable upon demand,
other than advances to (A) W. H. B. Do Brasil Ltda. or (B) any
Subsidiary organized under the laws of any country which prohibits
promissory notes payable upon demand;
(v) loans and advances to officers, directors, and employees
in an aggregate amount not to exceed $2,000,000 at any time
outstanding;
(vi) investments (including debt obligations) received in
connection with bankruptcy or reorganization of suppliers and customers
and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of
business;
(vii) investments, acquisitions or transactions permitted
under 7.2.6(2);
(viii) with respect to any pension trust maintained for the
benefit of any present or former employees of the Company or any of its
Subsidiaries, such loans, advances and/or investments as the trustee or
administrator of the trust shall deem advisable pursuant to the terms
of such trust;
(ix) investments in and advances to partnerships, joint
ventures and any other non-wholly owned Subsidiary where the aggregate
amount of such investments and advances outstanding at any one time do
not exceed 20% of Consolidated Net Worth, provided that no Loan Party
may become a general partner in any partnership.
(x) additional loans, advances and/or investments of a nature
not contemplated by the foregoing clauses hereof; provided that such
loan, advances and/or investments made pursuant to this clause (x)
shall not exceed an aggregate amount of $5,000,000 outstanding at any
one time. As used herein, "investment" means, without duplication of
any matter permitted under Section 7.2.1, all investments, in cash or
by delivery of property made, directly or indirectly in, to or from any
Person, whether by acquisition of shares of capital stock, property,
assets, indebtedness or other obligations of securities or by loan,
advance, capital contribution or otherwise.
15
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred
in the ordinary course of business and which are not yet due and
payable so long as (A) the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings
diligently conducted so long as levy and execution thereon have been
stayed and continue to be stayed or (B) a final judgment is entered and
such judgment is discharged within thirty (30) days of entry, and they
do not in the aggregate materially impair the ability of any Loan Party
to perform its Obligations hereunder or under the other Loan Documents;
(ii) pledges or deposits made in the ordinary course of
business to secure payment of worker's compensation, or to participate
in any fund in connection with worker's compensation, unemployment
insurance, old-age pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable and Liens of
landlords securing obligations to pay lease payments that are not yet
due and payable or in default so long as (A) the validity or amount
thereof is being contested in good faith by appropriate and lawful
proceedings diligently conducted so long as levy and execution thereon
have been stayed and continue to be stayed or (B) a final judgment is
entered and such judgment is discharged within thirty (30) days of
entry, and they do not in the aggregate materially impair the ability
of any Loan Party to perform its Obligations hereunder or under the
other Loan Documents;
(iv) good-faith pledges or deposits made in the ordinary
course of business to secure performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases, not in
excess of the aggregate amount due thereunder, or to secure statutory
obligations, or surety, appeal, indemnity, performance or other similar
bonds required in the ordinary course of business;
(v) encumbrances consisting of zoning restrictions, easements
or other restrictions on the use of real Property, none of which
materially impairs the use of such Property or the value thereof, and
none of which is violated in any material respect by existing or
proposed structures or land use;
(vi) Liens, security interests and mortgages in favor of the
Agent for the benefit of the Lenders;
(vii) Liens on Property leased by any Loan Party or Subsidiary
of a Loan Party under capital leases permitted in Section 7.2.1
securing obligations of such Loan Party or Subsidiary to the lessor
under such leases;
16
(viii) any Lien existing on the date of this Agreement and
described on Schedule 1.1(P), provided that the principal amount
secured thereby is not hereafter increased, and no additional assets
become subject to such Lien;
(ix) Purchase Money Security Interests (and refinancings
thereof), provided that the aggregate amount of loans and deferred
payments secured by such Purchase Money Security Interests shall not
exceed $15,000,000 (excluding for the purpose of this computation any
loans or deferred payments secured by Liens described on Schedule
1.1(P)); and
(x) Liens resulting from final judgments or orders described
in Section 8.1.6 so long as the judgment or order which gave rise to
such Liens does not constitute an Event of Default hereunder;
(xi) Liens on the property or assets of a Person which becomes
a Subsidiary after the Closing Date securing Indebtedness permitted by
Section 7.2.1(x), provided that (a) such Liens existed at the time such
Person became a Subsidiary and were not created in anticipation
thereof, and (b) no such Lien is spread to cover any additional
property (other than proceeds of the collateral originally subject to
such Lien in accordance with the instrument creating such Lien) after
the Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(xii) Liens in the nature of licenses that arise in the
ordinary course of business and consistent with past practice;
(xiii) Liens incurred in connection with Indebtedness
permitted by Section 7.2.1(i) through (iii), (v), (vi), only with
respect to Liens granted by domestic Subsidiaries of the Company to
▇▇▇▇▇ Investment Co., and (ix), provided that no such Lien shall be
spread to cover any additional property after the Closing Date and the
amount of Indebtedness secured thereby shall not be increased;
(xiv) operating leases and subleases of excess real estate or
equipment otherwise hereunder granted to others not interfering in any
respect in the business of the Company or any of its Subsidiaries.
Person shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of
17
the ERISA Group for employees of any entity which was at such time a member of
the ERISA Group.
PNC Bank shall mean PNC Bank, National Association, its
successors and assigns.
Potential Default shall mean any event or condition which with
notice, passage of time or, with respect to the terms of Section 8.1.11, a
determination by the Agent or the Required Lenders, or any combination of the
foregoing, would constitute an Event of Default.
Principal Office shall mean the main banking office of the
Agent in Pittsburgh, Pennsylvania.
Prohibited Transaction shall mean any prohibited transaction
as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA
for which neither an individual nor a class exemption has been issued by the
United States Department of Labor.
Property shall mean all real property, both owned and leased,
of any Loan Party.
Purchase Money Security Interest shall mean Liens upon
tangible personal Property securing loans to any Loan Party or Subsidiary of a
Loan Party or deferred payments by such Loan Party or Subsidiary for the
purchase of such tangible personal Property.
Purchasing Lender shall mean a Lender which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Lender's
Commitment (excluding the Swing Loan Commitment) bears to the Commitments
(excluding the Swing Loan Commitment) of all of the Lenders.
Reference Currency shall have the meaning assigned to such
term in the definition of Equivalent Amount.
Regulated Substances shall mean any substance, including any
solid, liquid, semisolid, gaseous, thermal, thoriated or radioactive material,
refuse, garbage, wastes, chemicals, petroleum products, by-products,
co-products, impurities, dust, scrap, heavy metals, defined as a "hazardous
substance," "pollutant," "pollution," "contaminant," "hazardous or toxic
substance," "extremely hazardous substance," "toxic chemical," "toxic waste,"
"hazardous waste," "industrial waste," "residual waste," "solid waste,"
"municipal waste," "mixed waste," "infectious waste," "chemotherapeutic waste,"
"medical waste," or "regulated substance" or any related materials, substances
or wastes as now or hereafter defined pursuant to any Environmental Laws,
ordinances, rules, regulations or other directives of any Official Body, the
generation, manufacture,
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extraction, processing, distribution, treatment, storage, disposal, transport,
recycling, reclamation, use, reuse, spilling, leaking, dumping, injection,
pumping, leaching, emptying, discharge, escape, release or other management or
mismanagement of which is regulated by the Environmental Laws.
Regulation U shall mean Regulation T, U or X as promulgated by
the Board of Governors of the Federal Reserve System, as amended from time to
time.
Reimbursement Obligation shall have the meaning assigned to
such term in Section 2.13.3.2.
Reportable Event shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
Required Lenders shall mean (i) Lenders whose Commitments
(excluding the Swing Loan Commitments) aggregate at least 51% of the Commitments
of all of the Lenders, or (ii) if there are Loans, Reimbursement Obligations, or
Letter of Credit Borrowings outstanding, any Lender or group of Lenders if the
sum of the Loans (excluding the Swing Loans), Reimbursement Obligations and
Letter of Credit Borrowings of such Lenders then outstanding aggregates at least
51% of the total principal amount of all of the Loans (excluding the Swing
Loans), Reimbursement Obligations and Letter of Credit Borrowings then
outstanding. Reimbursement Obligations and Letter of Credit Borrowings shall be
deemed, for purposes of this definition, to be in favor of the Agent and not a
participating Lender if such Lender has not made its Participation Advance in
respect thereof and shall be deemed to be in favor of such Lender to the extent
of its Participation Advance if it has made its Participation Advance in respect
thereof.
Required Share shall have the meaning assigned to such term in
Section 4.10.
Revolving Credit Commitment shall mean, as to any Lender at
any time, the amount initially set forth opposite its name on Schedule 1.1(B) in
the column labeled "Amount of Commitment for Revolving Credit Loans," and
thereafter on Schedule I to the most recent Assignment and Assumption Agreement
or, if applicable, on revised Schedule 1.1(B) pursuant to Section 2.4.2, and
Revolving Credit Commitments shall mean the aggregate Revolving Credit
Commitments of all of the Lenders.
Revolving Credit Loans shall mean collectively and Revolving
Credit Loan shall mean separately all Revolving Credit Loans or any Revolving
Credit Loan made by the Lenders or one of the Lenders to the Borrowers pursuant
to Section 2.1 or 2.13.3.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
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Section 20 Subsidiary shall mean the Subsidiary of the bank
holding company controlling any Lender, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities.
Settlement Date shall mean the Friday of each week (if such
day is a Business Day and if not, the next succeeding Business Day) and any
other Business Day on which the Agent elects to effect settlement pursuant to
Section 4.10.
Shares shall have the meaning assigned to such term in Section
5.1.2.
Standard & Poor's shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
Standby Letter of Credit shall mean a Letter of Credit issued
to support obligations of one or more of the Loan Parties, contingent or
otherwise, which finance the working capital and business needs of the Loan
Parties incurred in the ordinary course of business.
Subsequent Effective Date shall mean the date on which (i) the
Agent has received all deliveries from any Subsidiary required by Section 6.3 in
a form reasonably satisfactory to the Agent and its counsel and (ii) all of the
conditions in Section 6.3 have been satisfied.
Subsidiary of any Person at any time shall mean (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled by such Person or one or
more of such Person's Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term
in Section 5.1.3.
Swing Loan Commitment shall mean PNC Bank's commitment to make
Swing Loans to the Borrowers pursuant to Section 2.1.2 hereof in an aggregate
principal amount not in excess of $15,000,000.
Swing Loan Request shall mean a request for Swing Loans made
in accordance with Section 2.5.2 hereof.
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Swing Loans shall mean collectively and Swing Loan shall mean
separately all Swing Loans or any Swing Loan made by PNC Bank to the Borrowers
pursuant to Section 2.1.2 hereof.
Transferor Lender shall mean the selling Lender pursuant to an
Assignment and Assumption Agreement.
Total Indebtedness shall mean, without duplication, the
aggregate amount of short and long term Indebtedness (including capital leases,
guarantees of Indebtedness for borrowed money and letters of credit
outstanding).
Year 2000 Problem shall have the meaning assigned to such term
in Section 5.1.24.
1.2 Construction. Unless the context of this Agreement otherwise
clearly requires, the following rules of construction shall apply to this
Agreement and each of the other Loan Documents:
1.2.1 Number; Inclusion. References to the plural include the
singular, the plural, the part and the whole; "or" has the inclusive meaning
represented by the phrase "and/or," and "including" has the meaning represented
by the phrase "including without limitation";
1.2.2 Determination. References to "determination" of or by
the Agent or the Lenders shall be deemed to include good-faith estimates by the
Agent or the Lenders (in the case of quantitative determinations) and good-faith
beliefs by the Agent or the Lenders (in the case of qualitative determinations)
and such determination shall be conclusive absent manifest error;
1.2.3 Agent's Discretion and Consent. Whenever the Agent or
the Lenders are granted the right herein to act in its or their sole discretion
or to grant or withhold consent such right shall be exercised in good faith;
1.2.4 Documents Taken as a Whole. The words "hereof,"
"herein," "hereunder," "hereto" and similar terms in this Agreement or any other
Loan Document refer to this Agreement or such other Loan Document as a whole and
not to any particular provision of this Agreement or such other Loan Document;
1.2.5 Headings. The section and other headings contained in
this Agreement or such other Loan Document and the Table of Contents (if any),
preceding this Agreement or such other Loan Document are for reference purposes
only and shall not control or affect the construction of this Agreement or such
other Loan Document or the interpretation thereof in any respect;
1.2.6 Implied References to this Agreement. Article, section,
subsection, clause, schedule and exhibit references are to this Agreement or
other Loan Document, as the case may be, unless otherwise specified;
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1.2.7 Persons. Reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement or such other Loan Document, as the case may be,
and reference to a Person in a particular capacity excludes such Person in any
other capacity;
1.2.8 Modifications to Documents. Reference to any agreement
(including this Agreement and any other Loan Document together with the
schedules and exhibits hereto or thereto), document or instrument means such
agreement, document or instrument as amended, modified, replaced, substituted
for, superseded or restated;
1.2.9 From, To and Through. Relative to the determination of
any period of time, "from" means "from and including," "to" means "to but
excluding," and "through" means "through and including"; and
1.2.10 Shall; Will. References to "shall" and "will" are
intended to have the same meaning.
1.3 Accounting Principles. Except as otherwise provided in this
Agreement, all computations and determinations as to accounting or financial
matters and all financial statements to be delivered pursuant to this Agreement
shall be made and prepared in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP; provided, however, that all
accounting terms used in Section 7.2 (and all defined terms used in the
definition of any accounting term used in Section 7.2 shall have the meaning
given to such terms (and defined terms) under GAAP as in effect on the date
hereof applied on a basis consistent with those used in preparing the Annual
Statements referred to in Section 5.1.9(i). In the event of any change after the
date hereof in GAAP, and if such change would result in the inability to
determine compliance with the financial covenants set forth in Section 7.2 based
upon the Company's regularly prepared financial statements by reason of the
preceding sentence, then the parties hereto agree to endeavor, in good faith, to
agree upon an amendment to this Agreement that would adjust such financial
covenants in a manner that would not affect the substance thereof, but would
allow compliance therewith to be determined in accordance with the Company's
financial statements at that time.
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 Revolving Credit Commitments.
2.1.1 Revolving Credit Loans. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Lender severally agrees to make Revolving Credit Loans in either
Dollars or one or more Optional Currencies to the Borrowers at any time or from
time to time on or after the date hereof to, but not including, the Expiration
Date provided that (i) after giving effect
22
to each such Loan the aggregate Dollar Equivalent principal amount of Loans from
such Lender shall not exceed such Lender's Revolving Credit Commitment minus
such Lender's Ratable Share of the Dollar Equivalent amount of Letters of Credit
Outstanding, and (ii) no Loan to which the Base Rate Option applies shall be
made in an Optional Currency. Within such limits of time and amount and subject
to the other provisions of this Agreement, the Borrowers may borrow, repay and
reborrow pursuant to this Section 2.1.1. Each Lender's Commitment and Ratable
Share are set forth opposite its name in Schedule 1.1(B).
2.1.2 Swing Loan Commitment. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, and in order to facilitate loans and repayments between Settlement Dates,
PNC Bank may, at its option, cancelable at any time for any reason whatsoever,
make swing loans (the "Swing Loans") to the Borrowers at any time or from time
to time after the date hereof to, but not including, the Expiration Date, in an
aggregate principal amount up to but not in excess of $15,000,000 (the "Swing
Loan Commitment"), provided that the aggregate principal amount of PNC Bank's
Swing Loans, the Revolving Credit Loans and Letters of Credit Outstanding of all
the Lenders at any one time shall not exceed the Commitments of all the Lenders.
Within such limits of time and amount and subject to the other provisions of
this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this
Section 2.1.2.
2.2 Nature of Lenders' Obligations with Respect to Revolving Credit
Loans. Each Lender shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.5 in accordance with its Ratable
Share. The aggregate Dollar Equivalent amount of each Lender's Revolving Credit
Loans outstanding hereunder shall never exceed its Revolving Credit Commitment
minus its Ratable Share of the Dollar Equivalent amount of Letters of Credit
Outstanding, subject to Section 4.5.1. The obligations of each Lender hereunder
are several. The failure of any Lender to perform its obligations hereunder
shall not affect the Obligations of the Borrowers to any other party nor shall
any other party be liable for the failure of such Lender to perform its
obligations hereunder. The Lenders shall have no obligation to make Revolving
Credit Loans hereunder on or after the Expiration Date.
2.3 Commitment Fees. Accruing from the date hereof until the Expiration
Date, the Borrowers agree to pay to the Agent in Dollars for the account of each
Lender, as consideration for such Lender's Revolving Credit Commitment
hereunder, a nonrefundable commitment fee (the "Commitment Fee") equal to the
Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed) on the average daily
difference between the amount of (i) such Lender's Revolving Credit Commitment
as the same may be constituted from time to time (for purposes of this
computation, PNC Bank's Swing Loans shall be deemed to be borrowed amounts under
its Revolving Credit Commitment) and (ii) the sum of such Lender's Revolving
Credit Loans outstanding (plus, in the case of PNC Bank, Swing Loans
outstanding) plus its Ratable Share of Letters of Credit Outstanding. All
Commitment Fees shall be payable in arrears on the
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last Business Day of each September, December, March and June after the date
hereof and on the Expiration Date or upon acceleration of the Loans.
2.4. Reduction of Commitment; Increase in Commitments.
2.4.1 Reduction of Commitment. The Borrowers shall have the
right at any time and from time to time upon five (5) Business Days prior
written notice to the Agent to permanently reduce, in whole multiples of
$10,000,000 of principal, or to terminate (provided no Letters of Credit are
outstanding) the Commitments without penalty or premium, except as set forth in
Section 4.6.2(i) hereof, provided that any such reduction or termination shall
be accompanied by (a) the payment in full of any Fees then accrued on the amount
of such reduction or termination, and (b) prepayment of the Revolving Credit
Loans and or Swing Loans, together with the full amount of interest and Fees
accrued on the principal sum to be prepaid (and all amounts referred to in
Section 4.6.2 hereof), to the extent that the aggregate sum of the Dollar
Equivalent amount of (i) the Revolving Credit Loans outstanding and (ii) the
Letters of Credit Outstanding plus the amount of Swing Loans outstanding exceeds
the Commitments as so reduced or terminated. The Borrowers may not reduce the
Commitments below the amount of any Letter of Credit Outstanding. If at any time
the Commitments are reduced to an amount which is less than the Swing Loan
Commitment then in effect, the Swing Loan Commitment shall automatically,
without notice of any kind, be reduced to the amount of the Commitments then in
effect.
2.4.2 Increase in Commitments. Subject to approval by 100% of
the Lenders, the Borrowers shall have the right at any time to request the
Lenders to increase the Commitments up to an aggregate principal amount not to
exceed $200,000,000; provided, that the Borrowers shall only be entitled to make
one such request. Such a request must be made by the Borrowers to the Agent in
writing, and must specify the amount by which the Borrowers request the
Commitments to be increased, and be accompanied by a certificate of each of the
Loan Parties signed by its Chief Executive Officer, President or Chief Financial
Officer to the effect that (i) the representations and warranties of each of the
Loan Parties contained in Section 5.1 and in each of the other Loan Documents
are true and correct on and as of the date of such request with the same effect
as though such representations and warranties had been made on and as of such
date (except representations and warranties which relate solely to an earlier
date or time, which representations and warranties shall be true and correct on
and as of the specific dates or times referred to therein), and (ii) no Event of
Default or Potential Default shall have occurred and be continuing or shall
exist. If such request is approved by 100% of the Lenders, Schedule 1.1(B) shall
be amended by the Agent and the Borrowers to reflect such increase, and the
Agent shall deliver to the Lenders and the Borrowers a copy of revised Schedule
1.1(B).
2.5 Revolving Credit Loan Requests; Swing Loan Requests.
2.5.1 Revolving Credit Loan Requests. Except as otherwise
provided herein, a Borrower may from time to time prior to the Expiration Date
request the
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Lenders to make Revolving Credit Loans, or renew or convert the Interest Rate
Option applicable to existing Revolving Credit Loans pursuant to Section 3.1.3,
by delivering to the Agent, not later than 11:00 a.m., Eastern time, (i) three
(3) Business Days prior to the proposed Borrowing Date with respect to the
making of Revolving Credit Loans in Dollars to which the Euro-Rate Option
applies or the date of conversion to or the renewal of the Euro-Rate Option for
any such Loans and four (4) Business Days prior to the proposed Borrowing Date
with respect to the making of Revolving Credit Loans in an Optional Currency or
the date of conversion to or renewal of the Euro-Rate Option for Revolving
Credit Loans in an Optional Currency; and (ii) one (1) Business Day prior to
either the proposed Borrowing Date with respect to the making of a Revolving
Credit Loan to which the Base Rate Option applies or the last day of the
preceding Interest Period with respect to the conversion to the Base Rate Option
for any Loan, of a duly completed request therefor substantially in the form of
Exhibit 2.5.1 or a request by telephone immediately confirmed in writing by
letter, facsimile or telex in the form of such Exhibit (each, a "Loan Request"),
it being understood that the Agent may rely on the authority of any individual
making such a telephonic request without the necessity of receipt of such
written confirmation. Each Loan Request shall be irrevocable and shall specify
(i) the proposed Borrowing Date; (ii) the aggregate amount of the proposed Loans
(expressed in the currency in which such Loans shall be funded and also as a
Dollar Equivalent if such Loans shall be funded in an Optional Currency)
comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall
be in integral multiples of $1,000,000 and not less than $5,000,000 for each
Borrowing Tranche to which the Euro-Rate Option applies and not less than the
lesser of $1,000,000 or the maximum amount available for Borrowing Tranches to
which the Base Rate Option applies; (iii) whether the Euro-Rate Option or Base
Rate Option shall apply to the proposed Loans comprising the applicable
Borrowing Tranche; (iv) the currency in which such Loans shall be funded if the
Borrower is electing the Euro-Rate Option; and (v) in the case of a Borrowing
Tranche to which the Euro-Rate Option applies, an appropriate Interest Period
for the Loans comprising such Borrowing Tranche.
2.5.2 Swing Loan Requests. Except as otherwise provided
herein, a Borrower may from time to time prior to the Expiration Date request
PNC Bank to make Swing Loans by delivery to PNC Bank not later than 11:00 a.m.
Eastern time on the proposed Borrowing Date of a duly completed request therefor
substantially in the form of Exhibit 2.5.2 hereto or a request by telephone
immediately confirmed in writing by letter, facsimile or telex (each, a "Swing
Loan Request"), it being understood that PNC Bank may rely on the authority of
any individual making such a telephonic request without the necessity of receipt
of such written confirmation. Each Swing Loan Request shall be irrevocable and
shall specify the proposed Borrowing Date and the principal amount of such Swing
Loan, which shall be not less than $500,000 or such lesser amount with the
consent of PNC Bank.
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2.6 Making Revolving Credit Loans and Swing Loans; Revolving Credit
Notes and Swing Notes.
2.6.1 Making Revolving Credit Loans. The Agent shall, promptly
after receipt by it of a Loan Request pursuant to Section 2.5, notify the
Lenders of its receipt of such Loan Request specifying: (i) the proposed
Borrowing Date and the time and method of disbursement of the Revolving Credit
Loans requested thereby; (ii) the amount and type of each such Revolving Credit
Loan and the applicable Interest Period (if any); and (iii) the apportionment
among the Lenders of such Revolving Credit Loans as determined by the Agent in
accordance with Section 2.2. Each Lender shall remit the principal amount of
each Revolving Credit Loan in the applicable currency to the Agent such that the
Agent is able to, and the Agent shall, to the extent the Lenders have made funds
available to it for such purpose and subject to Section 6.2, fund such Revolving
Credit Loans to a Borrower in the applicable currency and immediately available
funds at the Principal Office prior to 2:00 p.m., Eastern time, on the
applicable Borrowing Date, provided that if any Lender fails to remit such funds
to the Agent in a timely manner, the Agent may elect in its sole discretion to
fund with its own funds the Revolving Credit Loans of such Lender on such
Borrowing Date, and such Lender shall be subject to the repayment obligation in
Section 9.15.
2.6.2 Making Swing Loans. So long as PNC Bank elects to make
Swing Loans, PNC Bank shall, after receipt by it of a Swing Loan Request
pursuant to Section 2.5.2, fund such Swing Loan to a Borrower in U.S. Dollars
and immediately available funds at the Principal Office prior to 2:00 p.m.,
Eastern time, on the Borrowing Date.
2.7 Evidence of Revolving Credit Obligations. The Obligation of the
Borrowers to repay the aggregate unpaid principal amount of the Revolving Credit
Loans made to it by each Lender, together with interest thereon, shall be
recorded by each such Lender from time to time on a ledger or other record of
such Lender, or such Lender shall record such information in its computer
systems, provided that any failure to make any such record shall in no way
detract from the Borrowers' Obligations. The aggregate unpaid amount of the
Revolving Credit Loans shown on the records of such Lender shall be rebuttably
presumptive evidence of the principal amount owing and unpaid.
2.8 Evidence of Swing Loan Obligations. The Obligation of the Borrowers
to repay the aggregate unpaid principal amount of the Swing Loans made to it by
PNC Bank, together with interest thereon, shall be recorded by PNC Bank from
time to time on a ledger or other record of PNC Bank, or PNC Bank shall record
such information in its computer systems; provided that any failure to make any
such record shall in no way detract from the Borrowers' Obligations. The
aggregate unpaid amount of the Swing Loans shown on the records of PNC Bank
shall be rebuttably presumptive evidence of the principal amount owing and
unpaid.
2.9 Promissory Notes. Any Lender may request that any Loans made by it
to the Borrowers be evidenced by a promissory note. In such event, the Borrowers
shall
26
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.11) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
2.10 Use of Proceeds. The proceeds of the Revolving Credit Loans shall
be used for general corporate purposes and in accordance with Section 7.1.10.
2.11 Borrowings to Repay Swing Loans. PNC Bank may, at its option,
exercisable at any time for any reason whatsoever, demand repayment of the Swing
Loans, and each Lender shall make a Revolving Credit Loan in an amount equal to
such Lender's Ratable Share of the aggregate principal amount of the outstanding
Swing Loans, plus, if PNC Bank so requests, accrued interest thereon, provided
that no Lender shall be obligated in any event to make Revolving Credit Loans in
excess of its Revolving Credit Commitment. Revolving Credit Loans made pursuant
to the preceding sentence shall bear interest at the Base Rate Option and shall
be deemed to have been properly requested in accordance with Section 2.5.1
without regard to any of the requirements of that provision. PNC Bank shall
provide notice to the Lenders (which may be telephonic or written notice by
letter, facsimile or telex) that such Revolving Credit Loans are to be made
under this Section 2.11 and of the apportionment among the Lenders, and the
Lenders shall be unconditionally obligated to fund such Revolving Credit Loans
(whether or not the conditions specified in Section 2.5.1 are then satisfied) by
the time PNC Bank so requests, which shall not be earlier than 3:00 p.m. Eastern
time on the Business Day next after the date the Lenders receive such notice
from PNC Bank.
2.12 Utilization of Commitments in Optional Currencies.
2.12.1 Periodic Computations of Dollar Equivalent Amounts of
Loans and Letters of Credit Outstanding. The Agent will determine the Dollar
Equivalent amount of (i) proposed Revolving Credit Loans or Letters of Credit to
be denominated in an Optional Currency as of the requested Borrowing Date or
date of issuance, as the case may be, (ii) outstanding Revolving Credit Loans or
Letters of Credit Outstanding denominated in an Optional Currency as of the last
Business Day of each month, (iii) outstanding Revolving Credit Loans denominated
in an Optional Currency as of the end of each Interest Period, and (iv)
outstanding Revolving Credit Loans denominated in an Optional Currency as of any
date a request is made by the Required Lenders (each such date under clauses (i)
through (iv), a "Computation Date").
2.12.2 Notices From Lenders That Optional Currencies Are
Unavailable to Fund New Loans. The Lenders shall be under no obligation to make
the Revolving Credit Loans requested by a Borrower which are denominated in an
Optional Currency if any Lender notifies the Agent by 5:00 p.m. (Eastern time)
four (4) Business Days prior
27
to the Borrowing Date for such Revolving Credit Loans that such Lender cannot
provide its share of such Revolving Credit Loans in such Optional Currency. In
the event the Agent timely receives a notice from a Lender pursuant to the
preceding sentence, the Agent will notify such Borrower no later than 12:00 Noon
(Eastern time) three (3) Business Days prior to the Borrowing Date for such
Revolving Credit Loans that the Optional Currency is not then available for such
Revolving Credit Loans, and the Agent shall promptly thereafter notify the
Lenders of the same. If such Borrower receives a notice described in the
preceding sentence, such Borrower may, by notice to the Agent not later than
5:00 p.m. (Eastern time) three (3) Business Days prior to the Borrowing Date for
such Revolving Credit Loans, withdraw the Loan Request for such Revolving Credit
Loans. If such Borrower withdraws such Loan Request, the Agent will promptly
notify each Lender of the same and the Lenders shall not make such Revolving
Credit Loans. If such Borrower does not withdraw such Loan Request before such
time, (i) such Borrower shall be deemed to have requested that the Revolving
Credit Loans referred to in its Loan Request shall be made in Dollars in an
amount equal to the Dollar Equivalent amount of such Revolving Credit Loans and
shall bear interest under the Base Rate Option, and (ii) the Agent shall
promptly deliver a notice to each Lender stating: (A) that such Revolving Credit
Loans shall be made in Dollars and shall bear interest under the Base Rate
Option, (B) the aggregate amount of such Revolving Credit Loans, and (C) such
Lender's Ratable Share of such Revolving Credit Loans.
2.12.3 Notices From Lenders That Optional Currencies Are
Unavailable to Fund Renewals of the Loan Euro-Rate Option. If a Borrower
delivers a Loan Request requesting that the Lenders renew the Euro-Rate Option
with respect to an outstanding Borrowing Tranche of Revolving Credit Loans
denominated in an Optional Currency, the Lenders shall be under no obligation to
renew such Euro-Rate Option if any Lender delivers to the Agent a notice by 5:00
p.m. (Eastern time) four (4) Business Days prior to effective date of such
renewal that such Lender cannot continue to provide Revolving Credit Loans in
such Optional Currency. In the event the Agent timely receives a notice from a
Lender pursuant to the preceding sentence, the Agent will notify such Borrower
no later than 12:00 Noon (Eastern time) three (3) Business Days prior to the
renewal date that the renewal of such Revolving Credit Loans in such Optional
Currency is not then available, and the Agent shall promptly thereafter notify
the Lenders of the same. If the Agent shall have so notified such Borrower that
any such continuation of Optional Currency Loans is not then available, any
notice of renewal with respect thereto shall be deemed withdrawn, and such
Optional Currency Loans shall be redenominated into Base Rate Loans in Dollars
with effect from the last day of the Interest Period with respect to any such
Optional Currency Loans. The Agent will promptly notify such Borrower and the
Lenders of any such redenomination, and in such notice, the Agent will state the
aggregate Dollar Equivalent amount of the redenominated Optional Currency Loans
as of the Computation Date with respect thereto and such Lender's Ratable Share
thereof.
2.12.4 Requests for Additional Optional Currencies. A Borrower
may deliver to the Agent a written request that Revolving Credit Loans hereunder
also be permitted to be made in any other lawful currency (other than Dollars),
in addition to the
28
currencies specified in the definition of "Optional Currency" herein provided
that such currency must be freely traded in the offshore interbank foreign
exchange markets, freely transferable, freely convertible into Dollars and
available to the Lenders in the applicable interbank market. The Agent will
promptly notify the Lenders of any such request promptly after the Agent
receives such request. The Agent and each Lender may grant or accept such
request in their sole discretion. The Agent will promptly notify such Borrower
of the acceptance or rejection by the Agent and each of the Lenders of such
Borrower's request. The requested currency shall be approved as an Optional
Currency hereunder only if the Agent and all of the Lenders approve of such
Borrower's request.
2.13 Letter of Credit Subfacility.
2.13.1 Issuance of Letters of Credit. A Borrower may request
the issuance of a letter of credit (each a "Letter of Credit") on behalf of
itself or another Loan Party or any Subsidiary of a Loan Party by delivering to
the Issuing Bank a completed application and agreement for letters of credit in
such form as the Issuing Bank may specify from time to time by no later than
10:00 a.m., Eastern time, at least five (5) Business Days, or such shorter
period as may be agreed to by the Issuing Bank, in advance of the proposed date
of issuance. Each Letter of Credit shall be either a Standby Letter of Credit or
a Commercial Letter of Credit and may be denominated in either Dollars or an
Optional Currency. Subject to the terms and conditions hereof and in reliance on
the agreements of the other Lenders set forth in Section 2.11 hereof, the
Issuing Bank will issue a Letter of Credit provided that each Letter of Credit
shall (A) have a maximum maturity of twelve (12) months from the date of
issuance, and (B) in no event expire later than ten (10) Business Days prior to
the Expiration Date and providing that in no event shall (i) the Dollar
Equivalent amount of Letters of Credit Outstanding exceed, at any one time,
$50,000,000 or (ii) the Dollar Equivalent Revolving Facility Usage exceed, at
any one time, the Revolving Credit Commitments.
2.13.2 Letter of Credit Fees. The Borrowers shall pay in
Dollars (i) quarterly to the Agent for the ratable account of the Lenders a fee
(the "Letter of Credit Fee") equal to the then applicable spread above the
Euro-Rate on the amount of Letters of Credit Outstanding, and (ii) to the
Issuing Bank for its own account a fronting fee equal to 1/8% per annum
(computed on the basis of a year of 360 days and actual days elapsed), which
fees shall be computed on the daily average Dollar Equivalent amount of Letters
of Credit Outstanding and shall be payable quarterly in arrears commencing with
the last Business Day of each September, December, March and June following
issuance of each Letter of Credit and on the Expiration Date. The Borrowers
shall also pay to the Issuing Bank in Dollars for the Issuing Bank's sole
account the Issuing Bank's then in effect customary fees and administrative
expenses payable with respect to the Letters of Credit as the Issuing Bank may
generally charge or incur from time to time in connection with the issuance,
maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
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2.13.3 Disbursements, Reimbursement.
2.13.3.1 Immediately upon the Issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a participation in
such Letter of Credit and each drawing thereunder in an amount equal to such
Lender's Ratable Share of the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively.
2.13.3.2 In the event of any request for a drawing
under a Letter of Credit by the beneficiary or transferee thereof, the Issuing
Bank will promptly notify the Borrowers. Provided that it shall have received
such notice, the Borrowers shall reimburse (such obligation to reimburse the
Issuing Bank shall sometimes be referred to as a "Reimbursement Obligation") the
Issuing Bank in Dollars prior to 12:00 Noon, Eastern time on each date that an
amount is paid by the Issuing Bank under any Letter of Credit (each such date, a
"Drawing Date") in an amount equal to the Dollar Equivalent amount so paid by
the Issuing Bank. In the event the Borrowers fail to reimburse the Issuing Bank
for the full Dollar Equivalent amount of any drawing under any Letter of Credit
by 12:00 Noon, Eastern time, on the Drawing Date, the Issuing Bank will promptly
notify each Lender thereof, and the Borrowers shall be deemed to have requested
that Revolving Credit Loans be made by the Lenders in Dollars under the Base
Rate Option to be disbursed on the Drawing Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Revolving Credit
Commitment and subject to the conditions set forth in Section 6.2 other than any
notice requirements. Any notice given by the Issuing Bank pursuant to this
Section 2.13.3.2 may be oral if promptly confirmed in writing; provided that the
lack of such a prompt confirmation shall not affect the conclusiveness or
binding effect of such notice.
2.13.3.3 Each Lender shall upon any notice pursuant
to Section 2.13.3.2 make available to the Agent for the account of the Issuing
Bank an amount in Dollars in immediately available funds equal to its Ratable
Share of the Dollar Equivalent amount of the drawing, whereupon the
participating Lenders shall (subject to Section 2.13.3.4) each be deemed to have
made a Revolving Credit Loan in Dollars under the Base Rate Option to the
Borrowers in that amount. If any Lender so notified fails to make available in
Dollars to the Agent for the account of the Issuing Bank the amount of such
Lender's Ratable Share of such Dollar Equivalent amount by no later than 2:00
p.m., Eastern time on the Drawing Date, then interest shall accrue on such
Lender's obligation to make such payment, from the Drawing Date to the date on
which such Lender makes such payment (i) at a rate per annum equal to the
Federal Funds Effective Rate during the first three days following the Drawing
Date and (ii) at a rate per annum equal to the rate applicable to Loans under
the Revolving Credit Base Rate Option on and after the fourth day following the
Drawing Date. The Issuing Bank will promptly give notice of the occurrence of
the Drawing Date, but failure of the Issuing Bank to give any such notice on the
Drawing Date or in sufficient time to enable any Lender to effect such payment
on such date shall not relieve such Lender from its obligation under this
Section 2.13.3.3.
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2.13.3.4 With respect to any unreimbursed drawing
that is not converted into Revolving Credit Loans under the Base Rate Option to
a Borrower in whole or in part as contemplated by Section 2.13.3.2, because of
such Borrower's failure to satisfy the conditions set forth in Section 6.2
(other than any notice requirements) or for any other reason, such Borrower
shall be deemed to have incurred from the Agent a Letter of Credit Borrowing in
Dollars in the Dollar Equivalent amount of such drawing. Such Letter of Credit
Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at the rate per annum applicable to the Revolving Credit Loans
under the Base Rate Option. Each Lender's payment to the Agent for the account
of the Issuing Bank pursuant to Section 2.13.3.3 shall be deemed to be a payment
in respect of its participation in such Letter of Credit Borrowing and shall
constitute a Participation Advance from such Lender in satisfaction of its
participation obligation under this Section 2.13.3.
2.13.4 Repayment of Participation Advances.
2.13.4.1 Upon (and only upon) receipt by the Issuing
Bank for its account of immediately available funds from a Borrower (i) in
reimbursement of any payment made by the Issuing Bank under the Letter of Credit
with respect to which any Lender has made a Participation Advance to the Issuing
Bank, or (ii) in payment of interest on such a payment made by the Issuing Bank
under such a Letter of Credit, the Issuing Bank will pay to each Lender, in the
same funds as those received by the Issuing Bank, the amount of such Lender's
Ratable Share of such funds, except the Issuing Bank shall retain the amount of
the Ratable Share of such funds of any Lender that did not make a Participation
Advance in respect of such payment by Issuing Bank.
2.13.4.2 If the Issuing Bank is required at any time
to return to any Loan Party, or to a trustee, receiver, liquidator, custodian,
or any official in any Insolvency Proceeding, any portion of the payments made
by any Loan Party to the Agent pursuant to Section 2.13.4.1 in reimbursement of
a payment made under the Letter of Credit or interest or fee thereon, each
Lender shall, on demand of the Issuing Bank, forthwith return to the Issuing
Bank the amount of its Ratable Share of any amounts so returned by the Issuing
Bank plus interest thereon from the date such demand is made to the date such
amounts are returned by such Lender to the Issuing Bank, at a rate per annum
equal to the Federal Funds Effective Rate in effect from time to time.
2.13.5 Documentation. Each Loan Party agrees to be bound by
the terms of the Issuing Bank's application and agreement for letters of credit
and the Issuing Bank's written regulations and customary practices relating to
letters of credit, though such interpretation may be different from any Loan
Party's own. In the event of a conflict between such application or agreement
and this Agreement, this Agreement shall govern. It is understood and agreed
that, except in the case of gross negligence or willful misconduct, the Issuing
Bank shall not be liable for any error, negligence and/or mistakes, whether of
omission or commission, in following any Borrower's or any
31
Loan Party's instructions or those contained in the Letters of Credit or any
modifications, amendments or supplements thereto.
2.13.6 Determinations to Honor Drawing Requests. In
determining whether to honor any request for drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Bank shall be responsible only to
determine that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they comply on their face
with the requirements of such Letter of Credit.
2.13.7 Nature of Participation and Reimbursement Obligations.
Each Lender's obligation in accordance with this Agreement to make the Revolving
Credit Loans or Participation Advances, as contemplated by Section 2.13.3, as a
result of a drawing under a Letter of Credit, and the Obligations of the
Borrowers to reimburse the Agent upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Section 2.13 under all circumstances,
including the following circumstances:
(i) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Issuing
Bank, the Agent, the Borrowers or any other Person for any
reason whatsoever;
(ii) the failure of any Loan Party or any other
Person to comply, in connection with a Letter of Credit
Borrowing, with the conditions set forth in Sections 2.1, 2.5
, 2.5.2 or 6.2 or as otherwise set forth in this Agreement for
the making of a Revolving Credit Loan, it being acknowledged
that such conditions are not required for the making of a
Letter of Credit Borrowing and the obligation of the Lenders
to make Participation Advances under Section 2.13.3;
(iii) any lack of validity or enforceability of any
Letter of Credit;
(iv) the existence of any claim, setoff, defense or
other right which any Loan Party or any Lender may have at any
time against a beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such transferee may be
acting), the Issuing Bank, the Agent or any Lender or any
other Person or, whether in connection with this Agreement,
the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any
Loan Parties or any of their Subsidiaries and the beneficiary
for which any Letter of Credit was procured);
(v) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
even if the Issuing Bank has been notified thereof;
32
(vi) payment by the Issuing Bank under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not comply with the terms of such
Letter of Credit;
(vii) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of any Loan Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other Loan
Document by any party thereto;
(ix) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(x) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing;
(xi) the fact that the Expiration Date shall have
passed or this Agreement or the Commitments hereunder shall
have been terminated; and
(xii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
2.13.8 Indemnity. In addition to amounts payable as provided
in Section 9.5, the Loan Parties hereby jointly and severally agree to protect,
indemnify, pay and save harmless the Issuing Bank from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel and allocated
costs of internal counsel) which the Issuing Bank may incur or be subject to as
a consequence, direct or indirect, of (i) the issuance of any Letter of Credit,
other than as a result of (A) the gross negligence or willful misconduct of the
Issuing Bank as determined by a final judgment of a court of competent
jurisdiction or (B) subject to the following clause (ii), the wrongful dishonor
by the Issuing Bank of a proper demand for payment made under any Letter of
Credit, or (iii) the failure of the Issuing Bank to honor a drawing under any
such Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Governmental
Acts").
2.13.9 Liability for Acts and Omissions. As between any Loan
Party and the Issuing Bank, such Loan Party assumes all risks of the acts and
omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for an issuance of any
such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged (even if the
Issuing Bank
33
shall have been notified thereof); (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such 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) the failure of the beneficiary of any such Letter of Credit, or
any other party to which such Letter of Credit may be transferred, to comply
fully with any conditions required in order to draw upon such Letter of Credit
or any other claim of any Loan Party against any beneficiary of such Letter of
Credit, or any such transferee, or any dispute between or among any Loan Party
and any beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Bank, including any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of the Agent's rights or powers hereunder. Nothing in the preceding sentence
shall relieve the Issuing Bank from liability for the Issuing Bank's gross
negligence or willful misconduct in connection with actions or omissions
described in such clauses (i) through (viii) of such sentence.
In furtherance and extension and not in limitation of
the specific provisions set forth above, any action taken or omitted by the
Issuing Bank under or in connection with the Letters of Credit issued by it or
any documents and certificates delivered thereunder, if taken or omitted in good
faith, shall not put the Issuing Bank under any resulting liability to the
Borrowers or any Lender.
2.13.10 Notice of Actual Issuances. Promptly upon issuing any
Letter of Credit, the Issuing Bank will notify the Agent of the date of such
Letter of Credit, the amount thereof and the beneficiary or beneficiaries
thereof. Upon receipt of such notice, the Agent shall promptly notify each
Lender of the contents thereof and the amount of such Lender's participation in
the relevant Letter of Credit. Promptly upon issuing any Letter of Credit, the
Issuing Bank will send a copy of such Letter of Credit to the Agent.
2.13.11 Proposed Extension of Expiry Dates. The Issuing Bank
or the Borrowers shall give the Agent at least five (5) Business Days' notice
before such Issuing Bank extends the expiry date of any Letter of Credit issued
by it. Such notice shall (i) identify such Letter of Credit, (ii) specify the
date on which such extension is to be made (or the last day on which such
Issuing Bank can give notice to prevent such extension from occurring) and (iii)
specify the date to which such expiry date is to be so extended. Upon receipt of
such notice, the Agent shall promptly notify each Lender of the contents
thereof. The Issuing Bank shall not extend (or allow extension of) the expiry
date of any Letter of Credit if (A) the extended expiry date would be after the
tenth Business Day before the Expiration Date or (B) the Issuing Bank shall have
been
34
notified by any Borrower, the Agent or any Lender expressly to the effect that
any condition specified in Section 6.2 is not satisfied at the time such Letter
of Credit is to be extended.
2.13.12 Information to be Provided to Agent. The Issuing Bank
shall furnish to the Agent upon request such information as the Agent shall
reasonably request in order to calculate the Letters of Credit Outstanding and
the Letter of Credit Fee."
2.14 Currency Repayments. Notwithstanding anything contained herein to
the contrary, the entire amount of principal of and interest on any Loan made in
an Optional Currency shall be repaid in the same Optional Currency in which such
Loan was made, provided, however, that if it is impossible or illegal for a
Borrower to effect payment of a Loan in the Optional Currency in which such Loan
was made, or if such Borrower defaults in its obligations to do so, the Required
Lenders may at their option permit such payment to be made (i) at and to a
different location, subsidiary, affiliate or correspondent of Agent, or (ii) in
the Equivalent Amount of Dollars or (iii) in an Equivalent Amount of such other
currency (freely convertible into Dollars) as the Required Lenders may solely at
their option designate. Upon any events described in (i) through (iii) of the
preceding sentence, such Borrower shall make such payment and Borrower agrees to
hold each Lender harmless from and against any loss incurred by any Lender
arising from the cost to such Lender of any premium, any costs of exchange, the
cost of hedging and covering the Optional Currency in which such Loan was
originally made, and from any change in the value of Dollars, or such other
currency, in relation to the Optional Currency that was due and owing. Such loss
shall be calculated for the period commencing with the first day of the Interest
Period for such Loan and continuing through the date of payment thereof. Without
prejudice to the survival of any other agreement of the Borrowers hereunder, the
Borrowers' obligations under this Section 2.14 shall survive termination of this
Agreement.
2.15 Optional Currency Amounts. Notwithstanding anything contained
herein to the contrary, the Agent may, with respect to notices by a Borrower for
Loans in an Optional Currency or voluntary prepayments of less than the full
amount of an Optional Currency Borrowing Tranche, engage in reasonable rounding
of the Optional Currency amounts requested to be loaned or repaid; and, in such
event, the Agent shall promptly notify such Borrower and the Lenders of such
rounded amounts and such Borrower's request or notice shall thereby be deemed to
reflect such rounded amounts.
3. INTEREST RATES
3.1 Interest Rate Options. Each Borrower shall pay interest in respect
of the outstanding unpaid principal amount of the Loans as selected by it from
the Base Rate Option or Euro-Rate Option set forth below applicable to the
Loans, it being understood that, subject to the provisions of this Agreement,
such Borrower may select different Interest Rate Options and different Interest
Periods to apply simultaneously to the Loans comprising different Borrowing
Tranches and may convert to or renew one or
35
more Interest Rate Options with respect to all or any portion of the Loans
comprising any Borrowing Tranche, provided that there shall not be at any one
time outstanding more than six (6) Borrowing Tranches in the aggregate among all
of the Loans, and provided further that only the Base Rate Option shall apply to
the Swing Loans. If at any time the designated rate applicable to any Loan made
by any Lender exceeds such Lender's highest lawful rate, the rate of interest on
such Lender's Loan shall be limited to such Lender's highest lawful rate.
Subject to Section 2.14, interest on the principal amount of each Loan made in
an Optional Currency shall be paid by the Borrower in such Optional Currency.
3.1.1 Interest Rate Options. Each Borrower shall have the
right to select from the following Interest Rate Options applicable to the
Revolving Credit Loans (subject to the provisions above regarding Swing Loans),
except that no Loan to which a Base Rate shall apply may be made in an Optional
Currency:
(i) Base Rate Option: A fluctuating rate per annum
(computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed) equal to the Base Rate
plus the Applicable Margin, such interest rate to change
automatically from time to time effective as of the effective
date of each change in the Base Rate; or
(ii) Euro-Rate Option: A rate per annum (computed on
the basis of a year of 360 days and actual days elapsed,
provided that, for Loans made in an Optional Currency for
which a 365-day basis is the only market practice available to
the Agent, such rate shall be calculated on the basis of a
year of 365 or 366 days, as the case may be for the actual
days elapsed) equal to the Euro-Rate plus the Applicable
Margin.
The Applicable Margin shall be subject to adjustment quarterly to the
percentage, based on the ratio of Total Indebtedness to Consolidated EBITDA, as
set forth on Schedule 1.1(A). Each adjustment in the Applicable Rate shall be
effective on the second Business Day next following delivery to the Agent of the
financial statements or certificate required to be delivered by the Company
pursuant to Section 7.3.1 showing the basis for such adjustment. In the event
that such financial statements or certificate shall not have been delivered to
the Agent on the date required for such delivery pursuant to Section 7.3.1, then
on the second Business Day following such date, the Applicable Margin shall be
increased to the highest Applicable Margin set forth on Schedule 1.1(A),
provided that after delivery of such financial statements or certificate
(effective two Business Days following delivery) the Applicable Margin shall be
adjusted to that which would have been effective had such financial statements
or certificate been timely delivered. Each Borrowing Tranche to which a
Euro-Rate applies shall bear interest from and including the first day of the
Interest Period applicable thereto, but not including, the last day of such
Interest Period. No Interest Period may end after the Expiration Date.
36
3.1.2 Rate Quotations. A Borrower may call the Agent on or
before the date on which a Loan Request is to be delivered to receive an
indication of the interest rates and the applicable currency exchange rates then
in effect, but it is acknowledged that such projection shall not be binding on
the Agent or the Lenders nor affect the rate of interest or the calculation of
Equivalent Amounts which thereafter are actually in effect when the election is
made.
3.1.3 Change in Fees or Interest Rates. If the Applicable
Margin is increased or reduced with respect to any period for which a Borrower
has already paid interest or Commitment Fees, the Agent shall recalculate the
interest or Commitment Fees due from or payable to such Borrower and shall give
such Borrower and the Lenders written notice of such recalculation not later
than fifteen (15) Business Days after written notice from the Agent to the
Borrowers of such increase or decrease.
3.1.3.1 Any additional interest or Commitment Fee due
from a Borrower shall be paid to the Agent for the account of the Lenders on the
next date on which an interest or fee payment is due; provided, however, that if
there are no Loans outstanding or if the Loans are due and payable, such
additional interest or Commitment Fee shall be paid promptly after receipt of
written request for payment from the Agent.
3.1.3.2 Any interest or Commitment Fee refund due to
a Borrower shall be credited against payments otherwise due from such Borrower
on the next interest or fee payment due date or, if the Loans have been repaid
and the Lenders are no longer committed to lend under this Agreement, the
Lenders shall pay the Agent for the account of such Borrower such interest or
Commitment Fee refund not later than five (5) Business Days after written notice
from the Agent to the Lenders.
3.2 Interest Periods. At any time when a Borrower shall select, convert
to or renew a Euro-Rate Option, such Borrower shall notify the Agent thereof by
delivering a Loan Request at least four (4) Business Days prior to the effective
date of such Interest Rate Option, with respect to an Optional Currency Loan,
and three (3) Business Days prior to the effective date of such Interest Rate
Option, with respect to a Dollar Loan. The notice shall specify an interest
period (the "Interest Period") during which such Interest Rate Option shall
apply, such Interest Period to be one (1), two (2), three (3) or six (6) Months.
Notwithstanding the preceding sentence, the following provisions shall apply to
any selection of, renewal of, or conversion to a Euro-Rate Option:
3.2.1 Ending Date and Business Day. Any Interest Period which
would otherwise end on a date which is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
3.2.2 Amount of Borrowing Tranche. The Dollar Equivalent
amount of each Borrowing Tranche of Euro-Rate Loans shall not be less than
$5,000,000 and in integral multiples of $1,000,000 for Euro-Rate Loans in excess
of $5,000,000;
37
3.2.3 Termination Before Expiration Date. A Borrower shall not
select, convert to or renew an Interest Period for any portion of the Loans that
would end after the Expiration Date; and
3.2.4 Renewals. In the case of the renewal of a Euro-Rate
Option at the end of an Interest Period, the first day of the new Interest
Period shall be the last day of the preceding Interest Period, without
duplication in payment of interest for such day.
3.3 Interest After Default. To the extent permitted by Law, upon the
occurrence of an Event of Default and until such time such Event of Default
shall have been cured or waived:
3.3.1 Letter of Credit Fees, Interest Rate. The Letter of
Credit Fees and the rate of interest for each Loan otherwise applicable pursuant
to Section 2.13.2 or Section 3.1, respectively, shall be increased by 2.0% per
annum; and
3.3.2 Other Obligations. Each other Obligation hereunder if
not paid when due shall bear interest at a rate per annum equal to the sum of
the rate of interest applicable under the Base Rate Option plus an additional
2.0% per annum from the time such Obligation becomes due and payable and until
it is paid in full.
3.3.3 Acknowledgment. Each Borrower acknowledges that the
increase in rates referred to in this Section 3.3 reflects, among other things,
the fact that such Loans or other amounts have become a substantially greater
risk given their default status and that the Lenders are entitled to additional
compensation for such risk; and all such interest shall be payable by such
Borrower upon demand by the Agent.
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits
Not Available.
3.4.1 Unascertainable. If on any date on which a Euro-Rate
would otherwise be determined, the Agent shall have determined that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the London interbank market relating to the
Euro-Rate, the Agent shall have the rights specified in
Section 3.4.3.
3.4.2 Illegality; Increased Costs; Deposits Not Available. If
at any time any Lender shall have determined that:
(i) the making, maintenance or funding of any Loan to
which a Euro-Rate Option applies has been made impracticable
or unlawful by compliance by such Lender in good faith with
any Law or any interpretation or application thereof by any
Official Body or with any
38
request or directive of any such Official Body (whether or not
having the force of Law), or
(ii) such Euro-Rate Option will not adequately and
fairly reflect the cost to such Lender of the establishment or
maintenance of any such Loan, or
(iii) after making all reasonable efforts, deposits
of the relevant amount in Dollars or in the Optional Currency
(as applicable) for the relevant Interest Period for a Loan to
which a Euro-Rate Option applies, respectively, are not
available to such Lender with respect to such Loan, in the
London interbank market, then the Agent shall have the rights
specified in Section 3.4.3.
3.4.3 Agent's and Lender's Rights. In the case of any event
specified in Section 3.4.1 above, the Agent shall promptly so notify the Lenders
and the Borrowers thereof, and in the case of an event specified in Section
3.4.2 above, such Lender shall promptly so notify the Agent and endorse a
certificate to such notice as to the specific circumstances of such notice
(which certificate shall set forth in reasonable detail the calculations used by
the applicable Lender to arrive at the amount or amounts claimed to be due), and
the Agent shall promptly send copies of such notice and certificate to the other
Lenders and the Borrowers. Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of (A) the Lenders, in the case of such notice given by the Agent, or (B) such
Lender, in the case of such notice given by such Lender, to allow the Borrowers
to select, convert to or renew a Euro-Rate Option or select an Optional Currency
(as applicable) shall be suspended until the Agent shall have later notified the
Borrowers, or such Lender shall have later notified the Agent, of the Agent's or
such Lender's, as the case may be, determination that the circumstances giving
rise to such previous determination no longer exist. If at any time the Agent
makes a determination under Section 3.4.1 and a Borrower has previously notified
the Agent of its selection of, conversion to or renewal of a Euro-Rate Option
and such Interest Rate Option has not yet gone into effect, such notification
shall be deemed to provide for the selection of, conversion to or renewal of the
Base Rate Option otherwise available with respect to such Loans. If any Lender
notifies the Agent of a determination under Section 3.4.2, the Borrowers shall,
subject to the Borrowers' indemnification Obligations under Section 4.6.2, as to
any Loan of the Lender to which a Euro-Rate Option applies, on the date
specified in such notice either (i) as applicable, convert such Loan to the Base
Rate Option otherwise available with respect to such Loan or select a different
Optional Currency or Dollars, or (ii) prepay such Loan in accordance with
Section 4.4. Absent due notice from such Borrower of conversion or prepayment,
such Loan shall automatically be converted to the Base Rate Option otherwise
available with respect to such Loan upon such specified date. Notwithstanding
any term contained herein to the contrary, no amounts shall be payable with
respect to reduction in rate of return incurred more than six (6) months before
a Lender demands compensation under this Section 3.4.3, and no demand for
payment
39
under this Section shall be made unless such Lender shall make comparable
demands of other similarly situated borrowers.
3.5 Selection of Interest Rate Options; Selection of Optional Currency.
If a Borrower fails to select a new Interest Period or Optional Currency to
apply to any Borrowing Tranche of Loans under the Euro-Rate Option at the
expiration of an existing Interest Period applicable to such Borrowing Tranche
in accordance with the provisions of Section 3.2, such Borrower shall be deemed
to have converted such Borrowing Tranche to the Base Rate Option in U.S.
Dollars, commencing upon the last day of the existing Interest Period.
4. PAYMENTS
4.1 Payments. All payments and prepayments to be made in respect of
principal, interest, Commitment Fees, Facility Fees, Optional Currency Loan
Processing Fees, Letter of Credit Fees, Agent's Fee or other fees or amounts due
from a Borrower hereunder shall be payable prior to 12:00 Noon Eastern time on
the date when due without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by such Borrower, and without setoff,
counterclaim or other deduction of any nature, and an action therefor shall
immediately accrue. Such payments shall be made to the Agent at the Principal
Office for the account of PNC Bank with respect to the Swing Loans and for the
ratable accounts of the Lenders with respect to the Revolving Credit Loans, in
U.S. Dollars except that payments of principal or interest shall be made in the
currency in which such Loan was made, and in immediately available funds, and
the Agent shall promptly distribute such amounts to the Lenders in immediately
available funds, provided that in the event payments are received by 12:00 Noon
Eastern time by the Agent with respect to the Loans and such payments are not
distributed to the Lenders on the same day received by the Agent, the Agent
shall pay the Lenders the Federal Funds Effective Rate in the case of Loans or
other amounts due in Dollars, or the Overnight Rate in the case of Loans or
other amounts due in an Optional Currency, with respect to the amount of such
payments for each day held by the Agent and not distributed to the Lenders. The
Agent's and each Lender's statement of account, ledger or other relevant record
shall, in the absence of manifest error, be conclusive as the statement of the
amount of principal of and interest on the Loans and other amounts owing under
this Agreement (including the Equivalent Amounts of the applicable currencies
where such computations are required) and shall be deemed an "account stated."
4.2 Pro Rata Treatment of Lenders. Each borrowing of Revolving Credit
Loans shall be allocated to each Lender according to its Ratable Share, and each
selection of, conversion to or renewal of any Interest Rate Option and each
payment or prepayment by a Borrower with respect to principal or interest on the
Revolving Credit Loans or Commitment Fees, Facility Fees, Letter of Credit Fees,
or other fees (except for the Agent's Fee and the Optional Currency Loan
Processing Fee) or amounts due from the Borrowers hereunder to the Lenders with
respect to the Loans, shall (except as provided in Section 3.4.3 in the case of
an event specified in Section 3.4, 4.4.2 or 4.6)
40
be made in proportion to the applicable Loans outstanding from each Lender and,
if no such Loans are then outstanding, in proportion to the Ratable Share of
each Lender. Notwithstanding any of the foregoing, each borrowing or payment or
prepayment by a Borrower of principal, interest, fees or other amounts from the
Borrower with respect to Swing Loans shall be made by or to PNC Bank according
to Section 2.
4.3 Interest Payment Dates. Interest on Loans to which the Base Rate
Option applies shall be due and payable in arrears on the last Business Day of
each September, December, March and June after the date hereof and on the
Expiration Date or upon acceleration of the Loans. Interest on Loans to which
the Euro-Rate Option applies shall be due and payable in the currency in which
such Loan was made on the last day of each Interest Period for those Loans and,
if such Interest Period is longer than three (3) Months, also on the 90th day of
such Interest Period. Interest on mandatory prepayments of principal under
Section 4.5 shall be made in the currency in which such Loan was made and shall
be due on the date such mandatory prepayment is due. Interest on the principal
amount of each Loan or other monetary Obligation shall be due and payable in the
currency in which such Loan was made on demand after such principal amount or
other monetary Obligation becomes due and payable (whether on the stated
maturity date, upon acceleration or otherwise).
4.4 Voluntary Prepayments.
4.4.1 Right to Prepay. Each Borrower shall have the right at
its option from time to time to prepay the Loans in whole or part without
premium or penalty (except as provided in Section 4.4.2 below or in Section 4.6)
in the currency in which such Loan was made:
(i) at any time with respect to any Loan to which the
Base Rate Option applies,
(ii) on the last day of the applicable Interest
Period with respect to Loans to which a Euro-Rate Option
applies,
(iii) on the date specified in a notice by any Lender
pursuant to Section 3.4 with respect to any Loan to which a
Euro-Rate Option applies.
Whenever a Borrower desires to prepay any part of the
Loans, it shall provide a prepayment notice to the Agent by 1:00 p.m. Eastern
time at least one (1) Business Day prior to the date of prepayment of the
Revolving Credit Loans or no later than 2:00 p.m. Eastern time on the date of
prepayment of Swing Loans, setting forth the following information:
(x) the date, which shall be a Business Day, on which
the proposed prepayment is to be made;
(y) a statement indicating the application of the
prepayment between the Swing Loans and Revolving Credit Loans;
and
41
(z) the total principal amount and currency of such
prepayment, the Dollar Equivalent amount of which shall not be
less than $500,000 for any Swing Loan or $2,000,000 for any
Revolving Credit Loan.
All prepayment notices shall be irrevocable. The
principal amount of the Loans for which a prepayment notice is given, together
with interest on such principal amount except with respect to Loans to which the
Base Rate Option applies, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made in
the currency in which such Loan was made. Except as provided in Section 3.4.3,
if a Borrower prepays a Loan but fails to specify the applicable Borrowing
Tranche which such Borrower is prepaying, the prepayment shall be applied (i)
first to Revolving Credit Loans; and (ii) after giving effect to the allocations
in clause (i) above and in the preceding sentence, first to Loans to which the
Base Rate Option applies, then to Dollar Loans to which the Euro-Rate Option
applies, and then to Optional Currency Loans. Any prepayment hereunder shall be
subject to the Borrower's Obligation to indemnify the Lenders under Section
4.6.2.
4.4.2 Replacement of a Lender. In the event any Lender (i)
gives notice under Section 3.4 or Section 4.6.1, (ii) does not fund any
Revolving Credit Loan in accordance with Section 2.6.1, (iii) does not approve
any action as to which consent of the Required Lenders is requested by a
Borrower and obtained hereunder, or (iv) becomes subject to the control of an
Official Body (other than normal and customary supervision), and provided no
Event of Default or Potential Default has occurred and is continuing, then such
Borrower shall have the right at its option, with the consent of the Agent,
which shall not be unreasonably withheld, to prepay the Loans of such Lender in
whole, together with all interest accrued thereon, and terminate such Lender's
Commitment within ninety (90) days after (w) receipt of such Lender's notice
under Section 3.4 or 4.6.1, (x) the date such Lender has failed to fund any
Revolving Credit Loan in accordance with Section 2.6.1, (y) the date of
obtaining the consent which such Lender has not approved, or (z) the date such
Lender became subject to the control of an Official Body, as applicable;
provided that such Borrower shall also pay to such Lender at the time of such
prepayment any amounts required under Section 4.6 and any accrued interest due
on such amount and any related fees and any other Obligations owed to such
Lender; provided, however, that the Commitment of such Lender may be provided by
one or more of the remaining Lenders or a replacement bank acceptable to the
Agent; provided, further, the remaining Lenders shall have no obligation
hereunder to increase their Commitments. Notwithstanding the foregoing, the
Agent may only be replaced subject to the requirements of Section 9.13 and
provided that all Letters of Credit have expired or been terminated or replaced.
4.4.3 Change of Lending Office. Each Lender agrees that upon
the occurrence of any event giving rise to increased costs or other special
payments under Section 3.4.2 or Section 4.6.1 with respect to such Lender, it
will if requested by a Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another Lending Office for
any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender
42
and its Lending Office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the
operation of such Section. Nothing is this Section 4.4.3 shall affect or
postpone any of the Obligations of the Borrowers or the rights of the Agent or
any Lender provided in this Agreement.
4.5 Mandatory Prepayments.
4.5.1 Currency Fluctuations. If on any Computation Date the
Dollar Equivalent Revolving Facility Usage is equal to or greater than 105% of
the Commitments as a result of a change in exchange rates between one (1) or
more Optional Currencies and Dollars, then the Agent shall notify the Borrowers
of the same. The Borrowers shall pay or prepay Loans (subject to Borrower
indemnity obligations under Sections 4.4 and 4.6) within one (1) Business Day
after receiving such notice such that the Dollar Equivalent Revolving Facility
Usage shall not exceed the aggregate Commitments after giving effect to such
payments or prepayments.
4.5.2 Application Among Interest Rate Options. All prepayments
required pursuant to this Section 4.5 shall first be applied among the Interest
Rate Options to the principal amount of the Loans subject to the Base Rate
Option, then to Dollar Loans subject to a Euro-Rate Option and then to Optional
Currency Loans subject to the Euro-Rate Option. In accordance with Section
4.6.2, the Borrowers shall indemnify the Lenders for any loss or expense,
including loss of margin, incurred with respect to any such prepayments applied
against Loans subject to a Euro-Rate Option on any day other than the last day
of the applicable Interest Period.
4.6 Additional Compensation in Certain Circumstances.
4.6.1 Increased Costs or Reduced Return Resulting from Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law, guideline or
interpretation or any change in any Law, guideline or interpretation or
application thereof by any Official Body charged with the interpretation or
administration thereof or compliance with any request or directive (whether or
not having the force of Law) of any central bank or other Official Body:
(i) subjects any Lender to any tax or changes the
basis of taxation with respect to this Agreement, the Loans or
payments by the Borrowers of principal, interest, Commitment
Fees, or other amounts due from the Borrowers hereunder
(except for taxes on the overall net income of such Lender),
(ii) imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against
credits or commitments to extend credit extended by, or assets
(funded or contingent) of, deposits with or for the account
of, or other acquisitions of funds by, any Lender or any
Lending Office of any Lender, or
43
(iii) imposes, modifies or deems applicable any
capital adequacy or similar requirement (A) against assets
(funded or contingent) of, or letters of credit, other credits
or commitments to extend credit extended by, any Lender, or
(B) otherwise applicable to the obligations of any Lender or
any Lending Office of any Lender under this Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender or its Lending Office with respect to this Agreement, or the making,
maintenance or funding of any part of the Loans (or, in the case of any capital
adequacy or similar requirement, to have the effect of reducing the rate of
return on any Lender's capital, taking into consideration such Lender's
customary policies with respect to capital adequacy) by an amount which such
Lender in its sole discretion deems to be material, such Lender shall from time
to time notify the Borrowers and the Agent of the amount determined in good
faith (using any averaging and attribution methods employed in good faith) by
such Lender to be necessary to compensate such Lender for such increase in cost,
reduction of income, additional expense or reduced rate of return. Such notice
shall set forth in reasonable detail the basis for such determination. Such
amount shall be due and payable by the Borrowers to such Lender ten (10)
Business Days after such notice is given.
4.6.2 Indemnity. In addition to the compensation required by
Section 4.6.1, the Borrowers shall jointly and severally indemnify each Lender
against all liabilities, losses or expenses (including loss of margin, any loss
or expense incurred in liquidating or employing deposits from third parties and
any loss or expense incurred in connection with funds acquired by a Lender to
fund or maintain Loans subject to a Euro-Rate Option) which such Lender sustains
or incurs as a consequence of any
(i) payment, prepayment, conversion or renewal of any
Loan to which a Euro-Rate Option applies on a day other than
the last day of the corresponding Interest Period (whether or
not such payment or prepayment is mandatory, voluntary or
automatic and whether or not such payment or prepayment is
then due),
(ii) attempt by a Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any
Loan Requests under Section 2.5 or Section 3.2 or notice
relating to prepayments under Section 4.4, or
(iii) default by a Borrower in the performance or
observance of any covenant or condition contained in this
Agreement or any other Loan Document, including any failure of
any Borrower to pay when due (by acceleration or otherwise)
any principal, interest, Commitment Fee or any other amount
due hereunder;
44
If any Lender sustains or incurs any such loss or
expense, it shall from time to time notify the Borrowers of the amount
determined in good faith by such Lender (which determination may include such
assumptions, allocations of costs and expenses and averaging or attribution
methods as such Lender shall deem reasonable) to be necessary to indemnify such
Lender for such loss or expense. Such notice shall set forth in reasonable
detail the basis for such determination. Such amount shall be due and payable by
the Borrowers to such Lender ten (10) Business Days after such notice is given.
4.7 Interbank Market Presumption. For all purposes of this Agreement
with respect to any aspects of the Euro-Rate, any Loan under the Euro-Rate
Option or any Optional Currency, each Lender and Agent shall be presumed to have
obtained rates, funding, currencies, deposits, and the like in the applicable
interbank market regardless whether it did so or not; and, each Lender's and
Agent's determination of amounts payable under, and actions required or
authorized by, Sections 3.4 and 4.6 shall be calculated, at each Lender's and
Agent's option, as though each Lender and Agent funded its Ratable Share of each
Borrowing Tranche of Loans under the Euro-Rate Option through the purchase of
deposits of the types and maturities corresponding to the deposits used as a
reference in accordance with the terms hereof in determining the Euro-Rate
applicable to such Loans, whether in fact that is the case.
4.8 Taxes.
4.8.1 No Deductions. All payments made by Borrowers hereunder
shall be made free and clear of and without deduction for any present or future
taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the net income of
any Lender and all income and franchise taxes applicable to any bank of the
United States (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If a Borrower shall be required by Law to deduct any Taxes from or in
respect of any sum payable hereunder, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.8.1) each
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall timely pay the full amount deducted to the relevant tax
authority or other authority in accordance with applicable Law.
4.8.2 Stamp Taxes. 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 or
from the execution, delivery, or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
4.8.3 Indemnification for Taxes Paid by a Lender. The
Borrowers shall indemnify each Lender for the full amount of Taxes or Other
Taxes (including, without
45
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.8.3) paid by any Lender 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 30 days from the date a
Lender makes written demand therefor.
4.8.4 Certificate. Within 30 days after the date of any
payment of any Taxes by the Borrowers, the Borrowers shall furnish to each
Lender, at its address referred to herein, the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect of any
payment by a Borrower, such Borrower shall, if so requested by a Lender, provide
a certificate of an officer of such Borrower to that effect.
4.8.5 Survival. Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in Sections 4.8.1 through 4.8.4 shall survive the payment in
full of principal and interest hereunder and under any instrument delivered
hereunder.
4.9 Judgment Currency.
4.9.1 Currency Conversion Procedures for Judgments. If for the
purposes of obtaining judgment in any court it is necessary to convert a sum due
hereunder in any currency (the "Original Currency") into another currency (the
"Other Currency"), the parties hereby agree, to the fullest extent permitted by
Law, that the rate of exchange used shall be that at which in accordance with
normal banking procedures each Lender could purchase the Original Currency with
the Other Currency after any premium and costs of exchange on the Business Day
preceding that on which final judgment is given.
4.9.2 Indemnity in Certain Events. The obligation of the
Borrowers in respect of any sum due from the Borrowers to any Lender hereunder
shall, notwithstanding any judgment in an Other Currency, whether pursuant to a
judgment or otherwise, be discharged only to the extent that, on the Business
Day following receipt by any Lender of any sum adjudged to be so due in such
Other Currency, such Lender may in accordance with normal banking procedures
purchase the Original Currency with such Other Currency. If the amount of the
Original Currency so purchased is less than the sum originally due to such
Lender in the Original Currency, the Borrowers agree, as a separate obligation
and notwithstanding any such judgment or payment, to indemnify such Lender
against such loss.
4.10 Settlement Date Procedures. In order to minimize the transfer of
funds between the Lenders and the Agent, any Borrower may borrow, repay and
reborrow Swing Loans and PNC Bank may make Swing Loans as provided in Section
2.1.2 hereof during the period between Settlement Dates. Not later than 11:00
a.m., Eastern time, on each Settlement Date, the Agent shall notify each Lender
of its Ratable Share of the total of the Revolving Credit Loans and the Swing
Loans (each a "Required
46
Share"). Prior to 2:00 p.m., Eastern time, on such Settlement Date, each Lender
shall pay to the Agent the amount equal to the difference between its Required
Share and its Revolving Credit Loans, and the Agent shall pay to each Lender its
Ratable Share of all payments made by such Borrower to the Agent with respect to
the Revolving Credit Loans. The Agent shall also effect settlement in accordance
with the foregoing sentence on the proposed Borrowing Dates for Revolving Credit
Loans and on Mandatory Prepayment Dates and may at its option effect settlement
on any other Business Day. These settlement procedures are established solely as
a matter of administrative convenience, and nothing contained in this Section
4.10 shall relieve the Lenders of their obligations to fund Revolving Credit
Loans on dates other than a Settlement Date pursuant to Section 2.1.2. The Agent
may at any time at its option for any reason whatsoever require each Lender to
pay immediately to the Agent such Lender's Ratable Share of the outstanding
Revolving Credit Loans and each Lender may at any time require the Agent to pay
immediately to such Lender its Ratable Share of all payments made by the
Borrowers to the Agent with respect to the Revolving Credit Loans.
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties. The Loan Parties, represent and
warrant to the Agent and each of the Lenders as follows:
5.1.1 Organization and Qualification. Each Loan Party is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Loan Party has the lawful power to own or lease its
properties and to engage in the business it presently conducts or proposes to
conduct. Each Loan Party is duly licensed or qualified and in good standing in
each jurisdiction where the property owned or leased by it or the nature of the
business transacted by it or both makes such licensing or qualification
necessary where failure to so qualify could reasonably be expected to have a
Material Adverse Effect.
5.1.2 Capitalization and Ownership. The authorized capital
stock of the Company consists of the following: (i) 100,000,000 shares of Class
A nonvoting common stock, par value $.01, of which 20,726,863 shares were issued
and outstanding as of July 31, 1999; (ii) 10,000,000 shares of Class B voting
common stock, par value $.01, of which 1,769,314 shares were issued and
outstanding as of the Closing Date; (iii) 5,000,000 shares of preferred stock,
par value $.01, of which 0 shares were issued and outstanding as of the Closing
Date; (iv) 5,000 shares of 6% cumulative preferred stock, par value $100.00, of
which 3,984 shares were issued and outstanding as of the Closing Date; (v)
10,000 shares of cumulative preferred stock, 1972 Series, par value $100.00, of
which 2,600 were issued and outstanding as of the Closing Date; (vi) 30,000
shares of cumulative preferred stock, 1979 Series, par value $100.00, of which
21,963 shares were issued and outstanding as of the Closing Date, and (vii)
1,643 shares of 1986 10% Cumulative Preferred Stock, of which 0 shares were
issued and outstanding as of the Closing Date (collectively referred to as the
"Shares"). All of
47
the Shares have been validly issued and are fully paid and nonassessable, except
as provided in Wis. Stat. sec. 180.0622(2). As of the Closing Date, there are no
options, warrants or other rights outstanding to purchase any such Shares except
as indicated on Schedule 5.1.2.
5.1.3 Subsidiaries. Schedule 5.1.3 states the name of each of
the Company's Subsidiaries, its jurisdiction of incorporation, its authorized
capital stock, the issued and outstanding shares (referred to herein as the
"Subsidiary Shares") and the owners thereof if it is a corporation, its
outstanding partnership interests (the "Partnership Interests") if it is a
partnership and its outstanding limited liability company interests, interests
assigned to managers thereof and the voting rights associated therewith (the
"LLC Interests") if it is a limited liability company. Each Loan Party has good
and marketable title to all of the Subsidiary Shares, Partnership Interests and
LLC Interests it purports to own, free and clear in each case of any Lien. All
Subsidiary Shares, Partnership Interests and LLC Interests have been validly
issued, and all Subsidiary Shares are fully paid and nonassessable, except as
provided in Wis. Stat ss.180.0622(2). All capital contributions and other
consideration required to be made or paid in connection with the issuance of the
Partnership Interests and LLC Interests have been made or paid, as the case may
be. There are no options, warrants or other rights outstanding to purchase any
such Subsidiary Shares, Partnership Interests or LLC Interests except as
indicated on Schedule 5.1.3.
5.1.4 Power and Authority. Each Loan Party has full power to
enter into, execute, deliver and carry out this Agreement and the other Loan
Documents to which it is a party, to incur the Indebtedness contemplated by the
Loan Documents and to perform its Obligations under the Loan Documents to which
it is a party, and all such actions have been duly authorized by all necessary
proceedings on its part.
5.1.5 Validity and Binding Effect. This Agreement has been
duly and validly executed and delivered by each Loan Party and each other Loan
Document which any Loan Party is required to execute and deliver on or after the
date hereof will have been duly executed and delivered by such Loan Party on the
required date of delivery of such Loan Document. This Agreement and each other
Loan Document constitutes, or will constitute, legal, valid and binding
obligations of each Loan Party which is or will be a party thereto on and after
its date of delivery thereof, enforceable against such Loan Party in accordance
with its terms, except to the extent that enforceability of any of such Loan
Document may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforceability of creditors' rights generally
or limiting the right of specific performance.
5.1.6 No Conflict. Neither the execution and delivery of this
Agreement or the other Loan Documents by any Loan Party nor the consummation of
the transactions herein or therein contemplated or compliance with the terms and
provisions hereof or thereof by any of them will conflict with, constitute a
default under or result in any breach of (i) the terms and conditions of the
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, limited
48
liability company agreement or other organizational documents of any Loan Party
or (ii) any Law or any material agreement or instrument or order, writ,
judgment, injunction or decree to which any Loan Party or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to
which it is subject, or result in the creation or enforcement of any Lien,
charge or encumbrance whatsoever upon any property (now or hereafter acquired)
of any Loan Party or any of its Subsidiaries.
5.1.7 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Loan Party, threatened
against such Loan Party or any Subsidiary of such Loan Party at law or equity
before any Official Body which individually or in the aggregate could reasonably
be expected to result in any Material Adverse Effect. None of the Loan Parties
or any Subsidiaries of any Loan Party is in violation of any order, writ,
injunction or any decree of any Official Body which could reasonably be expected
to result in any Material Adverse Effect.
5.1.8 Title to Properties. Each Loan Party and each Subsidiary
of each Loan Party has good and marketable title to or valid leasehold interest
in all properties, assets and other rights which it purports to own or lease or
which are reflected as owned or leased on its books and records, free and clear
of all Liens and encumbrances except Permitted Liens, and subject to the terms
and conditions of the applicable leases. All leases of property are in full
force and effect without the necessity for any consent which has not previously
been obtained upon consummation of the transactions contemplated hereby.
5.1.9 Financial Statements.
(i) Historical Statements. The Company has delivered
to the Agent copies of its audited consolidated year-end financial statements
for and as of the end of the fiscal year ended July 31, 1998 (the "Annual
Statements"). In addition, the Company has delivered to the Agent copies of its
unaudited consolidated interim financial statements as of the end of the fiscal
quarters ended October 31, 1998, January 31, 1999 and April 30, 1999 (the
"Interim Statements") (the Annual and Interim Statements being collectively
referred to as the "Historical Statements"). The Historical Statements were
compiled from the books and records maintained by the Company's management, are
correct and complete in all material respects and fairly represent the
consolidated financial condition of the Company and its Subsidiaries as of their
dates and the results of operations for the fiscal periods then ended and have
been prepared in accordance with GAAP consistently applied, subject (in the case
of the Interim Statements) to normal year-end audit adjustments, none of which
could reasonably be expected to have a Material Adverse Effect.
(ii) Accuracy of Financial Statements. Neither the
Company nor any Subsidiary of the Company has any liabilities, contingent or
otherwise, or forward or long-term commitments that are not disclosed in the
Historical Statements or in the notes thereto, and except as disclosed therein
there are no unrealized or anticipated losses from any commitments of the
Company or any Subsidiary of the Company which
49
could reasonably be expected to cause a Material Adverse Effect. Since July 31,
1998, no event has occurred which could reasonably be expected to have a
Material Adverse Effect.
5.1.10 Use of Proceeds; Margin Stock; Section 20 Subsidiaries.
5.1.10.1 General. The Loan Parties intend to use the
proceeds of the Loans in accordance with Sections 2.10 and 7.1.10.
5.1.10.2 Margin Stock. None of the Loan Parties or
any Subsidiary of any Loan Party engages or intends to engage principally, or as
one of its important activities, in the business of extending credit for the
purpose, immediately, incidentally or ultimately, of purchasing or carrying
margin stock (within the meaning of Regulation U). No part of the proceeds of
any Loan has been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock or to refund Indebtedness originally
incurred for such purpose, or for any purpose which entails a violation of or
which is inconsistent with the provisions of the regulations of the Board of
Governors of the Federal Reserve System. None of the Loan Parties or any
Subsidiary of any Loan Party holds or intends to hold margin stock in such
amounts that more than 25% of the reasonable value of the assets of any Loan
Party or any Subsidiary of any Loan Party are or will be represented by margin
stock.
5.1.10.3 Section 20 Subsidiaries. The Loan Parties do
not intend to use and shall not use any portion of the proceeds of the Loans,
directly or indirectly, to purchase during the underwriting period, or for 30
days thereafter, Ineligible Securities being underwritten by a Section 20
Subsidiary.
5.1.11 Full Disclosure. Neither this Agreement nor any other
Loan Document, nor any certificate, statement, agreement or other documents
furnished to the Agent or any Lender in connection herewith or therewith,
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein, in
light of the circumstances under which they were made, not misleading. There is
no fact known to any Loan Party which materially adversely affects the business,
property, assets, financial condition, results of operations or prospects of any
Loan Party or Subsidiary of any Loan Party which has not been set forth in this
Agreement or in the certificates, statements, agreements or other documents
furnished in writing to the Agent and the Lenders prior to or at the date hereof
in connection with the transactions contemplated hereby.
5.1.12 Taxes. All federal, state, local and other tax returns
required to have been filed with respect to each Loan Party and each Subsidiary
of each Loan Party have been filed, and payment or adequate provision has been
made for the payment of all taxes, fees, assessments and other governmental
charges which have or may become due pursuant to said returns or to assessments
received, except to the extent that such taxes, fees, assessments and other
charges are being contested in
50
good faith by appropriate proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made. There are no agreements or waivers extending the statutory
period of limitations applicable to any federal income tax return of any Loan
Party or Subsidiary of any Loan Party for any period.
5.1.13 Consents and Approvals. No consent, approval,
exemption, order or authorization of, or a registration or filing with, any
Official Body or any other Person is required by any Law or any agreement in
connection with the execution, delivery and carrying out of this Agreement and
the other Loan Documents by any Loan Party except as listed on Schedule 5.1.13,
all of which shall have been obtained or made on or prior to the Closing Date
except as otherwise indicated on Schedule 5.1.13.
5.1.14 No Event of Default; Compliance with Instruments. No
event has occurred and is continuing and no condition exists or will exist after
giving effect to the borrowings or other extensions of credit to be made on the
Closing Date under or pursuant to the Loan Documents which constitutes an Event
of Default or Potential Default. None of the Loan Parties or any Subsidiaries of
any Loan Party is in violation of (i) any term of its certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents or (ii) any agreement or instrument to which it
is a party or by which it or any of its properties may be subject or bound where
such violation could reasonably be expected to have a Material Adverse Effect.
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc. Each
Loan Party and each Subsidiary of each Loan Party owns or possesses all the
patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate its
properties and to carry on its business as presently conducted and planned to be
conducted by such Loan Party or Subsidiary, without any infringement upon rights
of any other Person which could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
5.1.16 Insurance. All insurance policies and other bonds to
which any Loan Party is a party, are valid and in full force and effect. No
notice has been given or claim made and no grounds exist to cancel or avoid any
of such policies or bonds or to reduce the coverage provided thereby. Such
policies and bonds provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of each Loan
Party in accordance with prudent business practice in the industry of the Loan
Parties.
5.1.17 Compliance with Laws. The Loan Parties and their
Subsidiaries are in compliance with all applicable Laws (other than
Environmental Laws which are specifically addressed in Section 5.1.22) in all
jurisdictions in which any Loan Party or any Subsidiary of any Loan Party is
presently doing business except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
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5.1.18 Material Contracts; Burdensome Restrictions. All
material contracts relating to the business operations of each Loan Party and
each Subsidiary of each Loan Party, including all employee benefit plans and
Labor Contracts are valid, binding and enforceable upon such Loan Party or
Subsidiary and, to the Loan Parties' knowledge, each of the other parties
thereto in accordance with their respective terms, and there is no default
thereunder, to the Loan Parties' knowledge, with respect to parties other than
such Loan Party or Subsidiary. None of the Loan Parties or their Subsidiaries is
bound by any contractual obligation, or subject to any restriction in any
organization document, or any requirement of Law which could reasonably be
expected to result in a Material Adverse Effect.
5.1.19 Investment Companies; Regulated Entities. None of the
Loan Parties or their Subsidiaries is an "investment company" registered or
required to be registered under the Investment Company Act of 1940 or under the
"control" of an "investment company" as such terms are defined in the Investment
Company Act of 1940 and shall not become such an "investment company" or under
such "control." None of the Loan Parties or their Subsidiaries is subject to any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness for borrowed money.
5.1.20 Plans and Benefit Arrangements.
(i) The Company and each other member of the ERISA
Group are in compliance in all respects with any applicable provisions of ERISA
with respect to all Benefit Arrangements, Plans and Multiemployer Plans other
than for such non-compliance as could not reasonably be expected to have
individually or in the aggregate, a Material Adverse Effect. There has been no
Prohibited Transaction with respect to any Benefit Arrangement or any Plan or,
to the best knowledge of the Borrower, with respect to any Multiemployer Plan or
Multiple Employer Plan, which could result in any material liability of the
Company or any other member of the ERISA Group. The Company and all other
members of the ERISA Group have made when due any and all payments required to
be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. With respect to each Plan and
Multiemployer Plan, the Company and each other member of the ERISA Group (i)
have fulfilled in all material respects their obligations under the minimum
funding standards of ERISA, (ii) have not incurred any liability to the PBGC,
and (iii) have not had asserted against them any penalty for failure to fulfill
the minimum funding requirements of ERISA. All Plans, Benefit Arrangements and
Multiemployer Plans have been administered in accordance with their terms and
applicable Law, other than for such non-compliance as could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(ii) No event requiring notice to the PBGC under
Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur
with respect to any Plan, and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected to
be made to any Plan.
52
(iii) Neither the Company nor any other member of the
ERISA Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Company nor any other member of the ERISA Group has been notified by
any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or
Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or
Multiple Employer Plan is reasonably expected to be reorganized or terminated,
within the meaning of Title IV of ERISA.
5.1.21 Employment Matters. Each of the Loan Parties and each
of their Subsidiaries is in compliance with the Labor Contracts and all
applicable federal, state and local labor and employment Laws including those
related to equal employment opportunity and affirmative action, labor relations,
minimum wage, overtime, personnel records, child labor, medical insurance
continuation, worker adjustment and relocation notices, immigration controls and
worker and unemployment compensation, where the failure to comply could
reasonably be expected to have a Material Adverse Effect. There are no pending,
or to the Loan Parties' knowledge, threatened charges, complaints or proceedings
alleging a violation of any of such Laws by the Loan Parties or any of their
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. There are no outstanding grievances, arbitration awards or appeals
therefrom arising out of the Labor Contracts or current or threatened strikes,
picketing, handbilling or other work stoppages or slowdowns at facilities of any
of the Loan Parties or any of their Subsidiaries which in any case could
reasonably be expected to have a Material Adverse Effect. The Borrower has
delivered to the Agent true and correct copies of each of the Labor Contracts.
5.1.22 Environmental Matters. During the immediately preceding
five years, none of the Loan Parties or any of their Subsidiaries has received
any Environmental Complaint from any Official Body or private Person which is
unresolved as of the Closing Date alleging that such Loan Party or any prior or
subsequent owner of any of the Property is a potentially responsible party under
the Comprehensive Environmental Response, Cleanup and Liability Act, 42 U.S.C.
ss. 9601, et seq., and none of the Loan Parties has any reason to believe that
such an Environmental Complaint might be received. There are no pending or, to
any Loan Party's knowledge, threatened Environmental Complaints relating to any
Loan Party or any Subsidiary of a Loan Party pertaining to, or arising out of,
any Environmental Conditions which could be reasonably expected to have a
Material Adverse Effect. Notwithstanding any term in this Section 5.1.22, any
representation made as to leased Property is made to the Loan Parties'
knowledge.
5.1.23 Senior Debt Status. The Obligations of each Loan Party
under this Agreement, the Guaranty Agreement and each of the other Loan
Documents to which it is a party rank and will rank at least pari passu in
priority of payment with all other Indebtedness of such Loan Party except
Indebtedness of such Loan Party to the extent secured by Permitted Liens. There
is no Lien upon or with respect to any of the
53
properties or income of any Loan Party or any Subsidiary of any Loan Party which
secures indebtedness or other obligations of any Person except for Permitted
Liens.
5.1.24 Year 2000. The Loan Parties and their Subsidiaries have
reviewed the areas within their business and operations which could reasonably
be expected to be adversely affected by, and have developed or are developing a
program to address on a timely basis, the risk that certain computer
applications used by the Loan Parties or their Subsidiaries (or any of their
respective material suppliers, customers or vendors) may be unable to recognize
and perform properly date-sensitive functions involving dates prior to and after
December 31, 1999 (the "Year 2000 Problem"). The Year 2000 Problem could not
reasonably be expected to result in a Material Adverse Effect.
5.2 Continuation of Representations. The Loan Parties make the
representations and warranties in this Section 5 on the date hereof and on the
Closing Date and each date thereafter on which a Loan is made or a Letter of
Credit is issued as provided in and subject to Sections 6.1 and 6.2.
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to make Loans and of the Agent to issue
Letters of Credit hereunder is subject to the performance by each of the Loan
Parties of its Obligations to be performed hereunder at or prior to the making
of any such Loans or issuance of such Letters of Credit and to the satisfaction
of the following further conditions:
6.1 First Loans and Letters of Credit. On the Closing Date:
6.1.1 Officer's Certificate. The representations and
warranties of each of the Loan Parties contained in Section 5.1 and in each of
the other Loan Documents shall be true and accurate on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of such date (except representations and warranties which relate
solely to an earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to therein),
and each of the Loan Parties shall have performed and complied with all
covenants and conditions hereof and thereof, no Event of Default or Potential
Default shall have occurred and be continuing or shall exist; and there shall be
delivered to the Agent for the benefit of each Lender a certificate of each of
the Loan Parties, dated the Closing Date and signed by the Chief Executive
Officer, President or Chief Financial Officer of each of the Loan Parties to
each such effect.
6.1.2 Secretary's Certificate. There shall be delivered to the
Agent for the benefit of each Lender a certificate dated the Closing Date and
signed by the Secretary or an Assistant Secretary of each of the Loan Parties,
certifying as appropriate as to:
(i) all action taken by each Loan Party in connection
with this Agreement and the other Loan Documents;
54
(ii) the names of the officer or officers authorized
to sign this Agreement and the other Loan Documents and the
true signatures of such officer or officers and specifying the
Authorized Officers permitted to act on behalf of each Loan
Party for purposes of this Agreement and the true signatures
of such officers, on which the Agent and each Lender may
conclusively rely; and
(iii) copies of its organizational documents,
including its certificate of incorporation, by-laws,
certificate of limited partnership, partnership agreement,
certificate of formation, and limited liability company
agreement as in effect on the Closing Date certified by the
appropriate state official where such documents are filed in a
state office together with certificates from the appropriate
state officials dated as of recent date as to the continued
existence and good standing of each Loan Party in each state
where organized or qualified to do business, and a bring-down
certificate of good standing for each domestic Loan Party in
its jurisdiction of incorporation by facsimile dated the
Closing Date.
6.1.3 Opinion of Counsel. There shall be delivered to the
Agent for the benefit of each Lender a written opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC,
counsel for the Loan Parties, dated the Closing Date and in form and substance
satisfactory to the Agent and its counsel:
(i) as to the matters set forth in Exhibit 6.1.3; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably
request.
6.1.4 Legal Details. All legal details and proceedings in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be in form and substance satisfactory to the Agent and
counsel for the Agent, and the Agent shall have received all such other
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent and said counsel, as the Agent or said counsel may
reasonably request.
6.1.5 Payment of Fees. A Borrower shall have paid or caused to
be paid to the Agent for itself and for the account of the Lenders to the extent
not previously paid all commitment and other fees accrued through the Closing
Date and the costs and expenses for which the Agent and the Lenders are entitled
to be reimbursed.
6.1.6 Consents. All material consents required to effectuate
the transactions contemplated hereby as set forth on Schedule 5.1.13 shall have
been obtained.
6.1.7 Officer's Certificate Regarding ▇▇▇▇. Since July 31,
1998, no event which could be reasonably expected to have a Material Adverse
Effect shall have
55
occurred; prior to the Closing Date, there shall have been no material change in
the management of any Loan Party and there shall have been delivered to the
Agent for the benefit of each Lender a certificate dated the Closing Date and
signed by the Chief Executive Officer, President or Chief Financial Officer of
each Loan Party to each such effect.
6.1.8 No Violation of Laws. The making of the Loans and the
issuance of the Letters of Credit shall not contravene any Law applicable to any
Loan Party or any of the Lenders.
6.1.9 No Actions or Proceedings. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any court, governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain damages in respect of, this Agreement, the
other Loan Documents or the consummation of the transactions contemplated hereby
or thereby or which, in the Agent's sole discretion, would make it inadvisable
to consummate the transactions contemplated by this Agreement or any of the
other Loan Documents.
6.1.10 Insurance. There shall have been delivered to the Agent
for the benefit of each Lender evidence of the insurance required to be
maintained pursuant to Section 7.1.3.
6.1.11 Accountant's Letter. There shall have been delivered to
the Agent for the benefit of each Lender a copy of a letter to the Company from
the independent certified public accountants of the Company and its Subsidiaries
acknowledging that the Company has advised such accountants that the Agent and
the Lenders are relying on the financial statements of the Company and its
Subsidiaries and such accountants' audit reports thereon.
6.1.12 Officer's Certificate Regarding Maximum Leverage Ratio
and Consolidated Tangible Net Worth. There shall have been delivered to the
Agent for the benefit of each Lender a certificate dated the Closing Date signed
by an Authorized Officer of the Company containing calculations in detail
reasonably satisfactory to the Agent showing (i) the ratio of Total Indebtedness
of the Company and its Subsidiaries to Consolidated EBITDA, (ii) the
Consolidated Tangible Net Worth and (iii) the aggregate EBITDA of the Loan
Parties, in each case, as of July 31, 1999.
6.2 Each Additional Loan or Letter of Credit. At the time of making any
Loans or issuing any Letters of Credit other than Loans made or Letters of
Credit issued on the Closing Date and after giving effect to the proposed
extensions of credit: the representations and warranties of the Loan Parties
contained in Section 5.1 and in the other Loan Documents shall be true on and as
of the date of such additional Loan or Letter of Credit with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which expressly relate solely to an
earlier date or time, which representations and warranties shall be true and
correct on and as of the specific dates or times referred to therein) and
56
the Loan Parties shall have performed and complied with all covenants and
conditions hereof; no Event of Default or Potential Default shall have occurred
and be continuing or shall exist; the making of the Loans or issuance of such
Letter of Credit shall not contravene any Law applicable to any Loan Party or
Subsidiary of any Loan Party or any of the Lenders; and a Borrower shall have
delivered to the Agent a duly executed and completed Loan Request or application
for a Letter of Credit as the case may be.
6.3 Subsequent Effective Date. On any Subsequent Effective Date and
prior to the Lenders making any Loans to any Borrowing Subsidiary:
(a) There shall be delivered to the Agent for the benefit of
each Lender an Election to Participate from such Borrowing Subsidiary
agreeing to be bound by this Agreement as a Borrower (but not as a
Guarantor).
(b) The representations and warranties of each of the Loan
Parties contained in Section 5.1 shall be true and accurate with
respect to such Borrowing Subsidiary on and as of the Subsequent
Effective Date with the same effect as though such representations and
warranties had been made on and as of such date (except representations
and warranties which relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of
the specific dates or times referred to therein); no Event of Default
or Potential Default under this Agreement shall have occurred and be
continuing or shall exist; and there shall be delivered to the Agent
for the benefit of each Lender a certificate of such Borrowing
Subsidiary, dated the Subsequent Effective Date and signed by an
Authorized Officer of such Borrowing Subsidiary, to each such effect.
(c) There shall be delivered to the Agent for the benefit of
each Lender a certificate dated the Subsequent Effective Date and
signed by the Secretary or an Assistant Secretary of such Borrowing
Subsidiary, certifying as appropriate as to:
(i) all corporate action taken by such Borrowing
Subsidiary in connection with this Agreement and the other
Loan Documents (which shall include copies of all Board of
Directors and stockholder resolutions);
(ii) the names of the officer or officers authorized
to sign this Agreement and the other Loan Documents and the
true signatures of such officer or officers and specifying the
Authorized Officers permitted to act on behalf of such
Borrowing Subsidiary for purposes of this Agreement and the
true signatures of such officers, on which the Agent and each
Lender may conclusively rely; and
(iii) copies of its organizational documents,
including its certificate of incorporation and bylaws (or
equivalent thereof) as in effect on the Subsequent Effective
Date certified by the appropriate government official
57
where such documents are filed in a government office together
with certificates from the appropriate government officials as
to the continued existence and good standing of such Borrowing
Subsidiary in the jurisdiction where organized or where its
principal executive office is located.
(d) There shall be delivered to the Agent for the benefit of
each Lender a written opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC, counsel for the
Loan Parties, and a written opinion of counsel in the jurisdiction in
which such Borrowing Subsidiary is organized, dated the Subsequent
Effective Date and in form and substance satisfactory to the Agent and
its counsel:
(i) as to the matters set forth in Exhibit 6.1.3; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably
request.
(e) All legal details and proceedings in connection with the
transactions contemplated by the Agreement and the other Loan Documents
shall be in form and substance satisfactory to the Agent and its
counsel and the Agent shall have received all such other counterpart
originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent and said counsel, as the Agent or said
counsel may reasonably request.
(f) The making of the Loans shall not contravene any Law
applicable to such Borrowing Subsidiary, the Agent or any of the
Lenders.
(g) The Agent shall have received a duly executed and
completed Loan Request for any Loans to be advanced to such Borrowing
Subsidiary on the Subsequent Effective Date.
(h) No withholding taxes shall be due and payable by such
Borrowing Subsidiary in respect of any payments made by such Borrowing
Subsidiary to any Lender.
(i) The Agent shall have received such other documents as any
Lender or its counsel may have reasonably requested.
7. COVENANTS
7.1 Affirmative Covenants. The Loan Parties, jointly and severally,
covenant and agree that until payment in full of the Loans, Reimbursement
Obligations and Letter of Credit Borrowings, and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan Parties'
other Obligations under the Loan Documents and termination of the Commitments,
the Loan Parties shall comply at all times with the following affirmative
covenants:
58
7.1.1 Preservation of Existence, Etc. Each Loan Party shall,
and shall cause each of its Subsidiaries to, (i) carry on and conduct its
business in substantially the same manner and in generally the same fields of
enterprise as is presently conducted by such Loan Party or Subsidiary, and (ii)
maintain its legal existence as a corporation, limited partnership or limited
liability company and its license or qualification and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary, except as otherwise
expressly permitted in Sections 7.2.6 and 7.2.7.
7.1.2 Payment of Liabilities, Including Taxes, Etc. Each Loan
Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge
all liabilities to which it is subject or which are asserted against it,
promptly as and when the same shall become due and payable, including all taxes,
assessments and governmental charges upon it or any of its properties, assets,
income or profits, prior to the date on which penalties attach thereto, except
to the extent that such liabilities, including taxes, assessments or charges,
are being contested in good faith and by appropriate and lawful proceedings
diligently conducted and for which such reserve or other appropriate provisions,
if any, as shall be required by GAAP shall have been made, but only to the
extent that failure to discharge any such liabilities would not result in any
additional liability which would adversely affect to a material extent the
financial condition of any Loan Party or Subsidiary of any Loan Party, provided
that the Loan Parties and their Subsidiaries will pay all such liabilities
forthwith upon the commencement of proceedings to foreclose any Lien which may
have attached as security therefor.
7.1.3 Maintenance of Insurance. Each Loan Party shall, and
shall cause each of its Subsidiaries to, insure its properties and assets
against loss or damage by fire and such other insurable hazards as such assets
are commonly insured (including fire, extended coverage, property damage,
workers' compensation, public liability and business interruption insurance) and
against other risks (including errors and omissions) in such amounts as similar
properties and assets are insured by prudent companies in similar circumstances
carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary.
7.1.4 Maintenance of Properties and Leases. Each Loan Party
shall, and shall cause each of its Subsidiaries to, maintain in good repair,
working order and condition (ordinary wear and tear excepted) in accordance with
the general practice of other businesses of similar character and size, all of
those properties useful or necessary to its business, and from time to time,
such Loan Party will make or cause to be made all appropriate repairs, renewals
or replacements thereof.
7.1.5 Maintenance of Patents, Trademarks, Etc. Each Loan Party
shall, and shall cause each of its Subsidiaries to, maintain in full force and
effect all patents, trademarks, service marks, trade names, copyrights,
licenses, franchises, permits and other authorizations necessary for the
ownership and operation of its properties and business if the failure so to
maintain the same could not reasonably be expected to have a Material Adverse
Effect.
59
7.1.6 Visitation Rights. Each Loan Party shall, and shall
cause each of its Subsidiaries to, permit any of the officers or authorized
employees or representatives of the Agent or any of the Lenders to visit and
inspect any of its properties and to examine and make excerpts from its books
and records and discuss its business affairs, finances and accounts with its
officers, all in such detail during normal business hours and as often as any of
the Lenders may reasonably request, provided that each Lender shall provide the
Borrowers and the Agent with reasonable notice prior to any visit or inspection.
At any time upon reasonable notice provided to the Borrowers, the Agent may
conduct an audit of any Loan Party. If, and only if, an Event of Default has
occurred and is continuing, any Lender may conduct an audit of any Loan Party,
and such Lender shall make a reasonable effort to conduct such audit
contemporaneously with any audit to be performed by the Agent. At the request of
the Agent, but not more frequently than once a year, the Borrowers and their
respective Authorized Officers shall hold a meeting of the Lenders, at which the
Borrowers will present an analysis of the financial performance of the Company
and its Subsidiaries during the previous fiscal year and a discussion of the
expected results of operations for the then current fiscal year.
7.1.7 Keeping of Records and Books of Account. The Company
shall, and shall cause each of its Subsidiaries to, maintain and keep proper
books of record and account which enable the Company and its Subsidiaries to
issue financial statements in accordance with GAAP and as otherwise required by
applicable Laws of any Official Body having jurisdiction over the Company or any
Subsidiary of the Company, and in which full, true and correct entries shall be
made in all material respects of all its dealings and business and financial
affairs.
7.1.8 Plans and Benefit Arrangements. The Company shall, and
shall cause each other member of the ERISA Group to, comply with ERISA, the
Internal Revenue Code and other applicable Laws applicable to Plans and Benefit
Arrangements except where such failure, alone or in conjunction with any other
failure, could not reasonably be expected to result in a Material Adverse
Effect. Without limiting the generality of the foregoing, the Company shall
cause all of its Plans and all Plans maintained by any member of the ERISA Group
to be funded in accordance with the minimum funding requirements of ERISA and
shall make, and cause each member of the ERISA Group to make, in a timely
manner, all contributions due to Plans, Benefit Arrangements and Multiemployer
Plans which become due to Plans, Benefit Arrangements and Multiemployer Plans
from and after the Closing Date.
7.1.9 Compliance with Laws. Each Loan Party shall, and shall
cause each of its Subsidiaries to, comply with all applicable Laws, including
all Environmental Laws, in all respects, provided that it shall not be deemed to
be a violation of this Section 7.1.9 if any failure to comply with any Law would
not result in fines, penalties, remediation costs, other similar liabilities or
injunctive relief which in the aggregate could reasonably be expected to have a
Material Adverse Effect.
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7.1.10 Use of Proceeds. The Loan Parties will use the Letters
of Credit and the proceeds of the Loans only for (i) general corporate purposes
and for working capital, or (ii) to finance Permitted Acquisitions and such uses
as shall not contravene any applicable Law or any provision hereof.
7.1.11 Subsidiary Guaranties. If any Person becomes a
Subsidiary after the Closing Date and such Subsidiary is organized under the
laws of any state or territory of the United States, the Company shall cause
such Subsidiary to agree to execute a Guarantor Joinder in the form attached
hereto as Exhibit 1.1(G)(1) and to deliver such legal opinions and other
documents and instruments as the Agent may request.
7.2 Negative Covenants. The Loan Parties, jointly and severally,
covenant and agree that until payment in full of the Loans, Reimbursement
Obligations and Letter of Credit Borrowings and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan Parties
other Obligations hereunder and termination of the Commitments, the Loan Parties
shall comply with the following negative covenants:
7.2.1 Indebtedness. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, at any time create, incur, assume
or suffer to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) existing Indebtedness as set forth on Schedule
7.2.1 (including any reissuances, extensions or renewals
thereof, provided there is no increase in the amount thereof
or other significant change in the terms thereof unless
otherwise specified on Schedule 7.2.1);
(iii) capitalized leases;
(iv) reimbursement obligations (contingent or
otherwise) under any letter of credit incurred in the ordinary
course of business and consistent with the parties' historical
practices with respect to amounts, terms and conditions, and
in all cases, made in the reasonable business judgment of the
Borrowers.
(v) Indebtedness secured by Purchase Money Security
Interests not exceeding $15,000,000;
(vi) subject to the restrictions in Section 7.2.4,
Indebtedness of (a) a Loan Party to another Loan Party, (b) a
Loan Party to a Subsidiary of a Loan Party, (c) a Subsidiary
of a Loan Party to a Loan Party and (d) a Subsidiary of a Loan
Party to a Subsidiary of another Loan Party, and with respect
to each form of Indebtedness described in this subsection
(vi), all such Indebtedness shall be incurred in the ordinary
course of business
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and consistent with the parties' historical practices with
respect to amounts, terms and conditions, and in all cases,
made in the reasonable business judgment of the Borrowers;
(vii) subordinated Indebtedness of any Borrower, the
terms of subordination and other terms and provisions of which
are acceptable to the Required Lenders in their reasonable
discretion;
(viii)Permitted Guaranty Obligations;
(ix) Indebtedness incurred by a Loan Party in
connection with a sale-leaseback transaction, provided that,
at any time outstanding, the aggregate amount of the fair
market value of the assets subject to all such sale-leaseback
transactions shall not exceed $2,000,000 and the aggregate
amount of such Indebtedness shall not exceed the fair market
value of all assets subject to such sale-leaseback
transactions;
(x) Indebtedness of a Person which becomes a
Subsidiary after the Closing Date, provided that (a) such
Indebtedness existed at the time such Person became a
Subsidiary and was not created in anticipation thereof and (b)
that the amount of such Indebtedness is not increased;
(xi) public or privately placed unsecured
Indebtedness of any Borrower having a maturity date after the
Expiration Date and on terms and conditions no more
restrictive than the terms and conditions set forth in this
Agreement;
(xii) Indebtedness consisting of unrated commercial
paper in an aggregate amount not to exceed $35,000,000; and
(xiii)other Indebtedness of the Company and its
Subsidiaries, as a group, which does not exceed $25,000,000 in
the aggregate at any time outstanding.
7.2.2 Liens. Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, at any time create, incur, assume or suffer
to exist any Lien on any of its property or assets, tangible or intangible, now
owned or hereafter acquired, or agree or become liable to do so, except
Permitted Liens.
7.2.3 Guaranties. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, at any time, directly or
indirectly, become or be liable in respect of any Guaranty, or assume,
guarantee, become surety for, endorse or otherwise agree, become or remain
directly or contingently liable upon or with respect to any obligation or
liability of any other Person (other than any Loan Party or wholly owned
Subsidiary of any Loan Party), except for Permitted Guaranty Obligations.
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7.2.4 Loans and Investments. Each of the Loan Parties shall
not, and shall not permit any of its Subsidiaries to, at any time make or suffer
to remain outstanding any loan or advance to, or purchase, acquire or own any
stock, bonds, notes or securities of, or any partnership interest (whether
general or limited) or limited liability company interest in, or any other
investment or interest in, or make any capital contribution to, any other
Person, or agree, become or remain liable to do any of the foregoing, except
Permitted Investments.
7.2.5 Dividends and Related Distributions. Each of the Loan
Parties shall not, nor shall it permit any of its Subsidiaries to, make or pay,
or agree to become or remain liable to make or pay, any dividend or other
distribution of any nature (whether in cash, property, securities or otherwise)
on account of or in respect of its shares of capital stock or partnership
interests or on account of the purchase, redemption, retirement or acquisition
of its shares of capital stock (or warrants, options or rights therefor)
(collectively, "Distributions"), except:
(i) the Company may make open market repurchases of
shares of its common stock, and it may receive shares of its common stock as
payment of the exercise price of options, or as payment of taxes associated with
the exercise of options or the vesting of restricted shares, which such
delivered shares are deemed to be repurchased by the Company at fair market
value (as defined in the Company's stock option plan) on the date of delivery to
the Company, so long as no Event of Default or Potential Default has occurred
and is continuing or would result therefrom, and, after giving effect to any
such repurchases, the Minimum Liquidity of the Company and its Subsidiaries
taken as a whole shall not be less than $10,000,000 and the Company shall
demonstrate on a pro forma basis that it shall be in compliance with the
covenants contained in Sections 7.2.13, 7.2.14 and 7.2.15, as if such repurchase
had occurred twelve months prior to the date of such repurchase;
(ii) the Company may engage in stock splits
(including reverse stock splits) or pay dividends in stock;
(iii) wholly-owned Subsidiaries may make
Distributions to the Company or another wholly-owned Subsidiary;
(iv) Subsidiaries other than wholly-owned
Subsidiaries may make Distributions so long as (a) the aggregate amount of
Distributions made by any such Subsidiary to any Person other than the Company
or a Subsidiary of the Company in any fiscal year does not exceed 50% of such
Person's pro rata share (based on the percentage of stock or other equity
interests owned by such Person) of such Subsidiary's net income for such fiscal
year as determined in accordance with GAAP and (b) no later than ten (10) days
prior to any such Distribution, the Company shall have given written notice to
the Lenders and the Agent thereof, together with calculations demonstrating that
such Distribution complies with this clause (iv); and
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(v) the Company may pay dividends on its Class A and
B common stock and preferred stock in accordance with the terms therefor set
forth in the Company's articles of incorporation as in effect on the date of
this Agreement, so long as no Event of Default or Potential Default has occurred
and is continuing or would result therefrom; provided, however, that
notwithstanding any term contained herein to the contrary, so long as no Event
of Default described in Section 8.1.1, 8.1.13, 8.1.14 or 8.1.15 has occurred and
is continuing or would result therefrom, the Company shall be permitted to pay,
in strict accordance with the terms of the Company's articles of incorporation
as in effect on the date of this Agreement, a dividend not to exceed 3.5 cents
per share, up to an aggregate amount not to exceed $1,000,000 per dividend, to
the holders of the Company's Class A nonvoting common stock only if nonpayment
of such dividend would cause the holders of such stock to acquire voting rights
described in Article III, Section B, paragraph 3 of such articles of
incorporation.
7.2.6 Mergers, Consolidations, Acquisitions. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
provided that
(1) any Loan Party (other than a Borrower) or any
Subsidiary of any Loan Party may consolidate or merge into another Subsidiary of
the Company which is wholly owned by one or more of the other Loan Parties, and
(2) any Loan Party or any Subsidiary which is not a
Loan Party may acquire, whether by purchase or by merger, (A) all of the
ownership interests of another Person or (B) substantially all of the assets or
capital stock of another Person or of a business or division of another Person
(each a "Permitted Acquisition"), provided that each of the following
requirements is met:
(i) if the Loan Parties are acquiring the
ownership interests in such Person, and such Person
is organized under the laws of any State or territory
of the United States, such Person shall execute a
Guarantor Joinder and join this Agreement as a
Guarantor in accordance with Section 10.18 as of the
date of such Permitted Acquisition;
(ii) the business acquired, or the
business conducted by the Person whose ownership
interests are being acquired, as applicable, shall be
substantially the same as, or shall enhance or
complement one or more line or lines of business
conducted by the Loan Parties and shall comply with
Section 7.2.10;
(iii) no Potential Default or Event of
Default shall exist immediately prior to and after
giving effect to such Permitted Acquisition;
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(iv) the Company shall demonstrate on a
pro forma basis that it shall be in compliance with
the covenants contained in Sections 7.2.13, 7.2.14,
7.2.15 and 7.2.16 after giving effect to such
permitted Acquisition (including in such computation
(A) Consolidated EBITDA for the acquired business for
the immediately preceding four fiscal quarters with
respect to the covenants contained in 7.2.13, (B)
Consolidated EBIT for the acquired business for the
immediately preceding four fiscal quarters with
respect to the covenants contained in Section 7.2.14,
(C) Indebtedness and EBITDA for the acquired business
for the immediately preceding four fiscal quarters
with respect to the covenants contained in Section
7.2.16, and (D) Indebtedness or other liabilities
assumed or incurred in connection with such Permitted
Acquisition) by delivering to the Agent at least
fifteen (15) Business Days prior to such Permitted
Acquisition a certificate in the form of Exhibit
7.2.6 evidencing such compliance, which certificate
shall be subject to the approval of the Agent which
approval shall not be unreasonably withheld;
(v) after giving effect to the Permitted
Acquisition, the Minimum Liquidity of the Company and
its Subsidiaries taken as a whole shall not be less
than $10,000,000;
(vi) in the case of any Permitted
Acquisition with a purchase price greater than or
equal to $25,000,000 or upon the reasonable request
of the Agent for any Permitted Acquisition with a
purchase price less than $25,000,000, the Company
shall deliver to the Agent at least fifteen (15)
Business Days before such Permitted Acquisition
copies of any agreements entered into or drafts of
agreements proposed to be entered into in connection
with such Permitted Acquisition and shall deliver to
the Agent such other information about such Person or
its assets as the Agent may reasonably require;
provided, that the delivery requirement in this
clause (vi) may be waived by the Agent in its sole
discretion; and
(vii) in the case of any Permitted
Acquisition by any Subsidiary which is not a Loan
Party, (A) 65% of the stock of such Subsidiary shall
be pledged as collateral to the Agent for the benefit
of the Lenders pursuant to a pledge agreement in form
and substance satisfactory to the Agent and the
pledging party or (B) the aggregate purchase price
(including assumption of debt) of all Permitted
Acquisitions made by Subsidiaries which are not Loan
Parties and which have not complied with the pledging
requirement in clause (A) above shall not exceed
$40,000,000 in any one fiscal year.
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7.2.7 Liquidations, Dissolutions, Dispositions of Assets or
Subsidiaries. Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to dissolve, liquidate or wind up its affairs, or sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily or
involuntarily, any of its properties or assets, tangible or intangible
(including sale, assignment, discount or other disposition of accounts, contract
rights, chattel paper, equipment or general intangibles with or without recourse
or of capital stock, shares of beneficial interest, partnership interests or
limited liability company interests of a Subsidiary of such Loan Party), except:
(i) transactions involving the sale of inventory in
the ordinary course of business;
(ii) any sale, transfer or lease of assets in the
ordinary course of business which are no longer necessary or
required in the conduct of such Loan Party's or such Loan
Party's Subsidiary's business;
(iii) any sale, transfer or lease of assets by any
wholly owned Subsidiary of such Loan Party to such Loan Party
or to another Loan Party;
(iv) any sale, transfer or lease of assets in the
ordinary course of business which are replaced by substitute
assets; or
(v) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through
(iv) above, provided that (i) at the time of any disposition,
no Event of Default shall exist or shall result from such
disposition, and (ii) the aggregate value of all assets so
sold by Loan Parties and their Subsidiaries shall not exceed
in any fiscal year 15% of the Consolidated Tangible Net Worth
of the Company and its Subsidiaries.
7.2.8 Affiliate Transactions. Each of the Loan Parties shall
not, and shall not permit any of its Subsidiaries to, enter into or carry out
any transaction (including purchasing property or services from or selling
property or services to any Affiliate of any Loan Party or other Person) unless
such transaction is not otherwise prohibited by this Agreement, is entered into
in the ordinary course of business upon fair and reasonable arm's length terms
and conditions which are fully disclosed to the Agent and is in accordance with
all applicable Law.
7.2.9 [Reserved].
7.2.10 Continuation of or Change in Business. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than those businesses substantially as conducted and operated
by such Loan Party or Subsidiary during the fiscal year ended July 31, 1998, and
such Loan Party or Subsidiary shall not permit any material change in such
business other than changes which enhance or complement such business.
66
7.2.11 Plans and Benefit Arrangements. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, engage in a
Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer Plan
which, alone or in conjunction with any other circumstances or set of
circumstances resulting in liability under ERISA or otherwise violate ERISA,
except where such liability or violation could not, alone or in conjunction with
any other failure, reasonably be expected to have a Material Adverse Effect.
7.2.12 Fiscal Year. The Borrower shall not, and shall not
permit any of its Subsidiaries to, change its fiscal year from the twelve-month
period beginning August 1 and ending July 31.
7.2.13 Maximum Leverage Ratio. The Company shall not at any
time permit the ratio of the Total Indebtedness of the Company and its
Subsidiaries calculated as of the end of each fiscal quarter to Consolidated
EBITDA for the immediately preceding four fiscal quarters to be greater than 3.0
to 1.0:
7.2.14 Minimum Interest Coverage Ratio. The Company shall not
permit the ratio of Consolidated EBIT to consolidated interest expense of the
Company and its Subsidiaries, each calculated as of the end of each fiscal
quarter for the immediately preceding four (4) fiscal quarters, to be less than
3.0 to 1.0.
7.2.15 Minimum Net Worth. The Company shall not as of the end
of any fiscal quarter permit Consolidated Net Worth to be less than the sum of
(i) 80% of the Consolidated Net Worth at the Closing Date plus (ii) 45% of the
cumulative net income of the Company and its Subsidiaries plus (iii) 50% of all
equity interests of the Company issued after the Closing Date.
7.2.16 Maximum Loan Party Indebtedness to Loan Party EBITDA
Ratio. The Company shall not at any time permit the ratio of the aggregate Loan
Party Indebtedness of all Loan Parties to the aggregate EBITDA of all Loan
Parties, each as calculated at the end of each fiscal quarter for the
immediately preceding four (4) fiscal quarters, to be greater than 4.0 to 1.0.
7.2.17 Inconsistent Agreements. Each of the Loan Parties shall
not, and shall not permit any of their Subsidiaries to, become or remain subject
to any agreement or contract to which it is a party, nor shall any of them enter
into any indenture, agreement, instrument or other arrangement which, (a)
directly or indirectly prohibits or restrains, or has the effect of prohibiting
or restraining, or could reasonably be expected to impose materially adverse
conditions upon, the incurrence of the Obligations under the Loan Documents, any
provisions of this Agreement (including without limitation Section 7.2.3 hereof)
or the amending of any of the Loan Documents, (b) contains any provision which
would be violated or breached by the making of Loans to any Borrower, the
incurrence of Indebtedness by any Borrower hereunder, or by the performance by
any Borrower or any of the Loan Parties of any of their respective obligations
under any
67
Loan Document, or (c) contains any provision restricting any Loan Party from
granting Liens on its properties to the Agent for the benefit of itself and the
Lenders.
7.3 Reporting Requirements. The Loan Parties, jointly and severally,
covenant and agree that until payment in full of the Loans, Reimbursement
Obligations and Letter of Credit Borrowings and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan Parties
other Obligations hereunder and under the other Loan Documents and termination
of the Commitments, the Loan Parties will furnish or cause to be furnished to
the Agent and each of the Lenders:
7.3.1 Quarterly Financial Statements. As soon as available and
in any event within forty-five (45) calendar days after the end of each of the
first three fiscal quarters in each fiscal year, financial statements of the
Company, consisting of a consolidated balance sheet as of the end of such fiscal
quarter and related consolidated statements of income, stockholders' equity and
cash flows for the fiscal quarter then ended and the fiscal year through that
date, all in reasonable detail and certified (subject to normal year-end audit
adjustments) by the Chief Executive Officer, President or Chief Financial
Officer of the Company as having been prepared in accordance with GAAP,
consistently applied, and setting forth in comparative form the respective
financial statements for the corresponding date and period in the previous
fiscal year. The Loan Parties will be deemed to have complied with the delivery
requirements of this Section 7.3.1 if within forty-five (45) days after the end
of its fiscal quarter, the Company delivers to the Agent and each of the Lenders
a copy of its Form 10-Q as filed with the SEC and the financial statements
contained therein meets the requirements described in this Section.
7.3.2 Annual Financial Statements. As soon as available and in
any event within ninety (90) days after the end of each fiscal year of the
Company, financial statements of the Company consisting of a consolidated
balance sheet as of the end of such fiscal year, and related consolidated
statements of income, stockholders' equity and cash flows for the fiscal year
then ended, all in reasonable detail and setting forth in comparative form the
financial statements as of the end of and for the preceding fiscal year, and
certified by independent certified public accountants of nationally recognized
standing satisfactory to the Agent. The certificate or report of accountants
shall be free of qualifications (other than any consistency qualification that
may result from a change in the method used to prepare the financial statements
as to which such accountants concur) and shall not indicate the occurrence or
existence of any event, condition or contingency which would materially impair
the prospect of payment or performance of any covenant, agreement or duty of any
Loan Party under any of the Loan Documents. The Company will be deemed to have
complied with the delivery requirements of this Section 7.3.2 if within ninety
(90) days after the end of its fiscal year, the Company delivers to the Agent
and each of the Lenders a copy of its Annual Report and Form 10-K as filed with
the SEC and the financial statements and certification of public accountants
contained therein meets the requirements described in this Section.
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7.3.3 Certificate of the Company. Concurrently with the
financial statements of the Company furnished to the Agent and to the Lenders
pursuant to Sections 7.3.1 and 7.3.2, a certificate of the Company signed by the
Chief Executive Officer, President or Chief Financial Officer of the Company, in
the form of Exhibit 7.3.3, to the effect that, except as described pursuant to
Section 7.3.4, (i) the representations and warranties of the Loan Parties
contained in Section 5.1 and in the other Loan Documents are true on and as of
the date of such certificate with the same effect as though such representations
and warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time) and the
Loan Parties have performed and complied with all covenants and conditions
hereof, (ii) no Event of Default or Potential Default exists and is continuing
on the date of such certificate and (iii) containing calculations in sufficient
detail to demonstrate compliance as of the date of such financial statements
with all financial covenants contained in Section 7.2.
7.3.4 Notice of Default. Promptly after any officer of any
Loan Party has learned of the occurrence of an Event of Default or Potential
Default, a certificate signed by the Chief Executive Officer, President or Chief
Financial Officer of the Company setting forth the details of such Event of
Default or Potential Default and the action which such Loan Party proposes to
take with respect thereto.
7.3.5 Notice of Litigation. Promptly after the commencement
thereof, notice of all actions, suits, proceedings or investigations before or
by any Official Body or any other Person against any Loan Party or Subsidiary of
any Loan Party, which involve a claim or series of claims in excess of
$1,000,000 or which if adversely determined could reasonably be expected to have
a Material Adverse Effect.
7.3.6 Sale of Assets. Written notice to the Agent at least
fifteen (15) calendar days prior thereto, with respect to any proposed sale or
transfer of assets pursuant to Section 7.2.7(iv).
7.3.7 Budgets, Forecasts, Other Reports and Information.
Promptly upon their becoming available to the Company:
(i) any reports including management letters
submitted to the Company by independent accountants in
connection with any annual, interim or special audit,
(ii) any reports, notices or proxy statements
generally distributed by the Company to its stockholders on a
date no later than the date supplied to such stockholders,
(iii) regular or periodic reports, including Forms
10-K, 10-Q and 8-K, registration statements and prospectuses,
filed by the Company with the SEC,
69
(iv) such other reports and information, including
but not limited to budgets and projections, as any of the
Lenders may from time to time reasonably request. The Company
shall also notify the Lenders promptly of the enactment or
adoption of any Law of which the Company has knowledge which
could reasonably be expected to have a Material Adverse
Effect, and
(v) written notice regarding any change in the legal
or beneficial ownership of the Company's Class B common
shares.
7.3.8 Notices Regarding Plans and Benefit Arrangements.
7.3.8.1 Certain Events. Promptly upon becoming aware
of the occurrence thereof, notice (including the nature of the event and, when
known, any action taken or threatened by the Internal Revenue Service or the
PBGC with respect thereto) of:
(i) any Reportable Event with respect to the
Company or any other member of the ERISA Group
(regardless of whether the obligation to report said
Reportable Event to the PBGC has been waived),
(ii) any Prohibited Transaction which could
subject the Company or any other member of the ERISA
Group to a civil penalty assessed pursuant to Section
502(i) of ERISA or a tax imposed by Section 4975 of
the Internal Revenue Code in connection with any
Plan, any Benefit Arrangement or any trust created
thereunder,
(iii) any assertion of material withdrawal
liability with respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from
a Multiemployer Plan by the Company or any other
member of the ERISA Group under Title IV of ERISA (or
assertion thereof), where such withdrawal is likely
to result in material withdrawal liability,
(v) any cessation of operations (by the
Company or any other member of the ERISA Group) at a
facility in the circumstances described in Section
4062(e) of ERISA,
(vi) withdrawal by the Company or any other
member of the ERISA Group from a Multiple Employer
Plan,
(vii) a failure by the Company or any other
member of the ERISA Group to make a payment to a Plan
required to avoid imposition of a Lien under Section
302(f) of ERISA,
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(viii) the adoption of an amendment to a
Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA, or
(ix) any change in the actuarial assumptions
or funding methods used for any Plan, where the
effect of such change is to materially increase or
materially reduce the unfunded benefit liability or
obligation to make periodic contributions.
7.3.8.2 Notices of Involuntary Termination and Annual
Reports. Promptly after receipt thereof, copies of (a) all notices received by
the Company or any other member of the ERISA Group of the PBGC's intent to
terminate any Plan administered or maintained by the Company or any member of
the ERISA Group, or to have a trustee appointed to administer any such Plan; and
(b) at the request of the Agent or any Lender each annual report (IRS Form 5500
series) and all accompanying schedules, the most recent actuarial reports, the
most recent financial information concerning the financial status of each Plan
administered or maintained by the Company or any other member of the ERISA
Group, and schedules showing the amounts contributed to each such Plan by or on
behalf of the Company or any other member of the ERISA Group in which any of
their personnel participate or from which such personnel may derive a benefit,
and each Schedule B (Actuarial Information) to the annual report filed by the
Company or any other member of the ERISA Group with the Internal Revenue Service
with respect to each such Plan.
7.3.8.3 Notice of Voluntary Termination. Promptly
upon the filing thereof, copies of any Form 500 or any successor or equivalent
form to Form 500 filed with the PBGC, and copies of any Form 5310, or any
successor or equivalent form to Form 5310 filed with the Internal Revenue
Service, in connection with the termination of any Plan.
8. DEFAULT
8.1 Events of Default. An Event of Default shall mean the occurrence or
existence of any one or more of the following events or conditions (whatever the
reason therefor and whether voluntary, involuntary or effected by operation of
Law):
8.1.1 Payments Under Loan Documents. Any Borrower shall fail
to pay (i) any principal of any Loan (including scheduled installments,
mandatory prepayments or the payment due at maturity), Reimbursement Obligation
or Letter of Credit Borrowing when such amount is due hereunder or (ii) any
interest on any Loan, Reimbursement Obligation or Letter of Credit Borrowing or
any other amount owing hereunder or under the other Loan Documents within three
(3) Business Days after such interest or other amount becomes due in accordance
with the terms hereof or thereof;
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8.1.2 Breach of Representation Warranty. Any representation or
warranty made at any time by any of the Loan Parties herein or in any other Loan
Document, or in any certificate, other instrument or statement furnished
pursuant to the provisions hereof or thereof, shall prove to have been false or
misleading in any material respect as of the time it was made or furnished;
8.1.3 Breach of Negative Covenants or Visitation Rights. Any
of the Loan Parties shall default in the observance or performance of any
covenant contained in Section 7.1.6 or Section 7.2;
8.1.4 Breach of Other Covenants. Any of the Loan Parties shall
default in the observance or performance of any other covenant, condition or
provision hereof or of any other Loan Document and such default shall continue
unremedied for a period of twenty (20) days after any officer of any Loan Party
becomes aware of the occurrence thereof (such grace period to be applicable only
in the event such default can be remedied by corrective action of the Loan
Parties as determined by the Agent in its sole discretion and such grace period
to be extended by the Required Lenders in their sole discretion for so long as
remediation of such default is initiated and pursued diligently by the Loan
Parties).
8.1.5 Defaults in Other Agreements or Indebtedness. A default
or event of default shall occur at any time under the terms of any other
agreement involving borrowed money or the extension of credit or any other
Indebtedness under which any Loan Party or Subsidiary of any Loan Party may be
obligated as a borrower or guarantor in excess of $9,000,000 in the aggregate,
and such breach, default or event of default consists of the failure to pay
(beyond any period of grace permitted with respect thereto, whether waived or
not) any indebtedness when due (whether at stated maturity, by acceleration or
otherwise) or if such breach or default permits or causes the acceleration of
any indebtedness (unless such rights have been waived) or the termination of any
commitment to lend;
8.1.6 Final Judgments or Orders. Any final judgments or orders
for the payment of money (to the extent not covered by insurance) in excess of
$5,000,000 in the aggregate shall be entered against any Loan Party by a court
having jurisdiction in the premises, which judgment is not discharged, vacated,
bonded or stayed pending appeal within a period of thirty (30) days from the
date of entry;
8.1.7 Loan Document Unenforceable. Any of the Loan Documents
shall cease to be legal, valid and binding agreements enforceable against the
party executing the same or such party's successors and assigns (as permitted
under the Loan Documents) in accordance with the respective terms thereof or
shall in any way be terminated (except in accordance with its terms) or become
or be declared ineffective or inoperative or shall in any way be challenged or
contested or cease to give or provide the respective Liens, security interests,
rights, titles, interests, remedies, powers or privileges intended to be created
thereby;
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8.1.8 Uninsured Losses; Proceedings Against Assets. There
shall be commenced against any Loan Party any case, proceeding, or other action
seeking issuance of a warranty of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within thirty (30) days from the
entry thereof or such come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors and the same is not cured
within thirty (30) days thereafter;
8.1.9 Notice of Lien or Assessment. A notice of Lien or
assessment in excess of, individually or in the aggregate, $5,000,000, which is
not a Permitted Lien is filed of record with respect to all or any part of any
of the Loan Parties' assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency, including the PBGC, or any taxes or debts owing at any time
or times hereafter to any one of these becomes payable and the same is not paid
within thirty (30) days after the same becomes payable;
8.1.10 Insolvency. Any Loan Party ceases to be solvent or
admits in writing its inability to pay its debts as they mature;
8.1.11 Events Relating to Plans and Benefit Arrangements. Any
of the following occurs: (i) any Reportable Event, which the Agent determines in
good faith constitutes grounds for the termination of any Plan by the PBGC or
the appointment of a trustee to administer or liquidate any Plan, shall have
occurred and be continuing; (ii) proceedings shall have been instituted or other
action taken to terminate any Plan, or a termination notice shall have been
filed with respect to any Plan; (iii) a trustee shall be appointed to administer
or liquidate any Plan; (iv) the PBGC shall give notice of its intent to
institute proceedings to terminate any Plan or Plans or to appoint a trustee to
administer or liquidate any Plan; (v) any Prohibited Transaction which could
subject the Company or any other member of the ERISA Group to a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Sections 4975
of the Internal Revenue Code in connection with any Plan, any Benefit
Arrangement or any trust created thereunder; and, in the case of the occurrence
of (i), (ii), (iii), (iv) or (v) above, the Agent determines in good faith that
the amount of the Company's liability is likely to exceed 20% of its
Consolidated Tangible Net Worth; (vi) the Company or any member of the ERISA
Group shall fail to make any contributions when due to a Plan or a Multiemployer
Plan; (vii) the Company or any other member of the ERISA Group shall make any
amendment to a Plan with respect to which security is required under Section 307
of ERISA; (viii) the Company or any other member of the ERISA Group shall
withdraw completely or partially from a Multiemployer Plan; (ix) the Company or
any other member of the ERISA Group shall withdraw (or shall be deemed under
Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan; or (x) any
applicable Law is adopted, changed or interpreted by any Official Body with
respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events specified in (vi),
(vii), (viii), (ix) or (x), the Agent determines in good faith that any such
occurrence could be reasonably likely to
73
materially and adversely affect the total enterprise represented by the Company
and the other members of the ERISA Group;
8.1.12 Cessation of Business. Any Loan Party ceases to conduct
its business as contemplated, except as expressly permitted under Section 7.2.6
or 7.2.7, or any Loan Party is enjoined, restrained or in any way prevented by
court order from conducting all or any material part of its business and such
injunction, restraint or other preventive order is not dismissed within thirty
(30) days after the entry thereof;
8.1.13 Change of Control. (i) Any person or group of persons
(within the meaning of Sections 13(d) or 14(a) of the Securities Exchange Act of
1934, as amended) other than ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and their
descendants or any trusts established for them or their descendants, and the ▇.
▇. ▇▇▇▇▇ Foundation, Inc. shall have acquired beneficial ownership of (within
the meaning of Rule 13d-3 promulgated by the SEC under said Act) one third (1/3)
or more of the voting capital stock of the Company; or (ii) a majority of the
Board of Directors of the Company shall consist of individuals who are not
Continuing Directors; "Continuing Director" means, as of any date of
determination, (A) an individual who on the date one year prior to such
determination date was a member of the Company's Board of Directors or (B) any
new Director whose nomination for election by the Company's shareholders was
approved by a vote of at least 75% of the Directors then still in office who
either were Directors on the date one year prior to such determination date or
whose nomination for election was previously so approved;
8.1.14 Involuntary Proceedings. A proceeding shall have been
instituted in a court having jurisdiction in the premises seeking a decree or
order for relief in respect of any Loan Party or Subsidiary of a Loan Party in
an involuntary case under any applicable bankruptcy, insolvency, reorganization
or other similar law now or hereafter in effect, or for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or similar official) of any Loan Party or Subsidiary of a Loan Party for any
substantial part of its property, or for the winding up or liquidation of its
affairs, and such proceeding shall remain undismissed or unstayed and in effect
for a period of thirty (30) consecutive days or such court shall enter a decree
or order granting any of the relief sought in such proceeding; or
8.1.15 Voluntary Proceedings. Any Loan Party or Subsidiary of
a Loan Party shall commence a voluntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case under
any such law, or shall consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or other similar official) of itself or for any substantial part of its
property or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
action in furtherance of any of the foregoing.
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8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings. If an Event of Default specified under Sections
8.1.1 through 8.1.13 shall occur and be continuing, the Lenders and the Agent
shall be under no further obligation to make Loans or issue Letters of Credit,
as the case may be, and the Agent may, and upon the request of the Required
Lenders, shall (i) by written notice to the Borrowers, declare the unpaid
principal amount of the Loans then outstanding and all interest accrued thereon,
any unpaid fees and all other Indebtedness of the Borrowers to the Lenders
hereunder and thereunder to be forthwith due and payable, and the same shall
thereupon become and be immediately due and payable to the Agent for the benefit
of each Lender without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, and (ii) require the Borrowers
to, and the Borrowers shall thereupon, deposit in a non-interest-bearing account
with the Agent, as cash collateral for its Obligations under the Loan Documents,
an amount equal to the maximum amount currently or at any time thereafter
available to be drawn on all outstanding Letters of Credit, and the Borrowers
hereby pledge to the Agent and the Lenders, and grants to the Agent and the
Lenders a security interest in, all such cash as security for such Obligations.
Upon the curing of all existing Events of Default to the satisfaction of the
Required Lenders, the Agent shall return such cash collateral to the Borrowers;
and
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings. If
an Event of Default specified under Section 8.1.14 or Section 8.1.15 shall
occur, the Lenders shall be under no further obligations to make Loans hereunder
and the unpaid principal amount of the Loans then outstanding and all interest
accrued thereon, any unpaid fees and all other Indebtedness of the Borrowers to
the Lenders hereunder and thereunder shall be immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived; and
8.2.3 Setoff. If an Event of Default shall occur and be
continuing, any Lender to whom any Obligation is owed by any Loan Party
hereunder or under any other Loan Document or any participant of such Lender
which has agreed in writing to be bound by the provisions of Section 9.12 and
any branch, Subsidiary or Affiliate of such Lender or participant anywhere in
the world shall have the right, in addition to all other rights and remedies
available to it, without notice to such Loan Party, to set off against and apply
to the then unpaid balance of all the Loans and all other Obligations of the
Borrowers and the other Loan Parties hereunder or under any other Loan Document
any debt owing to, and any other funds held in any manner for the account of,
the Borrower or such other Loan Party by such Lender or participant or by such
branch, Subsidiary or Affiliate, including all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by any Borrower or such
other Loan Party for its own account (but not including funds held in custodian
or trust accounts) with such Lender or participant or such branch, Subsidiary or
Affiliate. Such right shall exist whether or not any Lender or the Agent shall
have made any demand under this Agreement or any
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other Loan Document, whether or not such debt owing to or funds held for the
account of such Borrower or such other Loan Party is or are matured or unmatured
and regardless of the existence or adequacy of any Guaranty or any other
security, right or remedy available to any Lender or the Agent; and
8.2.4 Suits, Actions, Proceedings. If an Event of Default
shall occur and be continuing, and whether or not the Agent shall have
accelerated the maturity of Loans pursuant to any of the foregoing provisions of
this Section 8.2, the Agent or any Lender, if owed any amount with respect to
the Loans, may proceed to protect and enforce its rights by suit in equity,
action at law and/or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement or the
other Loan Documents, including as permitted by applicable Law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of the Agent or such Lender; and
8.2.5 Application of Proceeds. From and after the date on
which the Agent has taken any action pursuant to this Section 8.2 and until all
Obligations of the Loan Parties has been paid in full, any and all proceeds
received by the Agent from the exercise of any remedy by the Agent, shall be
applied as follows:
(i) first, to reimburse the Agent and the Lenders for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the Agent or the Lenders in
connection with collection of any Obligations of any of the Borrowers under any
of the Loan Documents;
(ii) second, to the repayment of all Indebtedness
then due and unpaid of the Loan Parties incurred under this Agreement or any of
the other Loan Documents, whether of principal, interest, fees, expenses or
otherwise, pro rata to the Lenders; and
(iii) the balance, if any, as required by Law.
8.2.6 Other Rights and Remedies. In addition to all of the
rights and remedies contained in this Agreement or in any of the other Loan
Documents, the Agent shall have all of the rights and remedies under applicable
Law, all of which rights and remedies shall be cumulative and non-exclusive, to
the extent permitted by Law. The Agent may, and upon the request of the Required
Lenders shall, exercise all post-default rights granted to the Agent and the
Lenders under the Loan Documents or applicable Law.
9. THE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates, appoints
and authorizes PNC Bank to act as Agent for such Lender under this Agreement and
to execute and deliver or accept on behalf of each of the Lenders the other Loan
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Documents. Each Lender hereby irrevocably authorizes the Agent to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and any other instruments and agreements referred to herein, and to
exercise such powers and to perform such duties hereunder as are specifically
delegated to or required of the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. PNC Bank agrees to act as the Agent
on behalf of the Lenders to the extent provided in this Agreement.
9.2 Delegation of Duties. The Agent may perform any of its duties
hereunder by or through agents or employees (provided such delegation does not
constitute a relinquishment of its duties as Agent) and, subject to Sections 9.5
and 9.6, shall be entitled to engage and pay for the advice or services of any
attorneys, accountants or other experts concerning all matters pertaining to its
duties hereunder and to rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation. The Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and no implied covenants, functions, responsibilities, duties,
obligations, or liabilities shall be read into this Agreement or otherwise
exist. The duties of the Agent shall be mechanical and administrative in nature;
the Agent shall not have by reason of this Agreement a fiduciary or trust
relationship in respect of any Lender; and nothing in this Agreement, expressed
or implied, is intended to or shall be so construed as to impose upon the Agent
any obligations in respect of this Agreement except as expressly set forth
herein. Without limiting the generality of the foregoing, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. Each Lender expressly
acknowledges (i) that the Agent has not made any representations or warranties
to it and that no act by the Agent hereafter taken, including any review of the
affairs of any of Loan Parties, shall be deemed to constitute any representation
or warranty by the Agent to any Lender; (ii) that it has made and will continue
to make, without reliance upon the Agent, its own independent investigation of
the financial condition and affairs and its own appraisal of the
creditworthiness of each of the Loan Parties in connection with this Agreement
and the making and continuance of the Loans hereunder; and (iii) except as
expressly provided herein, that the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the making of any Loan or at any time or times thereafter.
9.4 Actions in Discretion of Agent; Instructions From the Lenders. The
Agent agrees, upon the written request of the Required Lenders, to take or
refrain from taking any action of the type specified as being within the Agent's
rights, powers or discretion herein, provided that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Lenders, the
77
Agent shall have authority, in its sole discretion, to take or not to take any
such action, unless this Agreement specifically requires the consent of the
Required Lenders or all of the Lenders. Any action taken or failure to act
pursuant to such instructions or discretion shall be binding on the Lenders,
subject to Section 9.6. Subject to the provisions of Section 9.6, no Lender
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders (or all of the Lenders if required by
Section 10.1), or in the absence of such instructions, in the absolute
discretion of the Agent.
9.5 Reimbursement and Indemnification of Agent by the Borrower. The
Borrowers, jointly and severally, unconditionally agree to pay or reimburse the
Agent and hold the Agent harmless against (a) liability for the payment of all
reasonable out-of-pocket costs, expenses and disbursements, including fees and
expenses of counsel (including the allocated costs of staff counsel), appraisers
and environmental consultants, incurred by the Agent (i) in connection with the
development, negotiation, preparation, printing, execution, administration,
syndication, interpretation and performance of this Agreement and the other Loan
Documents, (ii) relating to any requested amendments, waivers or consents
pursuant to the provisions hereof, (iii) in connection with the enforcement of
this Agreement or any other Loan Document or collection of amounts due hereunder
or thereunder or the proof and allowability of any claim arising under this
Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and (iv) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or under any other Loan Document or
in connection with any foreclosure, collection or bankruptcy proceedings, and
(b) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent,
in its capacity as such, in any way relating to or arising out of this Agreement
or any other Loan Documents or any action taken or omitted by the Agent
hereunder or thereunder, provided that the Borrowers shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Agent's gross negligence or willful misconduct, or if the Borrowers were not
given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that the Borrowers shall remain liable
to the extent such failure to give notice does not result in a loss to the
Borrowers), or if the same results from a compromise or settlement agreement
entered into without the consent of the Borrowers, which consent shall not be
unreasonably withheld or if the same results from legal proceedings commenced
against or disputes among the Agent or any Lender by any other Lender or its
participants or the Agent, or if the same results from the violation by the
Agent or any Lender of an express provision of this Agreement or any other Loan
Document if so determined by a final judgment of a court of competent
jurisdiction. In addition, the Borrowers agree to reimburse and pay all
reasonable out-of-pocket expenses of the Agent's regular employees and agents
engaged periodically to perform
78
audits of the Loan Parties' books, records and business properties as permitted
under Section 7.1.6.
9.6 Exculpatory Provisions; Limitation of Liability. Neither the Agent
nor any of its directors, officers, employees, agents, attorneys or Affiliates
shall (a) be liable to any Lender for any action taken or omitted to be taken by
it or them hereunder, or in connection herewith including pursuant to any Loan
Document, unless caused by its or their own gross negligence or willful
misconduct, (b) be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or the due execution of
this Agreement or any other Loan Documents or for any recital, representation,
warranty, document, certificate, report or statement herein or made or furnished
under or in connection with this Agreement or any other Loan Documents, or (c)
be under any obligation to any of the Lenders to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions
hereof or thereof on the part of Loan Parties or the financial condition of the
Loan Parties, or the existence or possible existence of any Event of Default or
Potential Default. No claim may be made by any of the Loan Parties, any Lender,
the Agent or any of their respective Subsidiaries against the Loan Parties, the
Agent, any Lender or any of their respective directors, officers, employees,
agents, attorneys or Affiliates, or any of them, for any special, indirect or
consequential damages or, to the fullest extent permitted by Law, for any
punitive damages in respect of any claim or cause of action (whether based on
contract, tort, statutory liability, or any other ground) based on, arising out
of or related to any Loan Document or the transactions contemplated hereby or
any act, omission or event occurring in connection therewith, including the
negotiation, documentation, administration or collection of the Loans, and each
of the Loan Parties, (for itself and on behalf of each of its Subsidiaries), the
Agent and each Lender hereby waive, releases and agree never to ▇▇▇ upon any
claim for any such damages, whether such claim now exists or hereafter arises
and whether or not it is now known or suspected to exist in its favor. Each
Lender agrees that, except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder or given to the
Agent for the account of or with copies for the Lenders, the Agent and each of
its directors, officers, employees, agents, attorneys or Affiliates shall not
have any duty or responsibility to provide any Lender with an credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its directors, officers, employees,
agents, attorneys or Affiliates.
9.7 Reimbursement and Indemnification of Agent by Lenders. Each Lender
agrees to reimburse and indemnify the Agent (to the extent not reimbursed by the
Borrowers and without limiting the Obligation of the Borrowers to do so) in
proportion to its Ratable Share from and against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements, including attorneys' fees and disbursements (including the
allocated costs of staff counsel), and costs of appraisers and environmental
consultants, of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent, in its capacity as such, in any
79
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, provided that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (a) if the same results from the Agent's gross negligence or
willful misconduct, or (b) if such Lender was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that such Lender shall remain liable to the extent such failure to give
notice does not result in a loss to the Lender), or (c) if the same results from
a compromise and settlement agreement entered into without the consent of such
Lender, which shall not be unreasonably withheld. In addition, each Lender
agrees promptly upon demand to reimburse the Agent (to the extent not reimbursed
by the Borrowers and without limiting the Obligation of the Loan Parties to do
so) in proportion to its Ratable Share for all amounts due and payable by the
Loan Parties to the Agent in connection with the Agent's periodic audit of the
Loan Parties' books, records and business properties.
9.8 Reliance by Agent. The Agent shall be entitled to rely upon any
writing, telegram, telex or teletype message, resolution, notice, consent,
certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Agent. The Agent shall be fully justified in failing or refusing to take any
action hereunder unless it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
9.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Potential Default or Event of Default unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement, describing such Potential Default or Event of Default and
stating that such notice is a "notice of default."
9.10 Notices. The Agent shall promptly send to each Lender a copy of
all notices received from the Borrower pursuant to the provisions of this
Agreement or the other Loan Documents promptly upon receipt thereof. The Agent
shall promptly notify the Borrowers and the other Lenders of each change in the
Base Rate and the effective date thereof.
9.11 Lenders in Their Individual Capacities. With respect to its
Revolving Credit Commitment and the Revolving Credit Loans made by it and any
other rights and powers given to it as a Lender hereunder or under any of the
other Loan Documents, the Agent shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not the Agent,
and the term "Lenders" shall, unless the context otherwise indicates, include
the Agent in its individual capacity. PNC Bank and its Affiliates and each of
the Lenders and their respective Affiliates may, without liability to account,
except as prohibited herein, make loans to, accept deposits
80
from, discount drafts for, act as trustee under indentures of, and generally
engage in any kind of banking or trust business with, the Loan Parties and their
Affiliates, in the case of the Agent, as though it were not acting as Agent
hereunder and in the case of each Lender, as though such Lender were not a
Lender hereunder. The Lenders acknowledge that, pursuant to such activities, the
Agent or its Affiliates may (i) receive information regarding the Loan Parties
(including information that may be subject to confidentiality obligations in
favor of the Loan Parties) and acknowledge that the Agent shall be under no
obligation to provide such information to them, and (ii) accept fees and other
consideration from the Loan Parties for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
9.12 Equalization of Lenders. The Lenders and the holders of any
participations in any Commitments or Loans or other rights or obligations of a
Lender hereunder agree among themselves that, with respect to all amounts
received by any Lender or any such holder for application on any Obligation
hereunder or under any such participation, whether received by voluntary
payment, by realization upon security, by the exercise of the right of setoff or
banker's lien, by counterclaim or by any other non-pro rata source, equitable
adjustment will be made in the manner stated in the following sentence so that,
in effect, all such excess amounts will be shared ratably among the Lenders and
such holders in proportion to their interests in payments on the Loans, except
as otherwise provided in Section 3.4.3, 4.4.2 or 4.6. The Lenders or any such
holder receiving any such amount shall purchase for cash from each of the other
Lenders an interest in such Lender's Loans in such amount as shall result in a
ratable participation by the Lenders and each such holder in the aggregate
unpaid amount of the Loans, provided that if all or any portion of such excess
amount is thereafter recovered from the Lender or the holder making such
purchase, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, together with interest or other amounts, if any,
required by law (including court order) to be paid by the Lender or the holder
making such purchase.
9.13 Successor Agent. The Agent (i) may resign as Agent or (ii) shall
resign if such resignation is requested by the Required Lenders (if the Agent is
a Lender, the Agent's Loans and its Commitment shall be considered in
determining whether the Required Lenders have requested such resignation) or
required by Section 4.4.2, in either case of (i) or (ii) by giving not less than
thirty (30) days' prior written notice to the Borrowers. If the Agent shall
resign under this Agreement, then either (a) the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, subject to the consent
of the Borrowers, such consent not to be unreasonably withheld, or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following the Agent's notice to the Lenders of its resignation, then
the Agent shall appoint, with the consent of the Borrowers, such consent not to
be unreasonably withheld, a successor agent who shall serve as Agent until such
time as the Required Lenders appoint and the Borrowers consent to the
appointment of a successor agent. Upon its appointment pursuant to either clause
(a) or (b) above, such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term "Agent" shall mean such successor agent,
effective upon its appointment, and the former Agent's
81
rights, powers and duties as Agent shall be terminated without any other or
further act or deed on the part of such former Agent or any of the parties to
this Agreement. After the resignation of any Agent hereunder, the provisions of
this Section 9 shall inure to the benefit of such former Agent and such former
Agent shall not by reason of such resignation be deemed to be released from
liability for any actions taken or not taken by it while it was an Agent under
this Agreement.
9.14 Agent's Fee. A Borrower shall pay to the Agent its customary
nonrefundable fee (the "Optional Currency Loan Processing Fee") in connection
with processing Revolving Credit Loans denominated in any Optional Currency, and
a nonrefundable fee (the "Agent's Fee") for Agent's services hereunder under the
terms of a letter (the "Agent's Letter") between the Company and Agent, as
amended from time to time.
9.15 Availability of Funds. The Agent may assume that each Lender has
made or will make the proceeds of a Loan available to the Agent in the
applicable currency unless the Agent shall have been notified by such Lender on
or before the later of (1) the close of Business on the Business Day preceding
the Borrowing Date with respect to such Loan or two (2) hours before the time on
which the Agent actually funds the proceeds of such Loan to a Borrower (whether
using its own funds pursuant to this Section 9.15 or using proceeds deposited
with the Agent by the Lenders and whether such funding occurs before or after
the time on which Lenders are required to deposit the proceeds of such Loan with
the Agent). The Agent may, in reliance upon such assumption (but shall not be
required to), make available to such Borrower a corresponding amount in the
applicable currency. If such corresponding amount is not in fact made available
to the Agent by such Lender in the applicable currency, the Agent shall be
entitled to recover such amount on demand from such Lender (or, if such Lender
fails to pay such amount forthwith upon such demand from such Borrower) together
with interest thereon, in respect of each day during the period commencing on
the date such amount was made available to such Borrower and ending on the date
the Agent recovers such amount, at a rate per annum equal to (i) the Federal
Funds Effective Rate, in the case of a Dollar Loan, or the Overnight Rate, in
the case of an Optional Currency Loan, during the first three (3) days after
such interest shall begin to accrue and (ii) the applicable interest rate in
respect of such Loan after the end of such three-day period.
9.16 Calculations. In the absence of gross negligence or willful
misconduct, the Agent shall not be liable for any error in computing the amount
payable to any Lender whether in respect of the Loans, fees or any other amounts
due to the Lenders under this Agreement. In the event an error in computing any
amount payable to any Lender is made, the Agent, the Borrowers and each affected
Lender shall, forthwith upon discovery of such error, make such adjustments as
shall be required to correct such error, and any compensation therefor will be
calculated at the Federal Funds Effective Rate or the Overnight Rate if such
computation relates to a Loan made in an Optional Currency.
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9.17 Beneficiaries. Except as expressly provided in Sections 9.5 and
9.13 of this Agreement, the provisions of this Section 9 are solely for the
benefit of the Agent and the Lenders, and the Loan Parties shall not have any
rights to rely on or enforce any of the provisions hereof. In performing its
functions and duties under this Agreement, the Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for any of the Loan
Parties.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers. With the written consent of
the Required Lenders, the Agent, acting on behalf of all the Lenders, and the
Borrowers, on behalf of the Loan Parties, may from time to time enter into
written agreements amending or changing any provision of this Agreement or any
other Loan Document or the rights of the Lenders or the Loan Parties hereunder
or thereunder, or may grant written waivers or consents to a departure from the
due performance of the Obligations of the Loan Parties hereunder or thereunder.
Any such agreement, waiver or consent made with such written consent shall be
effective to bind all the Lenders and the Loan Parties; provided, that, without
the written consent of all the Lenders, no such agreement, waiver or consent may
be made which will:
10.1.1 Increase of Commitment; Extension or Expiration Date.
Except as permitted pursuant to Section 2.4.2, increase the amount of the
Revolving Credit Commitment of any Lender hereunder or extend the Expiration
Date;
10.1.2 Extension of Payment; Reduction of Principal, Interest
or Fees; Modification of Terms of Payment. Whether or not any Loans are
outstanding, extend the time for payment of principal or interest of any Loan
(excluding the due date of any mandatory prepayment of a Loan or any mandatory
Commitment reduction in connection with such a mandatory prepayment hereunder
except for mandatory reductions of the Commitments on the Expiration Date), the
Commitment Fee or any other fee payable to any Lender, or reduce the principal
amount of or the rate of interest borne by any Loan or reduce the Commitment Fee
or any other fee payable to any Lender, or otherwise affect the terms of payment
of the principal of or interest of any Loan, the Commitment Fee or any other fee
payable to any Lender;
10.1.3 Miscellaneous. Amend Section 4.2, 4.6 or 9.12 or this
Section 10.1, alter any provision regarding the pro rata treatment of the
Lenders, change the definition of Required Lenders, or change any requirement
providing for the Lenders or the Required Lenders to authorize the taking of any
action hereunder;
10.1.4 Release of Borrower or Guarantor. Release any Borrower
or any Guarantor from its obligations under this Agreement or any other Loan
Document;
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provided, further, that no agreement, waiver or consent which would modify the
interests, rights or obligations of the Agent in its capacity as Agent or as the
issuer of Letters of Credit shall be effective without the written consent of
the Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required. No
course of dealing and no delay or failure of the Agent or any Lender in
exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy or
privilege preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the Agent and the Lenders under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Lender of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
10.3 Reimbursement and Indemnification of Lenders by the Borrower;
Taxes. The Borrowers agree unconditionally upon demand to pay or reimburse to
each Lender (other than the Agent, as to which the Borrowers' Obligations are
set forth in Section 9.5) and to save such Lender harmless against (i) liability
for the payment of all reasonable out-of-pocket costs, expenses and
disbursements (including reasonable fees and expenses of counsel (including
allocated costs of staff counsel) for each Lender except with respect to (a) and
(b) below), incurred by such Lender (a) in connection with the administration
and interpretation of this Agreement, and other instruments and documents to be
delivered hereunder, (b) relating to any amendments, waivers or consents
pursuant to the provisions hereof, (c) in connection with the enforcement of
this Agreement or any other Loan Document, or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and (d) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or under any other Loan Document or
in connection with any foreclosure, collection or bankruptcy proceedings, or
(ii) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Lender,
in its capacity as such, in any way relating to or arising out of this Agreement
or any other Loan Documents or any action taken or omitted by such Lender
hereunder or thereunder, provided that the Borrowers shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (A) if the same results from
such Lender's gross negligence or willful misconduct, or (B) if the Borrowers
were not given notice of the subject claim and the opportunity to participate in
the defense thereof, at its expense (except that the Borrowers shall remain
liable to the extent such failure to give notice does not result in a loss to
the Borrowers), or (C) if the same results from a compromise
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or settlement agreement entered into without the consent of the Borrowers, which
shall not be unreasonably withheld or (D) if the same results from legal
proceedings commenced against or disputes among the Agent or any Lender by any
other Lender or its participants or the Agent or (E) if the same results from
the violation by the Agent or any Lender of an express provision of this
Agreement or any other Loan Document if so determined by a final judgment of a
court of competent jurisdiction. The Lenders will attempt to minimize the fees
and expenses of legal counsel for the Lenders which are subject to reimbursement
by the Borrowers hereunder by considering the usage of one law firm to represent
the Lenders and the Agent if appropriate under the circumstances. The Borrowers
agree unconditionally to pay all stamp, document, transfer, recording or filing
taxes or fees and similar impositions now or hereafter determined by the Agent
or any Lender to be payable in connection with this Agreement or any other Loan
Document, and the Borrowers agree unconditionally to save the Agent and the
Lenders harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.
10.4 Holidays. Whenever payment of a Loan to be made or taken hereunder
shall be due on a day which is not a Business Day such payment shall be due on
the next Business Day and such extension of time shall be included in computing
interest and fees, except that the Loans shall be due on the Business Day
preceding the Expiration Date if the Expiration Date is not a Business Day.
Whenever any payment or action to be made or taken hereunder (other than payment
of the Loans) shall be stated to be due on a day which is not a Business Day,
such payment or action shall be made or taken on the next following Business Day
(except as provided in Section 3.2 with respect to Interest Periods under the
Euro-Rate Option), and such extension of time shall not be included in computing
interest or fees, if any, in connection with such payment or action.
10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding. Each Lender shall have the right from
time to time, without notice to the Borrowers, to deem any branch, Subsidiary or
Affiliate (which for the purposes of this Section 10.5 shall mean any
corporation or association which is directly or indirectly controlled by or is
under direct or indirect common control with any corporation or association
which directly or indirectly controls such Lender) of such Lender to have made,
maintained or funded any Loan to which the Euro-Rate Option applies at any time,
provided that immediately following (on the assumption that a payment were then
due from the Borrower to such other office), and as a result of such change, the
Borrowers would not be under any greater financial obligation pursuant to
Section 4.6 than it would have been in the absence of such change. Notional
funding offices may be selected by each Lender without regard to such Lender's
actual methods of making, maintaining or funding the Loans or any sources of
funding actually used by or available to such Lender.
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10.5.2 Actual Funding. Each Lender shall have the right from
time to time to make or maintain any Loan by arranging for a branch, Subsidiary
or Affiliate of such Lender to make or maintain such Loan subject to the last
sentence of this Section 10.5.2. If any Lender causes a branch, Subsidiary or
Affiliate to make or maintain any part of the Loans hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Loans to the same extent as if such
Loans were made or maintained by such Lender, but in no event shall any Lender's
use of such a branch, Subsidiary or Affiliate to make or maintain any part of
the Loans hereunder cause such Lender or such branch, Subsidiary or Affiliate to
incur any cost or expenses payable by the Borrowers hereunder or require the
Borrower to pay any other compensation to any Lender (including any expenses
incurred or payable pursuant to Section 4.6) which would otherwise not be
incurred.
10.6 Notices; Lending Offices. All notices, requests, demands,
directions and other communications (as used in this Section 10.6, collectively
referred to as "notices") given to or made upon any party hereto under the
provisions of this Agreement shall be by telephone or in writing (including
telex or facsimile communication) unless otherwise expressly permitted hereunder
and shall be delivered or sent by telex or facsimile to the respective parties
at the addresses and numbers set forth under their respective names on Schedule
1.1(B) hereof or in accordance with any subsequent unrevoked written direction
from any party to the others. All notices shall, except as otherwise expressly
herein provided, be effective (a) in the case of telex or facsimile, when
received, (b) in the case of hand-delivered notice, when hand-delivered, (c) in
the case of telephone, when telephoned, provided, however, that in order to be
effective, telephonic notices must be confirmed in writing no later than the
next day by letter, facsimile or telex, (d) if given by mail, four (4) days
after such communication is deposited in the mail with first-class postage
prepaid, return receipt requested, and (e) if given by any other means
(including by air courier), when delivered; provided, that notices to the Agent
shall not be effective until received. Any Lender giving any notice to the
Borrowers shall simultaneously send a copy thereof to the Agent, and the Agent
shall promptly notify the other Lenders of the receipt by it of any such notice.
Schedule 1.1(B) lists the Lending Offices of each Lender. Each Lender may change
its Lending Office by written notice to the other parties hereto.
10.7 Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
10.8 Governing Law. Each Letter of Credit and Section 2.13 shall be
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as the same
may be revised or amended from time to time, and to the extent not inconsistent
therewith, the internal
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laws of the State of Illinois without regard to its conflict of laws principles,
and the balance of this Agreement shall be deemed to be a contract under the
Laws of the State of Illinois for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois without regard to its conflict of laws principles.
10.9 Prior Understanding. This Agreement and the other Loan Documents
supersede all prior understandings and agreements, whether written or oral,
between the parties hereto and thereto relating to the transactions provided for
herein and therein, including any prior confidentiality agreements and
commitments.
10.10 Duration; Survival. All representations and warranties of the
Loan Parties contained herein or made in connection herewith shall survive the
making of Loans and issuance of Letters of Credit and shall not be waived by the
execution and delivery of this Agreement, any investigation by the Agent or the
Lenders, the making of Loans, issuance of Letters of Credit, or payment in full
of the Loans. All covenants and agreements of the Loan Parties contained in
Sections 7.1, 7.2 and 7.3 herein shall continue in full force and effect from
and after the date hereof so long as any Borrower may borrow or request Letters
of Credit hereunder and until termination of the Commitments and payment in full
of the Loans and expiration or termination of all Letters of Credit. All
covenants and agreements of the Borrowers contained herein relating to the
payment of principal, interest, premiums, additional compensation or expenses
and indemnification, including those set forth in Section 4 and Sections 9.5,
9.7 and 10.3, shall survive payment in full of the Loans, expiration or
termination of the Letters of Credit and termination of the Commitments.
10.11 Successors and Assigns.
(i) This Agreement shall be binding upon and shall inure to
the benefit of the Lenders, the Agent, the Loan Parties and their respective
successors and assigns, except that the none of the Loan Parties may assign or
transfer any of their rights and Obligations hereunder or any interest herein.
Each Lender may, at its own cost, make assignments of or sell participations in
all or any part of its Commitments and the Loans made by it to one or more
Lenders or other entities, subject to the consent of the Borrower and the Agent
with respect to any assignee, such consent not to be unreasonably withheld,
provided that (1) no consent of the Borrowers shall be required (A) if an Event
of Default exists and is continuing, or (B) in the case of an assignment by a
Lender to an Affiliate of such Lender, and (2) any assignment by a Lender to a
Person other than an Affiliate of such Lender may not be made in amounts less
than the lesser of $5,000,000 or the amount of the assigning Lender's
Commitment. In the case of an assignment, upon receipt by the Agent of the
Assignment and Assumption Agreement, the assignee shall have, to the extent of
such assignment (unless otherwise provided therein), the same rights, benefits
and obligations as it would have if it had been a signatory Lender hereunder,
the Commitments shall be adjusted accordingly, and upon surrender of any
promissory note subject to such assignment, the Borrowers shall execute and
deliver a new promissory
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note to the assignee, if such assignee requests such a promissory note in an
amount equal to the amount of the Revolving Credit Commitment assumed by it and
a new promissory note to the assigning Lender, if the assigning Lender requests
such a promissory note, in an amount equal to the Revolving Credit Commitment
retained by it hereunder. Any Lender which assigns any or all of its Commitment
or Loans to a Person other than an Affiliate of such Lender shall pay to the
Agent a service fee in the amount of $3,500 for each assignment. In the case of
a participation, the participant shall only have the rights specified in Section
8.2.3, and the participant's rights against such Lender in respect of such
participation are to be those set forth in the agreement executed by such Lender
in favor of the participant relating thereto and not to include any voting
rights except with respect to changes of the type referenced in Sections 10.1.1
or 10.1.2. All of such Lender's obligations under this Agreement or any other
Loan Document shall remain unchanged, and all amounts payable by any Loan Party
hereunder or thereunder shall be determined as if such Lender had not sold such
participation.
(ii) Any assignee or participant which is not incorporated
under the Laws of the United States of America or a state thereof shall deliver
to the Borrower and the Agent the form of certificate described in Section 10.17
relating to federal income tax withholding. Each Lender may furnish any publicly
available information concerning any Loan Party or its Subsidiaries and any
other information concerning any Loan Party or its Subsidiaries in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees or participants), provided that such assignees
and participants agree to be bound by the provisions of Section 10.12.
(iii) Notwithstanding any other provision in this Agreement,
any Lender may at any time pledge or grant a security interest in all or any
portion of its rights under this Agreement, its promissory note (if any) and the
other Loan Documents to any Federal Reserve Bank in accordance with Regulation A
of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14 without notice to
or consent of the Borrower or the Agent. No such pledge or grant of a security
interest shall release the transferor Lender of its obligations hereunder or
under any other Loan Document.
10.12 Confidentiality.
10.12.1 General. The Agent and the Lenders each agree to keep
confidential all information obtained from any Loan Party or its Subsidiaries
which is nonpublic and confidential or proprietary in nature (including any
information the Borrower specifically designates as confidential), except as
provided below, and to use such information only in connection with their
respective capacities under this Agreement and for the purposes contemplated
hereby. The Agent and the Lenders shall be permitted to disclose such
information (i) to their outside legal counsel, accountants and other
professional advisors who need to know such information in connection with the
administration and enforcement of this Agreement, subject to agreement of such
Persons to maintain the confidentiality, (ii) to assignees and participants as
contemplated by Section 10.11, (iii) to the extent requested by any bank
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regulatory authority or, with notice to the Borrower, as otherwise required by
applicable Law or by any subpoena or similar legal process, or in connection
with any investigation or proceeding arising out of the transactions
contemplated by this Agreement, (iv) if it becomes publicly available other than
as a result of a breach of this Agreement or becomes available from a source not
known to be subject to confidentiality restrictions, or (v) if the Borrower
shall have consented to such disclosure.
10.12.2 Sharing Information With Affiliates of the Lenders.
Each Loan Party acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to the
Borrowers, or one or more of their Affiliates (in connection with this Agreement
or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such
Lender and the Borrowers hereby authorizes each Lender to share any information
delivered to such Lender by such Loan Party and its Subsidiaries pursuant to
this Agreement, or in connection with the decision of such Lender to enter into
this Agreement, to any such Subsidiary or Affiliate of such Lender, it being
understood that any such Subsidiary or affiliate of any Lender receiving such
information shall be bound by the provisions of Section 10.12.1 as if it were a
Lender hereunder. Such Authorization shall survive the repayment of the Loans
and other Obligations and the termination of the Commitments.
10.13 Counterparts. This Agreement may be executed by different parties
hereto on any number of separate counterparts, each of which, when so executed
and delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.
10.14 Agent's or Lender's Consent. Whenever the Agent's or any Lender's
consent is required to be obtained under this Agreement or any of the other Loan
Documents as a condition to any action, inaction, condition or event, the Agent
and each Lender shall be authorized to give or withhold such consent in its sole
and absolute discretion and to condition its consent upon the giving of
additional collateral, the payment of money or any other matter.
10.15 Exceptions. The representations, warranties and covenants
contained herein shall be independent of each other, and no exception to any
representation, warranty or covenant shall be deemed to be an exception to any
other representation, warranty or covenant contained herein unless expressly
provided, nor shall any such exceptions be deemed to permit any action or
omission that would be in contravention of applicable Law.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL. EACH LOAN PARTY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE CIRCUIT COURT OF
▇▇▇▇ COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED
MAIL DIRECTED TO SUCH LOAN PARTY AT THE ADDRESSES
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PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF. EACH LOAN PARTY WAIVES ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN
AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE.
EACH LOAN PARTY, THE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE FULL EXTENT PERMITTED BY
LAW.
10.17 Tax Withholding Clause. Each Lender or assignee or participant of
a Lender that is not incorporated under the Laws of the United States of America
or a state thereof agrees that it will deliver to each of the Borrower and the
Agent two (2) duly completed copies of the following: (i) Internal Revenue
Service Form W-9, 4224 or 1001, or other applicable form prescribed by the
Internal Revenue Service, certifying that such Lender, assignee or participant
is entitled to receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United States federal income
taxes, or is subject to such tax at a reduced rate under an applicable tax
treaty, or (ii) Internal Revenue Service Form W-8 or other applicable form or a
certificate of such Lender, assignee or participant indicating that no such
exemption or reduced rate is allowable with respect to such payments. Each
Lender, assignee or participant required to deliver to the Borrowers and the
Agent a form or certificate pursuant to the preceding sentence shall deliver
such form or certificate as follows: (A) each Lender which is a party hereto on
the Closing Date shall deliver such form or certificate at least five (5)
Business Days prior to the first date on which any interest or fees are payable
by the Borrowers hereunder for the account of such Lender; (B) each assignee or
participant shall deliver such form or certificate at least five (5) Business
Days before the effective date of such assignment or participation (unless the
Agent in its sole discretion shall permit such assignee or participant to
deliver such form or certificate less than five (5) Business Days before such
date in which case it shall be due on the date specified by the Agent). Each
Lender, assignee or participant which so delivers a Form W-8, W-9, 4224 or 1001
further undertakes to deliver to each of the Borrowers and the Agent two (2)
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrowers or the Agent, either certifying that such Lender,
assignee or participant is entitled to receive payments under this Agreement and
the other Loan Documents without deduction or withholding of any United States
federal income taxes or is subject to such tax at a reduced rate under an
applicable tax treaty or stating that no such exemption or reduced rate is
allowable. The Agent shall be entitled to withhold United States federal income
taxes at the full withholding rate unless the Lender, assignee or participant
establishes an exemption or that it is subject to a reduced rate as established
pursuant to the above provisions.
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10.18 Joinder of Guarantors. Any Subsidiary of the Company which is
required to join this Agreement as a Guarantor pursuant to Section 7.1.11 or
Section 7.2.6 shall execute and deliver to the Agent (i) a Guarantor Joinder in
substantially the form attached hereto as Exhibit 1.1(G)(1) pursuant to which it
shall join as a Guarantor each of the documents to which the Guarantors are
parties; and (ii) documents in the forms described in Section 7.1.11 modified as
appropriate to relate to such Subsidiary.
10.19 Concerning Joint and Several Liability of the Borrowers. (a) Each
of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Lenders under
this Agreement, for the mutual benefit, directly and indirectly, of each of the
Borrowers and in consideration of the undertakings of each of the Borrowers to
accept joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Borrowers with respect to
the payment and performance of all of the obligations of all Borrowers under
this Agreement or any other Loan Document, it being the intention of the parties
hereto that all such obligations shall be the joint and several obligations of
each of the Borrowers without preferences or distinction between them.
(c) If and to the extent that any Borrower shall fail to make
any payment with respect to any of the obligations of any Borrower under this
Agreement or any other Loan Document as and when due or to perform any of such
obligations in accordance with the terms thereof, then in each such event, the
other Borrowers will make such payment with respect to, or perform, such
obligations.
(d) The obligations of each Borrower under the provisions of
this Section 10.19 constitute full recourse obligations of such Borrower,
enforceable against it to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or
any other Loan Document or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein or required
by applicable law, each Borrower hereby waives notice of acceptance of its joint
and several liability, notice of any other Borrower's request for any Loan under
this Agreement, notice of any Loan made under this Agreement, notice of
occurrence of any Event of Default or Potential Default of any demand for any
payment under this Agreement or any other Loan Document, notice of any action at
any time taken or omitted by any Lender or the Agent under or in respect of any
of the obligations of the Borrowers under this Agreement or any other Loan
Document, any requirement of diligence and, generally, all demands, notices and
other formalities of every kind in connection with this Agreement or any other
Loan Document. Each Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the obligations
of the Borrowers, under this Agreement or any other
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Loan Document, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by any Lender at any time or times in
respect of any default by any Borrower in the performance or satisfaction of any
term, covenant, condition or provision of this Agreement or any other Loan
Document, any and all other indulgences whatsoever by any Lender in respect of
any of the obligations of the Borrowers under this Agreement or any other Loan
Document, and the taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of the obligations of the
Borrower under this Agreement or the addition, substitution or release in whole
or in part, of any Borrower. Without limiting the generality of the foregoing,
each Borrower assents to any other action or delay in acting or failure to act
on the part of any Lender including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy which might, but for the
provisions of this Section 10.19, afford grounds for terminating, discharging or
relieving such Borrower, in whole or in part, from any of its obligations under
this Section 10.19, it being the intention of each Borrower that, so long as any
of the obligations of the Borrowers under this Agreement remain unsatisfied, the
obligations of such Borrower under this Section 10.19 shall not be discharged
except by performance and then only to the extent of such performance. The
obligations of each Borrower under this Section 10.19 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to any Borrower
or any Lender. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any Borrower or any Lender.
(f) The provisions of this Section 10.19 are made for the
benefit of the Lenders and their respective successors and assigns, and may be
enforced by any such Person from time to time against any of the Borrowers as
often as occasion therefor may arise and without requirement on the part of any
Lender first to marshal any of its claims or to exercise any of its rights
against any other Borrower or to exhaust any remedies available to it against
any other Borrower or to resort to any other source or means of obtaining
payment of any of the obligations of the Borrowers under this Agreement or the
other Loan Documents or to elect any other remedy. The provisions of this
Section 10.19 shall remain in effect until all the obligations of the Borrowers
under this Agreement or the other Loan Documents shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the obligations of the Borrowers under this Agreement
or the other Loan Documents is rescinded or must otherwise be restored or
returned by the Lender upon the insolvency, bankruptcy or reorganization of any
of the Borrowers, or otherwise, the provisions of this Section 10.19 will
forthwith be reinstated in effect, as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained
herein or in any other of the Loan Documents, to the extent the joint
obligations of any Borrower shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent
92
conveyances or transfers) then the obligations of each Borrower hereunder shall
be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the federal
Bankruptcy Code).
(h) The Borrowers hereby agree, as among themselves, that if
any Borrower shall become an Excess Funding Borrower (as defined below), the
other Borrowers shall, on demand of such Excess Funding Borrower (but subject to
the next sentence hereof and to subsection (B) below) pay to such Excess Funding
Borrower an amount equal to each such Borrower's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the properties,
assets, liabilities and debts of such Excess Funding Borrower) of such Excess
Payment (as defined below). The payment obligation of the other Borrowers to any
Excess Funding Borrower under this Section 10.19(h) shall be subordinate and
subject in right of payment to the proper payment in full of the obligations of
such Borrowers under the other provisions of this Agreement and the other Loan
Documents, and such Excess Funding Borrower shall not exercise any right or
remedy with respect to such excess until payment and satisfaction in full of all
such obligations. For purposes hereof, (i) "Excess Funding Borrower" shall mean,
in respect of any obligations of the Borrowers arising under the other
provisions of this Agreement (hereafter, the "Joint Obligations"), any Borrower
that has paid an amount in excess of its Pro Rata Share of the Joint
Obligations, (ii) "Excess Payment" shall mean, in respect of any Joint
Obligations, the amount paid by an Excess Funding borrower in excess of its Pro
Rata Share of such Joint Obligations, and (iii) "Pro Rata Share", for the
purposes of this Section 10.19(h), shall mean, for any Borrower, the ratio
(expressed as a percentage) of (A) the amount by which the aggregate present
fair saleable value of all of its assets and properties exceeds the amount of
all debts and liabilities of such Borrower (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Borrower hereunder) to (B) the amount by which the aggregate present fair
saleable value of all assets and other properties of such Borrower and the other
Borrowers exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Borrower and the other Borrowers hereunder) of such
Borrower and the other Borrowers, all as of the Closing Date.
[SIGNATURE PAGES TO FOLLOW]
93
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first above
written.
▇▇▇▇▇ FINANCIAL CO.,
AS BORROWER AND GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: President and Treasurer
------------------------------------------
▇▇▇▇▇ CORPORATION,
AS BORROWER AND GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Vice President, Assistant Secretary and
---------------------------------------
Treasurer
-------------------------------------------
▇▇▇▇▇ INVESTMENT CO.,
A NEVADA CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
▇▇▇▇▇ WORLDWIDE, INC.,
A WISCONSIN CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
▇▇▇▇▇ INTERNATIONAL CO.,
A WISCONSIN CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
TEKLYNX INTERNATIONAL CO.,
A WISCONSIN CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
TRICOR DIRECT, INC.,
A DELAWARE CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
VARITRONIC SYSTEMS, INC.,
A MINNESOTA CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
▇▇▇▇▇ SERVICE CO.,
A WISCONSIN CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
WORLDMARK OF WISCONSIN, INC.
A DELAWARE CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
▇▇▇▇▇▇ HOLDING CO.,
A DELAWARE CORPORATION, AS GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Representative
------------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ W.A. ▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
NORWEST BANK WISCONSIN, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Vice President
------------------------------------------
SCHEDULE 1.1(A)
PRICING GRID*
----------------------------------------------------------------------------------------------------------------
LEVEL RATIO OF TOTAL COMMITMENT REVOLVING CREDIT REVOLVING
INDEBTEDNESS TO FEE BASE RATE CREDIT
CONSOLIDATED EBITDA ** MARGIN EURO-RATE
MARGIN
----------------------------------------------------------------------------------------------------------------
I Less than 1.0x 17.5 0 50
----------------------------------------------------------------------------------------------------------------
II Greater than or equal to 1.0x, 20 0 75
but less than 1.5x
----------------------------------------------------------------------------------------------------------------
III Greater than or equal to 1.5x, 22.5 0 100
but less than 2.0x
----------------------------------------------------------------------------------------------------------------
IV Greater than or equal to 2.0x, 25 0 125
but less than 2.5x
----------------------------------------------------------------------------------------------------------------
V Greater than or equal to 2.5x 27.5 0 150
----------------------------------------------------------------------------------------------------------------
*In basis points (100 basis points = 1.0%)
**Calculated on a rolling four-quarter basis.
AMENDED AS OF JANUARY 31, 2000
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 5 of 6
PART 1 -- COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES TO LENDERS
LENDER AMOUNT OF RATABLE SHARE
------ COMMITMENT -------------
----------
LENDER NAME (ALSO AGENT):
PNC Bank, National Association
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 45,666,666.68 22.8%
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER NAME:
Bank of America, N.A.
ADDRESS FOR NOTICES:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ W. A. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 33,333,333.33 16.7%
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ W. A. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
AMENDED AS OF JANUARY 31, 2000
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 5 of 6
PART 1 -- COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES TO LENDERS
LENDER AMOUNT OF RATABLE SHARE
------ COMMITMENT -------------
----------
LENDER NAME:
Bank One, NA (Main Office Chicago)
ADDRESS FOR NOTICES:
1 Bank One Plaza - 14th Floor
Mail Code ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 33,333,333.33 16.7%
1 Bank One Plaza - 14th Floor
Mail Code ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER NAME:
▇▇▇▇▇▇ Trust and Savings Bank
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 29,333,333.33 14.6%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.1(B)
AMENDED AS OF JANUARY 31, 2000
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 5 of 6
PART 1 -- COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES TO LENDERS
LENDER AMOUNT OF RATABLE SHARE
------ COMMITMENT -------------
----------
LENDER NAME:
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 33,333,333.33 16.7%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER NAME:
Norwest Bank Wisconsin, National
Association
ADDRESS FOR NOTICES:
Corporate Banking - Suite 1400
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS OF LENDING OFFICE: $ 25,000,000.00 12.5%
Corporate Banking - Suite 1400
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.1(B)
AMENDED AS OF JANUARY 31, 2000
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 5 of 6
PART 1 -- COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES TO LENDERS
LENDER AMOUNT OF RATABLE SHARE
------ COMMITMENT -------------
----------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
$200,000,000.00 100%
=============== ====
Total
SCHEDULE 1.1(B)