EXHIBIT 4
$150,000,000
REVOLVING CREDIT AGREEMENT
DATED AS OF
AUGUST 7, 2003
AMONG
OM GROUP, INC.
AS THE BORROWER
THE LENDING INSTITUTIONS NAMED THEREIN
AS LENDERS
NATIONAL CITY BANK
AS A LENDER, THE SWING LINE LENDER, THE LETTER OF CREDIT ISSUER,
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
THE LEAD ARRANGER, AND THE BOOK RUNNING MANAGER
KEYBANK NATIONAL ASSOCIATION
AND
LASALLE BANK NATIONAL ASSOCIATION
AS CO-SYNDICATION AGENTS
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of August 7, 2003, among the
following:
(i) OM GROUP, INC., a Delaware corporation (herein,
together with its successors and assigns, the "BORROWER");
(ii) the lending institutions signatory hereto (each a
"LENDER" and collectively, the "LENDERS"); and
(iii) NATIONAL CITY BANK, a national banking association,
as a Lender, the Swing Line Lender, the Letter of Credit Issuer, and as
the administrative agent (the "ADMINISTRATIVE AGENT"), the collateral
agent (the "COLLATERAL AGENT"), Book Running Manager, and Lead Arranger
(the "LEAD ARRANGER"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used
herein and defined in section 1 are used herein as so defined.
(2) The Borrower has applied to the Lenders for revolving credit
facilities in an aggregate amount of $150,000,000 to refinance certain existing
indebtedness, to support working capital needs, and for general corporate
purposes.
(3) Subject to and upon the terms and conditions set forth herein,
the Lenders are willing to make available to the Borrower the credit facility
provided for herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND TERMS
1.1. CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
"ACQUISITION" shall mean and include (i) any acquisition on a going
concern basis (whether by purchase, lease or otherwise) of any facility and/or
business operated by any Person who is not a Subsidiary of the Company, and (ii)
acquisitions of a majority of the outstanding equity or other similar interests
in any such Person (whether by merger, stock purchase or otherwise).
"ADDITIONAL SECURITY DOCUMENT" shall have the meaning provided in
section 8.12(b).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to section 11.9.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person, or, in the case of any Lender which is an
investment fund, the investment advisor thereof and any investment fund having
the same investment advisor. A Person shall be deemed to control a second Person
if such first Person possesses, directly or indirectly, the power (i) to vote
20% or more of the securities having ordinary voting power for the election of
directors or managers of such second Person or (ii) to direct or cause the
direction of the management and policies of such second Person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, (x) a director, officer or employee of a Person shall not, solely
by reason of such status, be considered an Affiliate of such Person;
and (y) neither the Administrative Agent nor any Lender shall in any event be
considered an Affiliate of the Borrower or any other Credit Party or any of
their respective Subsidiaries.
"AGREEMENT" shall mean this Revolving Credit Agreement, as the same may
be from time to time further modified, amended, restated, amended and restated
and/or supplemented.
"AIRCRAFT LEASE" shall mean the lease between the Borrower and G.E.
Capital dated as of September 28, 2000 with respect to the Borrower's corporate
aircraft.
"APPLICABLE COMMITMENT FEE" shall mean a rate per annum set forth in
the Pricing Grid in section 2.7(g).
"APPLICABLE EUROCURRENCY MARGIN" shall have the meaning provided in
section 2.7(g).
"APPLICABLE LENDING OFFICE" shall mean, with respect to each Lender,
(i) such Lender's Domestic Lending Office in the case of Borrowings consisting
of Prime Rate Loans and (ii) such Lender's Eurocurrency Lending Office in the
case of Borrowings consisting of Eurocurrency Loans, and (iii) in the case of
Borrowings from the Swing Line Lender which consist of Money Market Rate Loans,
the Domestic Lending Office of the Swing Line Lender.
"APPLICABLE PRIME RATE MARGIN" shall have the meaning provided in
section 2.7(g).
"ASSET SALE" shall mean, with respect to any Person, any sale, lease,
transfer or other disposition by such Person (including a consolidation or
merger or other sale of any Subsidiary of such Person with, into or to any other
Person in a transaction in which such Subsidiary ceases to be a Subsidiary) of
(i) all or substantially all of the assets of any division or line of business
of such Person or any of its Subsidiaries, (ii) any manufacturing or processing
plant or facility of such Person or any of its Subsidiaries, (iii) shares of
capital stock or other equity interests (or any options, warrants or rights to
acquire any such shares or other equity interests) of a Subsidiary, with the
result that the Company's fully diluted direct and indirect percentage ownership
interest in such Subsidiary is reduced, including any such transaction resulting
in such Subsidiary ceasing to be a Subsidiary, or effected by means of a
liquidation of a corporation, partnership or limited liability company which is
not a Wholly-Owned Subsidiary, or (v) other non-cash assets or rights of such
Person or any Subsidiary outside the ordinary course of business, PROVIDED that
the term Asset Sale specifically excludes (x) any sales, transfers or other
dispositions of inventory, or obsolete or excess furniture, fixtures, equipment
or other property, real or personal, tangible or intangible, in each case in the
ordinary course of business, (y) any Event of Loss, and (z) any sale of
marketable securities in the ordinary course of business. The term Asset Sale
specifically includes any Sale and Lease-Back Transaction.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by section 12.4), and accepted by the Administrative Agent,
in substantially the form of Exhibit C or any other form approved by the
Administrative Agent.
"AUTHORIZED OFFICER" shall mean any officer or employee of the Borrower
designated as such in writing to the Administrative Agent by the Company.
"BANKRUPTCY CODE" shall have the meaning provided in section 10.1(h).
"BORROWER" shall have the meaning provided in the first paragraph of
this Agreement.
"BORROWING" shall mean a Revolving Borrowing or a Swing Line Borrowing,
as the case may be.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the city in which the applicable Payment Office is located a legal holiday or
a day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on,
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Eurocurrency Loans, any day which is a Business Day described in clause (i) and
which is also a day on which dealings are carried on in the London interbank
market.
"CAPITAL LEASE" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities identified as "capital lease
obligations" (or any similar words) on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP.
"CASH EQUIVALENTS" shall mean any of the following:
(i) 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 one year from the date of acquisition;
(ii) U.S. dollar denominated time deposits, certificates
of deposit and bankers' acceptances of (x) any Lender or (y) any bank
whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the
equivalent thereof (any such bank, an "APPROVED BANK"), in each case
with maturities of not more than three months from the date of
acquisition;
(iii) commercial paper issued by any Lender or Approved
Bank or by the parent company of any Lender or Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or
financial company with a short- term commercial paper rating of at
least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's, or guaranteed by any industrial company
with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case may be,
and in each case maturing within 90 days after the date of acquisition;
(iv) fully collateralized repurchase agreements entered
into with any Lender or Approved Bank having a term of not more than 30
days and covering securities described in clause (i) above;
(v) investments in money market funds substantially all
the assets of which are comprised of securities of the types described
in clauses (i) through (iv) above;
(vi) investments in money market funds access to which is
provided as part of "sweep" accounts maintained with a Lender or an
Approved Bank;
(vii) investments in industrial development revenue bonds
which (A) "re-set" interest rates not less frequently than quarterly,
(B) are entitled to the benefit of a remarketing arrangement with an
established broker dealer, and (C) are supported by a direct pay letter
of credit covering principal and accrued interest which is issued by an
Approved Bank;
(viii) investments in pooled funds or investment accounts
consisting of investments of the nature described in the foregoing
clause (vii); and
(ix) in the case of any Foreign Subsidiary only, short
term deposits, certificates of deposit, repurchase agreements and
similar financial instruments, in any currency, with or issued by any
local or international financial institution with undivided capital and
surplus of at least $350,000,000 (or the equivalent in any applicable
currency).
"CASH PROCEEDS" shall mean, with respect to (i) any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset
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Sale, other than the portion of such deferred payment constituting interest, but
only as and when so received) received by the Borrower and/or any Subsidiary
from such Asset Sale, and (ii) any Event of Loss, the aggregate cash payments,
including all insurance proceeds and proceeds of any award for condemnation or
taking, received in connection with such Event of Loss.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the following:
(i) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the
Company's Board of Directors (together with any new directors (x) whose
election by the Company's Board of Directors was, or (y) whose
nomination for election by the Company's shareholders was (prior to the
date of the proxy or consent solicitation relating to such nomination),
approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved),
shall cease for any reason to constitute a majority of the directors
then in office;
(ii) any Person or group (as such term is defined in
section 13(d)(3) of the ▇▇▇▇ ▇▇▇) shall acquire, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d-3 and
13d-5 of the ▇▇▇▇ ▇▇▇) of more than 50%, on a fully diluted basis, of
the economic or voting interest in the Company's capital stock;
(iii) the shareholders of the Borrower approve a merger or
consolidation of the Borrower with any other Person, OTHER than a
merger or consolidation which would result in the voting securities of
the Borrower outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted or
exchanged for voting securities of the surviving or resulting entity)
more than 50% of the combined voting power of the voting securities of
the Borrower or such surviving or resulting entity outstanding after
such merger or consolidation;
(iv) the shareholders of the Borrower approve a plan of
complete liquidation of the Borrower or an agreement or agreements for
the sale or disposition by the Borrower of all or substantially all of
the Company's assets; and/or
(v) any "change in control" or any similar term as
defined in any of the indentures, credit agreements or other
instruments governing any Indebtedness of the Borrower or any of its
Subsidiaries with an outstanding principal amount, or providing for
commitments to lend in an outstanding principal amount, of at least
$10,000,000 (or the equivalent amount in any other currency).
"CLOSING DATE" shall mean the date, on or after the Effective Date,
upon which the conditions specified in section 6.1 are satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"COLLATERAL" shall mean any collateral covered by any Security
Document.
"COLLATERAL AGENT" shall mean the Administrative Agent acting as
Collateral Agent for the Lenders pursuant to the Security Documents.
"COLLATERAL ASSIGNMENT OF PATENTS" shall mean each collateral
assignment of patents substantially in the form of Exhibit D-1, executed and
delivered in connection herewith, as the same may be amended, restated, amended
and restated, supplemented or otherwise modified from time to time.
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"COLLATERAL ASSIGNMENT OF TRADEMARKS" shall mean each collateral
assignment of trademarks substantially in the form of Exhibit D-2, heretofore or
hereafter executed and delivered in connection herewith, as the same may be
amended, restated, amended and restated, supplemented or otherwise modified from
time to time.
"COMMITMENT" shall mean, with respect to each Lender, its Revolving
Commitment and its Swing Line Commitment, if any, or either or both of such
Commitments of a Lender, as applicable.
"COMMITMENT FEE" shall have the meaning provided in section 4.1(a).
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, all
amortization expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events amounts expended or capitalized under Capital Leases
and Synthetic Leases but excluding any amount representing capitalized interest)
by the Borrower and its Subsidiaries during that period that, in conformity with
GAAP, are or are required to be included in the property, plant or equipment
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, all
depreciation expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income for such period; PLUS (A) the sum of the amounts for such period included
in determining such Consolidated Net Income of (i) Consolidated Interest
Expense, (ii) Consolidated Income Tax Expense, (iii) Consolidated Depreciation
Expense, (iv) Consolidated Amortization Expense, (v) non-cash losses and charges
which are properly classified as extraordinary or non-recurring, (vi) non-cash
charges associated with FAS 142 and FAS 144, and (vii) restructuring charges
taken for the fiscal quarters of the Borrower ending March 31, 2003 through and
including December 31, 2003 less (B) gains on sales of assets and other
extraordinary gains and other non-recurring non-cash gains; all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP; EXCEPT that in computing Consolidated Net Income for purposes of this
definition, there shall be excluded therefrom (x) the income, (or loss) of any
entity (other than Subsidiaries of the Company) in which the Borrower or any of
its Subsidiaries has a joint or minority interest, except to the extent of the
amount of dividends or other distributions actually paid to the Borrower or any
of its Subsidiaries during such period, and (y) the income of any Subsidiary of
the Borrower to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any period, all
provisions for taxes based on the net income of the Borrower or any of its
Subsidiaries (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto), all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, total
interest expense (including that which is capitalized, that which is
attributable to Capital Leases or Synthetic Leases and the pre-tax equivalent of
dividends payable on Redeemable Stock) of the Borrower and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and net costs
under Hedge Agreements, BUT EXCLUDING, HOWEVER, any amortization or write-off of
deferred financing costs and any charges for prepayment penalties on prepayment
of Indebtedness.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss), without deduction for minority interests, of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP.
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"CONSOLIDATED SENIOR DEBT" shall mean the sum (without duplication) of
all Indebtedness (other than Subordinated Indebtedness) of the Borrower and each
of its Subsidiaries, all as determined on a consolidated basis.
"CONSOLIDATED TOTAL DEBT" shall mean the sum (without duplication) of
all Indebtedness (other than Indebtedness described in clause (x) of the
definition thereof) of the Borrower and of each of its Subsidiaries, all as
determined on a consolidated basis.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to a
continuation of Eurocurrency Loans for an additional Interest Period as provided
in section 2.8.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Loans of one Type into Loans of another Type, pursuant to section 2.6, 2.8(b),
2.9 or 5.2.
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty, the Security Documents, and any Letter of Credit Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the issuance
of any Letter of Credit.
"CREDIT PARTY" shall mean the Borrower and each of the Borrower's
Subsidiaries and Affiliates which is a party to any Credit Document.
"DEFAULT" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DESIGNATED HEDGE AGREEMENT" shall mean any Hedge Agreement to which
the Borrower or any of its Subsidiaries is a party which, pursuant to (x) a
written instrument signed by the Administrative Agent and (y) the following
provisions, has been designated as a Designated Hedge Agreement so that the
Company's or Subsidiary's counterparty's credit exposure thereunder will be
entitled to share in the benefits of the Subsidiary Guaranty and the Security
Documents to the extent the Subsidiary Guaranty and such Security Documents
provide guarantees or security for creditors of the Borrower or any Subsidiary
under Designated Hedge Agreements:
(i) The Administrative Agent will, without the approval
or consent of the Lenders, designate a Hedge Agreement entered into
with any Lender or any Affiliate of any Lender as a Designated Hedge
Agreement so long as the Administrative Agent reasonably determines, at
the time of such designation and after giving effect thereto, in
accordance with its own customary valuation practices, that the maximum
aggregate credit exposure to the Borrower and its Subsidiaries of all
counterparties under all Designated Hedge Agreements is not more than
$30,000,000.
(ii) The Administrative Agent may, without the approval or
consent of the Lenders, designate a Hedge Agreement as a Designated
Hedge Agreement so long as the Administrative Agent reasonably
determines, at the time of such designation and after giving effect
thereto, in accordance with its own customary valuation practices, that
the maximum aggregate credit exposure to the Borrower and its
Subsidiaries of all counterparties under all Designated Hedge
Agreements is not more than $30,000,000.
(iii) The Administrative Agent will not designate any Hedge
Agreement as a Designated Hedge Agreement without the approval, consent
or instructions of the Required Lenders if the Administrative Agent
reasonably determines, at the time of such designation and after giving
effect thereto, in accordance with its own customary valuation
practices, that the maximum aggregate credit exposure to the Borrower
and its Subsidiaries of all counterparties under all Designated Hedge
Agreements is more than $30,000,000.
(iv) It shall be a condition to the rights of any
counterparty creditor of the Borrower or any Subsidiary under any
Designated Hedge Agreement (other than in the case of a Lender or an
Affiliate of
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any Lender) to share in any recoveries of enforcement of the Subsidiary
Guaranty and of the Security Documents, that such counterparty creditor
shall have entered into an intercreditor or similar agreement with the
Administrative Agent under which recoveries from the Borrower and its
Subsidiaries with respect to such Designated Hedge Agreement will be
shared in a manner consistent with the provisions of section 10.3
hereof.
"DOLLARS", "U.S. DOLLARS" and the sign "$" each means lawful money of
the United States.
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender, the
affiliate, branch or office of such Lender specified as its Domestic Lending
Office in the Administrative Questionnaire delivered by it to the Administrative
Agent or in the Assignment and Assumption pursuant to which it became a Lender,
or such other affiliate, branch or office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary organized under the
laws of the United States of America, any State thereof, the District of
Columbia, or any United States possession, the chief executive office and
principal place of business of which is located in, and which conducts the
majority of its business within, the United States of America and its
territories and possessions; excluding, however, any Subsidiary of a Foreign
Subsidiary.
"EFFECTIVE DATE" shall have the meaning provided in section 12.10.
"ELIGIBLE ASSIGNEE" shall mean (a) a Lender; (b) an Affiliate of a
Lender; and (c) any other Person (other than a natural person) that is an
"accredited investor" (as defined in SEC Regulation D) approved by (i) the
Administrative Agent and (ii) unless a Default or Event of Default shall have
occurred and be continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries and shall further not include any direct competitor
of the Borrower or any Person engaged in the same or similar principal lines of
business as the Borrower and its Subsidiaries considered as a whole, or an
Affiliate of any such competitor or Person.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law or any permit issued under any such law
(hereafter "CLAIMS"), including, without limitation, (i) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the storage, treatment or Release (as defined
in CERCLA) of any Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of common
law now or hereafter in effect and in each case as amended, and any binding and
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment issued to or
rendered against the Borrower or any of its Subsidiaries relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.;
the Safe Drinking Water Act, 42 U.S.C. Section 3803 ET SEQ.; the Oil Pollution
Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 ET SEQ., the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 ET SEQ. and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 ET SEQ. (to the extent
it regulates occupational exposure to Hazardous Materials); and any state and
local or foreign counterparts or equivalents, in each case as amended from time
to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
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"ERISA AFFILIATE" shall mean each person (as defined in section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of section 414(b), (c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"EURO" shall mean the single currency of the Participating Member
States of the European Union.
"EUROCURRENCY LENDING OFFICE" shall mean, with respect to any Lender,
the affiliate, branch or office of such Lender specified as its Eurocurrency
Lending Office in the Administrative Questionnaire delivered by it to the
Administrative Agent or in the Assignment and Assumption pursuant to which it
became a Lender, or such other affiliate, branch or office or offices of such
Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"EUROCURRENCY LOANS" shall mean each Loan bearing interest at the rates
provided in section 2.7(b).
"EUROCURRENCY RATE" shall mean with respect to each Interest Period for
a Eurocurrency Loan, (A) either (i) the rate per annum for deposits in Dollars
for a maturity most nearly comparable to such Interest Period which appears on
page 3740 or 3750, as applicable, of the Dow ▇▇▇▇▇ Telerate Screen as of 11:00
A.M. (local time at the Notice Office) on the date which is two Business Days
prior to the commencement of such Interest Period, or (ii) if such a rate does
not appear on such a page, an interest rate per annum equal to the average
(rounded to the nearest ten thousandth of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in Dollars are offered
to each of the Reference Banks by prime banks in the London interbank
Eurocurrency market for deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurocurrency Loan for which an interest rate
is then being determined with maturities comparable to the Interest Period to be
applicable to such Eurocurrency Loan, determined as of 11:00 A.M. (London time)
on the date which is two Business Days prior to the commencement of such
Interest Period, in each case divided (and rounded to the nearest ten thousandth
of 1%) by (B) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D); PROVIDED, HOWEVER, that in the event that the rate referred to in
clause (i) above is not available at any such time for any reason, then the rate
referred to in clause (i) shall instead be the average (rounded to the nearest
ten thousandth of 1%) of the rates at which U.S. dollar deposits of $5,000,000
are offered to the Reference Banks in the London interbank market at
approximately 11:00 a.m. (London time), two Business Days prior to the
commencement of such Interest Period, for contracts which would be entered into
at the commencement of such Interest Period.
"EVENT OF DEFAULT" shall have the meaning provided in section 10.1.
"EVENT OF LOSS" shall mean, with respect to any property, (i) the
actual or constructive total loss of such property or the use thereof, resulting
from destruction, damage beyond repair, or the rendition of such property
permanently unfit for normal use from any casualty or similar occurrence
whatsoever, (ii) the destruction or damage of a portion of such property from
any casualty or similar occurrence whatsoever under circumstances in which such
damage cannot reasonably be expected to be repaired, or such property cannot
reasonably be expected to be restored to its condition immediately prior to such
destruction or damage, within 90 days after the occurrence of such destruction
or damage, (iii) the condemnation, confiscation or seizure of, or requisition of
title to or use of, any property, or (iv) in the case of any property located
upon a Leasehold, the termination or expiration of such Leasehold.
"EXCLUDED SUBSIDIARY" shall have the meaning provided in section 8.17.
"EXEMPTED DISPOSITION" shall mean a disposition of assets or divisions
set forth on Annex VII attached hereto.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section
7.17.
8
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meanings provided in
section 7.17.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in section
3.1(d).
"FACILITY" shall mean the Revolving Facility and the Swing Line
Facility, or both of them, as applicable.
"FACING FEE" shall have the meaning provided in section 4.1(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
section 4.1.
"FINANCIAL PROJECTIONS" shall have the meaning provided in section
6.1(n).
"FIXED CHARGE COVERAGE RATIO" shall mean, for any Testing Period, the
ratio of
(i) Consolidated EBITDA for such Testing Period,
TO
(ii) the sum of (A) Consolidated Interest Expense, (B)
Consolidated Income Tax Expense, (C) Consolidated Capital Expenditures
(other than any capital expenditures which are funded with the proceeds
of Indebtedness permitted hereunder (other than Revolving Loans)), (D)
scheduled or mandatory repayments (other than mandatory prepayments of
the Loans pursuant to sections 5.2(b) through (i)) prepayments or
redemptions of the principal of Indebtedness and the stated or
liquidation value of Redeemable Stock (including required reductions in
committed credit facilities), (E) without duplication of any amount
included under the preceding clause (D), scheduled payments
representing the principal portion of Capitalized Leases and Synthetic
Leases, and (F) the sum of all Restricted Payments by the Borrower, if
any, in each case on a consolidated basis for the Borrower and its
Subsidiaries for such Testing Period (the items in this clause (ii) the
"FIXED CHARGES").
"FIXED CHARGES" shall have the meaning provided in the definition of
Fixed Charge Coverage Ratio.
"FOREIGN LENDER" means a Person which is not a United States person (as
such term is defined in section 7701(a)(30) of the Code) for Federal Income Tax
purposes.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary which is not
incorporated (or otherwise organized) in the United States and substantially all
of whose assets and properties are located, or substantially all of whose
business is carried on, outside the United States.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to sections 1.3 and 12.7(a).
"GUARANTY OBLIGATIONS" shall mean as to any Person (without
duplication) any obligation of such Person guaranteeing any Indebtedness
("PRIMARY INDEBTEDNESS") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase any such
primary Indebtedness or any property constituting direct or indirect security
9
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary Indebtedness or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary Indebtedness of the
ability of the primary obligor to make payment of such primary Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary Indebtedness in respect of which such Guaranty Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (ii) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "restricted hazardous materials", "extremely hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect, under any applicable Environmental Law.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement (ii) any currency swap agreement, forward currency
purchase agreement or similar agreement or arrangement designed to protect
against fluctuations in currency exchange rates, and (iii) any forward commodity
purchase agreement or similar agreement or arrangement designed to protect
against fluctuations in raw material or other commodity prices.
"INDEBTEDNESS" of any Person shall mean without duplication:
(i) all indebtedness of such Person for borrowed money;
(ii) all bonds, notes, debentures and similar debt
securities of such Person;
(iii) the deferred purchase price of capital assets or
services which in accordance with GAAP would be shown on the liability
side of the balance sheet of such Person;
(iv) the face amount of all letters of credit or bankers'
acceptances issued for the account of such Person and, without
duplication, all drafts drawn thereunder;
(v) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances;
(vi) all Indebtedness of a second Person secured by any
Lien on any property owned by such first Person, whether or not such
Indebtedness has been assumed;
(vii) all Capitalized Lease Obligations of such Person;
(viii) the present value, determined on the basis of the
implicit interest rate, of all basic rental obligations under all
Synthetic Leases of such Person;
(ix) all net obligations of such Person under Hedge
Agreements;
(x) the full outstanding balance of trade receivables,
notes or other instruments sold with full recourse (and the portion
thereof subject to potential recourse, if sold with limited recourse),
other than in any such case any thereof sold solely for purposes of
collection of delinquent accounts;
10
(xi) the stated value, or liquidation value if higher, of
all Redeemable Stock of such Person; and
(xii) all Guaranty Obligations of such Person;
PROVIDED that (x) neither trade payables nor other similar accrued expenses, in
each case arising in the ordinary course of business, nor obligations in respect
of insurance policies or performance or surety bonds which themselves are not
guarantees of Indebtedness (nor drafts, acceptances or similar instruments
evidencing the same nor obligations in respect of letters of credit supporting
the payment of the same), shall constitute Indebtedness; and (y) the
Indebtedness of any Person shall in any event include (without duplication) the
Indebtedness of any other entity (including any general partnership in which
such Person is a general partner) to the extent such Person is liable thereon as
a result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide expressly
that such Person is not liable thereon.
"INTEREST COVERAGE RATIO" shall mean, for any Testing Period, the ratio
of
(i) Consolidated EBITDA for such Testing Period,
TO
(ii) Consolidated Interest Expense for such Testing
Period.
"INTEREST PERIOD" with respect to any Eurocurrency Loan shall mean the
interest period applicable thereto, as determined pursuant to section 2.8.
"LEAD ARRANGER" shall have the meaning provided in the preamble to this
Agreement.
"LC PARTICIPANT" shall have the meaning provided in section 3.4(a).
"LEASEHOLDS" of any Person shall mean all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of this
Agreement.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender in violation of the requirements of this Agreement to
make available its portion of any incurrence of Loans, to fund its Swing Line
Participation Amount under section 2.4(b), or to fund its portion of any
unreimbursed payment under section 3.4(c) or (ii) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
the obligations under section 2.1, section 2.4(b) and/or section 3.4(c), in the
case of either (i) or (ii) as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"LENDER REGISTER" shall have the meaning provided in section 12.16.
"LETTER OF CREDIT" shall have the meaning provided in section 3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in
section 3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section
4.1(b).
"LETTER OF CREDIT ISSUER" shall mean in respect of any Letter of
Credit, (1) NCB, and/or (2) such other Lender that is requested, and agrees, to
so act by the Company, and is approved by the Administrative Agent.
"LETTER OF CREDIT OBLIGOR" shall have the meaning provided in section
3.1(a).
11
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum,
without duplication, of the Dollar amount of (i) the aggregate Stated Amount of
all outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid
Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in section
3.2(a).
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean any or all of the following: (i)
any material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of, when used with reference
to the Borrower and/or any of its Subsidiaries, the Borrower and its
Subsidiaries, taken as a whole, or when used with reference to any other Person,
such Person and its Subsidiaries, taken as a whole, as the case may be; (ii) any
material adverse effect on the ability of the Borrower or any other Credit Party
to perform its obligations under the Credit Documents to which it is a party;
(iii) any material adverse effect on the ability of the Borrower and its
Subsidiaries, taken as a whole, to pay their liabilities and obligations as they
mature or become due; or (iv) any material adverse effect on the validity,
effectiveness or enforceability, as against any Credit Party, of any of the
Credit Documents to which it is a party.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to any
Person, any Subsidiary of such Person (i) that has assets at such time
comprising 5% or more of the consolidated assets of such Person and its
Subsidiaries, or (ii) whose operations in the current fiscal year are expected
to, or whose operations in the most recent fiscal year did (or would have if
such Person had been a Subsidiary for such entire fiscal year), represent 5% or
more of the consolidated earnings before interest, taxes, depreciation and
amortization of such Person and its Subsidiaries for such fiscal year.
"MATURITY DATE" shall mean August 7, 2006, or such earlier date as the
Total Revolving Commitment is terminated.
"MINIMUM BORROWING AMOUNT" shall mean:
(i) with respect to Borrowings under the Revolving
Facility consisting of (x) Prime Rate Loans, $2,500,000, with minimum
increments thereafter of $500,000, or (y) Eurocurrency Loans,
$5,000,000 with minimum increments thereafter of $1,000,000; or
(ii) with respect to a Borrowing under the Swing Line
Facility consisting of (x) a Prime Rate Loan, $100,000, with minimum
increments thereafter of $50,000, or (y) a Money Market Rate Loan,
$250,000, with minimum increments thereafter of $50,000.
"MONEY MARKET RATE LOAN" shall mean each Swing Line Loan bearing
interest at a rate provided in section 2.7(c).
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in
section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions or has within any of the
preceding three plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other
than a Multiemployer Plan, to which the Borrower or any ERISA Affiliate, and one
or more employers other than the Borrower or an ERISA Affiliate, is
12
making or accruing an obligation to make contributions or, in the event that any
such plan has been terminated, to which the Borrower or an ERISA Affiliate made
or accrued an obligation to make contributions during any of the five plan years
preceding the date of termination of such plan.
"NCB" shall mean National City Bank, a national banking association,
together with its successors and assigns.
"NET CASH PROCEEDS" shall mean, with respect to (i) any Asset Sale, the
Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses
of sale incurred in connection with such Asset Sale, and other reasonable and
customary fees and expenses incurred, and all state and local taxes paid or
reasonably estimated to be payable by such Person, as a consequence of such
Asset Sale and the payment of principal, premium and interest of Indebtedness
(other than the Obligations) secured by the asset which is the subject of the
Asset Sale and required to be, and which is, repaid under the terms thereof as a
result of such Asset Sale, (B) amounts of any distributions payable to holders
of minority interests in the relevant Person or in the relevant property or
assets and (C) incremental federal, state and local income taxes paid or payable
as a result thereof; and (ii) any Event of Loss, the Cash Proceeds resulting
therefrom net of (A) reasonable and customary expenses incurred in connection
with such Event of Loss, and local taxes paid or reasonably estimated to be
payable by such Person, as a consequence of such Event of Loss and the payment
of principal, premium and interest of Indebtedness (other than the Obligations)
secured by the asset which is the subject of the Event of Loss and required to
be, and which is, repaid under the terms thereof as a result of such Event of
Loss, (B) amounts of any distributions payable to holders of minority interests
in the relevant Person or in the relevant property or assets and (C) incremental
federal, state and local income taxes paid or payable as a result thereof.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"NON-DEFAULTING LENDER" shall mean each Lender other than a Defaulting
Lender.
"NOTE" shall mean a Revolving Note or the Swing Line Note, as
applicable.
"NOTICE OF BORROWING" shall have the meaning provided in section
2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section 2.6.
"NOTICE OFFICE" shall mean the office of the Administrative Agent at
National City Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
Agency Services Group (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), or such other office, located
in a city in the United States Eastern Time Zone, as the Administrative Agent
may designate to the Borrower from time to time.
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by the
Borrower or any other Credit Party to the Administrative Agent, the Collateral
Agent, any Lender or any Letter of Credit Issuer pursuant to the terms of this
Agreement or any other Credit Document.
"OPERATING LEASE" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is not accounted for as a Capital Lease on the balance
sheet of that Person.
"PARTICIPANT" has the meaning assigned to such term in section 12.4(d).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent at
National City Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
Agency Services Group (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), or such other office, located
in a city in the United States Eastern Time Zone, as the Administrative Agent
may designate to the Borrower from time to time.
13
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to section 4002 of ERISA, or any successor thereto.
"PERCENTAGE" shall mean at any time for any Lender with a Commitment
under any Facility (other than the Swing Line Facility), the percentage obtained
by dividing such Lender's aggregate Commitment under such Facilities, as
applicable, by the Total Commitment (exclusive of the Swing Line Commitment),
PROVIDED, that if the Total Commitment has been terminated, the Percentage for
each Lender shall be determined by dividing such Lender's aggregate outstanding
Loans (exclusive of the Swing Line Loans) by the total of all outstanding Loans
for all Lenders (exclusive of the Swing Line Loans).
"PERMITTED ACQUISITION" shall mean and include any Acquisition as to
which all of the following conditions are satisfied:
(i) such Acquisition involves a line or lines of business
which is complementary to the lines of business in which the Borrower
and its Subsidiaries, considered as an entirety, are engaged on the
Effective Date, UNLESS the Required Lenders specifically approve or
consent to such Acquisition in writing;
(ii) such Acquisition is not actively opposed by the Board
of Directors (or similar governing body) of the selling Person or the
Person whose equity interests are to be acquired, UNLESS all of the
Lenders specifically approve or consent to such Acquisition in writing;
(iii) the aggregate consideration for such Acquisition and
all other Acquisitions completed during any fiscal year of the
Borrower, including the principal amount of any assumed Indebtedness
and (without duplication) any Indebtedness of any acquired Person or
Persons, does not exceed $50,000,000, UNLESS the Required Lenders
specifically approve or consent to such Acquisition in writing; and
(iv) at least 10 Business Days prior to the completion of
any such Acquisition involving aggregate consideration, including the
principal amount of any assumed Indebtedness and (without duplication)
any Indebtedness of any acquired Person or Persons, in excess of
$10,000,000, the Borrower shall have delivered to the Lenders (A)
audited financial statements for the acquired businesses for the most
recent fiscal year, unless the same are unavailable and unaudited
financial statements are acceptable to the Required Lenders and (B) a
certificate of an Authorized Officer of the Borrower demonstrating, in
reasonable detail, compliance with the ratios referred to in sections
9.7, 9.8 and 9.9 on a Pro Forma Basis;
PROVIDED, that the term Permitted Acquisition specifically excludes any loans,
advances or minority investments otherwise permitted pursuant to section 9.5.
"PERMITTED LIENS" shall mean Liens permitted by section 9.3.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust, company or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as defined
in section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"PLEDGE AGREEMENT" shall mean each pledge agreement substantially in
the form of Exhibit E, executed and delivered in connection herewith, as the
same may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
"PRIME RATE" shall mean, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the greater of (i) the rate of interest established by
14
the Administrative Agent from time to time, as its prime rate, whether or not
publicly announced, which interest rate may or may not be the lowest rate
charged by it for commercial loans or other extensions of credit; and (ii) the
Federal Funds Effective Rate in effect from time to time PLUS 1/2 of 1% per
annum.
"PRIME RATE LOAN" shall mean each Loan, bearing interest at the rate
provided in section 2.7(a).
"PRO FORMA BASIS" shall mean, with respect to compliance with any test
or covenant hereunder, in connection with or after the occurrence of any
Acquisition or any Asset Sale, compliance with such covenant or test after
giving effect to such Acquisition or Asset Sale, (including pro forma
adjustments arising out of events which are directly attributable to such
proposed Acquisition or Asset Sale, are factually supportable and are expected
to have a continuing impact, in each case determined on a basis consistent with
Article 11 of Regulation S-X of the Securities Act of 1933, as amended, and as
interpreted by the Staff of the Securities and Exchange Commission using, for
purposes of determining such compliance, the historical financial statements of
all entities or assets so acquired or to be acquired (or the assets so disposed
of or to be disposed of in the Asset Sale) and the consolidated financial
statements of the Borrower and its Subsidiaries which shall be reformulated as
if such Acquisition, such Asset Sale, and any other Acquisitions or Asset Sales
that have been consummated during the relevant period, and the incurrence,
assumption and/or repayment of any Indebtedness or other liabilities incurred in
connection with any such Acquisitions or related to the Assets so disposed of or
to be disposed of in any such Asset Sale or otherwise during the relevant period
had been consummated, incurred or repaid, respectively, at the beginning of such
period and assuming that any such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant Acquisition or Asset
Sale at the interest rates applicable to outstanding Loans during such period.
For the avoidance of doubt, to the extent the Borrower or any Subsidiary has, at
the end of any Testing Period, assets on its balance sheet classified as "Assets
held for Sale", such assets, and the related financial items, including income
and expense items, shall be included in calculating compliance with covenants or
tests on a Pro Forma Basis.
"PRO FORMA COMPLIANCE" shall mean, at any date of determination, that
the Borrower shall be in pro forma compliance with the covenants set forth in
Sections 9.7, 9.8 and 9.9 as of the last day of the most recent fiscal
quarter-end (computed on the basis of (a) balance sheet amounts as of the most
recently completed fiscal quarter, and (b) income statement amounts for the most
recently completed period of four consecutive fiscal quarters, in each case, for
which financial statements have been delivered to the Administrative Agent and
calculated on a Pro Forma Basis.
"PROHIBITED TRANSACTION" shall mean a transaction with respect to a
Plan that is prohibited under section 4975 of the Code or section 406 of ERISA
and not exempt under section 4975 of the Code or section 408 of ERISA.
"PUBLIC NOTES" shall mean the Borrower's 9.25% Senior Subordinated
Notes due 2011 in the original aggregate principal amount of $400,000,000.
"PUBLIC NOTE DOCUMENTS" shall mean each of (i) the Indenture dated as
of December 12, 2001 among the Borrower, as Issuer, and ▇▇▇▇▇ Fargo, as
successor trustee, pursuant to which the Public Notes were issued and (ii) the
Public Notes.
"QUOTED RATE" shall have the meaning provided in section 2.3(c).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 ET SEQ.
"REAL PROPERTY" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"REDEEMABLE STOCK" shall mean with respect to any Person any capital
stock or similar equity interests of such Person that (i) is by its terms
subject to mandatory redemption, in whole or in part, pursuant to a sinking
fund, scheduled redemption or similar provisions, at any time prior to the
latest Maturity Date; or (ii) otherwise is required to be repurchased or retired
on a scheduled date or dates, upon the occurrence of any event or circumstance,
at the
15
option of the holder or holders thereof, or otherwise, at any time prior to the
latest Maturity Date under this Agreement, other than any such repurchase or
retirement occasioned by a "change of control" or similar event.
"REFERENCE BANKS" shall mean (i) NCB and (ii) any other Lender or
Lenders selected as a Reference Bank by the Administrative Agent and the
Required Lenders, PROVIDED, that if any of such Reference Banks is no longer a
Lender, such other Lender or Lenders as may be selected by the Administrative
Agent acting on instructions from the Required Lenders.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, trustees, employees,
agents and advisors of such Person and such Person's Affiliates.
"REPORTABLE EVENT" shall mean an event described in section 4043 of
ERISA or the regulations thereunder with respect to a Plan, other than those
events as to which the notice requirement is waived under subsections .22, .23,
..25, .27, .28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of PBGC
Regulation section 4043.
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders whose outstanding
Revolving Loans and Unutilized Revolving Commitments constitute at least 51% of
the sum of the total outstanding Revolving Loans and Unutilized Revolving
Commitments of Non-Defaulting Lenders (PROVIDED that, for purposes hereof,
neither the Borrower, nor any of its Affiliates, shall be included in (i) the
Lenders holding such amount of the Revolving Loans or having such amount of the
Unutilized Revolving Commitments, or (ii) determining the aggregate unpaid
principal amount of the Revolving Loans or Unutilized Revolving Commitments).
"RESTRICTED PAYMENT" shall mean (i) any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Subsidiary, or (ii) any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower.
"REVOLVING BORROWING" shall mean the incurrence of Revolving Loans
consisting of one Type of Loan, by the Borrower from all of the Lenders having
Commitments in respect thereof on a PRO RATA basis on a given date (or resulting
from Conversions or Continuations on a given date), having in the case of
Eurocurrency Loans the same Interest Period.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I hereto as its "Revolving
Commitment" as the same may be reduced from time to time pursuant to section
4.2, 4.3 and/or 10.2 or adjusted from time to time as a result of assignments to
or from such Lender pursuant to section 12.4.
"REVOLVING FACILITY" shall mean the credit facility evidenced by the
Total Revolving Commitment.
"REVOLVING FACILITY PERCENTAGE" shall mean at any time for any Lender,
the percentage obtained by dividing such Lender's Revolving Commitment by the
Total Revolving Commitment, PROVIDED, that if the Total Revolving Commitment has
been terminated, the Revolving Facility Percentage for each Lender shall be
determined by dividing such Lender's Revolving Loans by the total of all
outstanding Revolving Loans for all Lenders.
"REVOLVING LOAN" shall have the meaning provided in section 2.1(a).
"REVOLVING NOTE" shall have the meaning provided in section 2.5(a).
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"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than one year and except for leases between the
Borrower and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such Person.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"SECTION 5.4(b)(ii) CERTIFICATE" shall have the meaning provided in
section 5.4(b)(ii).
"SECURITY AGREEMENT" shall mean each security agreement substantially
in the form of Exhibit F executed and delivered in connection herewith, as the
same may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
"SECURITY DOCUMENTS" shall mean each Security Agreement, each Pledge
Agreement, each Collateral Assignment of Patents, each Collateral Assignment of
Trademarks, and each other document pursuant to which any Lien or security
interest is granted by any Credit Party to the Collateral Agent as security for
any of the Obligations.
"STANDARD PERMITTED LIENS" shall mean the following:
(i) Liens for taxes not yet delinquent or Liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of the
Company) have been established;
(ii) Liens in respect of property or assets imposed by law
which were incurred in the ordinary course of business, such as
carriers', warehousemen's, materialmen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, which do not
in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of the Borrower or any Subsidiary;
(iii) Liens created by this Agreement or the other Credit
Documents;
(iv) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under section
10.1(g);
(v) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; and mechanic's Liens, carrier's Liens, and other Liens to
secure the performance of tenders, statutory obligations, contract
bids, government contracts, performance and return-of-money bonds and
other similar obligations, incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed
money), whether pursuant to statutory requirements, common law or
consensual arrangements;
(vi) Leases or subleases granted to others not interfering
in any material respect with the business of the Borrower or any of its
Subsidiaries and any interest or title of a lessor under any lease not
in violation of this Agreement;
(vii) easements, rights-of-way, zoning or other
restrictions, charges, encumbrances, defects in title, prior rights of
other Persons, and obligations contained in similar instruments, in
each case which do not involve, and are not likely to involve at any
future time, either individually or in the aggregate, (A) a
17
substantial and prolonged interruption or disruption of the business
activities of the Borrower and its Subsidiaries considered as an
entirety, or (B) a Material Adverse Effect;
(viii) Liens arising from the rights of lessors under leases
(including financing statements regarding property subject to lease)
not in violation of the requirements of this Agreement, PROVIDED that
such Liens are only in respect of the property subject to, and secure
only, the respective lease (and any other lease with the same or an
affiliated lessor); and
(ix) rights of consignors of goods purchased or possessed
by the Borrower or any of its Subsidiaries for inclusion in their
inventory, whether or not such consignment is perfected by the filing
of any financing statement under the UCC.
"STATED AMOUNT" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions or other
requirements for drawing could then be met).
"SUBSIDIARY" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary which is a party to
the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" means any subsidiary guaranty substantially in
the form of Exhibit G executed and delivered in connection herewith, as the same
may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness which has been
subordinated to the Obligations in such manner and to such extent as the
Administrative Agent (acting on instructions from the Required Lenders) may
require.
"SWING LINE BORROWING" shall mean the incurrence of a single Type of
Swing Line Loan from the Swing Line Lender on a given date.
"SWING LINE CAP" shall mean $5,000,000.
"SWING LINE COMMITMENT" shall mean, with respect to the Swing Line
Lender, the amount set forth opposite such Lender's name in Annex I as its
"Swing Line Commitment" as the same may be reduced from time to time pursuant to
section 4.2, 4.3 and/or 10.2 or adjusted from time to time as a result of
assignments to or from the Swing Line Lender pursuant to section 12.4.
"SWING LINE EXPOSURE" shall mean, with respect to any Lender at any
time, such Lender's obligation to refund or purchase a participation equal to,
its Revolving Facility Percentage of the aggregate Swing Line Loans outstanding
advanced to the Borrower.
"SWING LINE FACILITY" shall mean the credit facility evidenced by the
Swing Line Commitment.
"SWING LINE LENDER" shall mean the Lender indicated in Annex I hereto
as having the "Swing Line Commitment" and shall include any other single Lender
to whom the Swing Line Lender has transferred its entire Swing Line Commitment
and any Swing Line Loans.
"SWING LINE LOAN" shall have the meaning provided in section 2.1(b).
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"SWING LINE NOTE" shall have the meaning provided in section 2.5(a).
"SYNTHETIC LEASE" shall mean any lease (i) which is accounted for by
the lessee as an Operating Lease, and (ii) under which the lessee is intended to
be the "owner" of the leased property for Federal income tax purposes.
"TAXES" shall have the meaning provided in section 5.4.
"TESTING PERIOD" shall mean for any determination a single period
consisting of the four consecutive fiscal quarters of the Borrower then last
ended (whether or not such quarters are all within the same fiscal year), EXCEPT
that if a particular provision of this Agreement indicates that a Testing Period
shall be of a different specified duration, such Testing Period shall consist of
the particular fiscal quarter or quarters then last ended which are so indicated
in such provision.
"TOTAL COMMITMENT" shall mean the sum of the Commitments of the
Lenders.
"TOTAL REVOLVING COMMITMENT" shall mean the Revolving Commitments of
the Lenders.
"TYPE" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Prime Rate Loan, a Eurocurrency Loan
or a Money Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any,
by which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
"UNITED STATES" and "U.S." shall each mean the United States of
America.
"UNPAID DRAWING" shall have the meaning provided in section 3.3(a).
"UNUTILIZED REVOLVING COMMITMENT" shall mean, with respect to any
Lender and its Revolving Commitment, at any time, the excess of (i) such
Lender's Revolving Commitment at such time over (ii) the sum of (x) the
principal amount of Revolving Loans made by such Lender and outstanding at such
time, and (y) such Lender's Revolving Facility Percentage of Letter of Credit
Outstandings at such time.
"UNUTILIZED SWING LINE COMMITMENT" shall mean, at any time, the excess
of (i) the Swing Line Commitment at such time over (ii) the aggregate principal
amount of all Swing Line Loans then outstanding.
"UNUTILIZED TOTAL COMMITMENT" shall mean, at any time, the excess of
(i) the Total Commitment at such time over (ii) the sum of (x) the aggregate
principal amount of all Loans then outstanding plus (y) the aggregate Letter of
Credit Outstandings at such time.
"UNUTILIZED TOTAL REVOLVING COMMITMENT" shall mean, at any time, the
excess of (i) the Total Revolving Commitment at such time over (ii) the sum of
(x) the aggregate principal amount of all Revolving Loans then outstanding plus
(y) the aggregate Letter of Credit Outstandings at such time.
"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the Borrower at
least 95% of whose capital stock, equity interests and partnership interests,
other than director's qualifying shares or similar interests, are owned directly
or indirectly by the Borrower.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
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1.2. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
1.3. ACCOUNTING TERMS. Except as otherwise specifically provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; PROVIDED that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision of section 8 or 9 hereof to eliminate the effect of
any change occurring after the Effective Date in GAAP or in the application
thereof to such provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders request an amendment to any such provision hereof for
such purposes), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance with the requirements of this
Agreement.
1.4. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to sections, Annexes
and Exhibits shall be construed to refer to sections of, and Annexes and
Exhibits to, this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all real
property, tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, and interests in any of the foregoing.
1.5. PRO FORMA CALCULATIONS. Notwithstanding anything to the
contrary in this Agreement, with respect to any period during which any
Permitted Acquisition or any Asset Sale occurs as permitted pursuant to the
terms hereof, for purposes of determining compliance with the covenants set
forth in sections 9.7, 9.8 and 9.9, such compliance shall be determined on the
basis of Pro Forma Compliance and, accordingly, Consolidated EBITDA,
Consolidated Total Debt, the Fixed Charge Coverage Ratio and the Interest
Coverage Ratio shall be calculated with respect to such periods on a Pro Forma
Basis. For the avoidance of doubt, with respect to any period ending on or prior
to September 30, 2003, compliance with the covenants set forth in sections 9.7,
9.8 and 9.9 will be calculated on a Pro Forma Basis to give effect to the
disposition of the precious metals business.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. COMMITMENTS FOR LOANS. Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees to make a loan or
loans (each a "LOAN" and, collectively, the "LOANS") to the Borrower, which
Loans shall be drawn, to the extent such Lender has a commitment under a
Facility for the Borrower, under the applicable Facility, as set forth below:
(a) REVOLVING FACILITY. Loans to the Borrower under the Revolving
Facility (each a "REVOLVING LOAN" and, collectively, the "REVOLVING LOANS"): (i)
may be incurred by the Borrower at any time and from time to time on and after
the Closing Date and prior to the date the Total Revolving Commitment expires or
is terminated; (ii) except as otherwise provided, may, at the option of the
Borrower be incurred and maintained as, or Converted into, Revolving Loans which
are Prime Rate Loans or Eurocurrency Loans, PROVIDED that all Revolving Loans
made as part of the same Revolving Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same Type; (iii)
may be repaid or prepaid and reborrowed in accordance with the provisions
hereof; (iv) may only be made if after giving effect thereto the Unutilized
Total Revolving Commitment exceeds the outstanding Swing Line Loans; and (v)
shall not exceed for any Lender at any time outstanding that aggregate principal
amount which, when added to the sum of (1) such Lender's Swing Line Exposure
plus (2) the product at
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such time of (A) such Lender's Revolving Facility Percentage, TIMES (B) the
aggregate Letter of Credit Outstandings, equals the Revolving Commitment of such
Lender at such time.
(b) SWING LINE FACILITY. Loans to the Borrower under the Swing
Line Facility (each a "SWING LINE LOAN" and, collectively, the "SWING LINE
LOANS"): (i) shall be made only by the Swing Line Lender; (ii) may be made at
any time and from time to time on and after the Closing Date and prior to the
earlier of (x) the date the Swing Line Commitment expires or is terminated, or
(y) the date the Total Revolving Commitment expires or is terminated; (iii)
shall be made only in Dollars; (iv) shall have a maturity of no longer than one
Business Day; (v) may be incurred as either a Prime Rate Loan or a Money Market
Rate Loan; (vi) may be repaid or prepaid and reborrowed in accordance with the
provisions hereof; (vii) may only be made if after giving effect thereto the
Unutilized Total Revolving Commitment exceeds the outstanding Swing Line Loans;
and (viii) shall not exceed for the Swing Line Lender at any time outstanding
its Swing Line Commitment at such time; and (ix) shall not exceed in the
aggregate, the Swing Line Cap.
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by the Borrower shall not be less
than the Minimum Borrowing Amount. More than one Borrowing may be incurred by
the Borrower on any day, PROVIDED that (i) if there are two or more Borrowings
on a single day by the Borrower which consist of Eurocurrency Loans, each such
Borrowing shall have a different initial Interest Period, (ii) only one
Borrowing may be made under the Swing Line Facility on any day, and (iii) at no
time shall there be more than 8 Borrowings of Eurocurrency Loans outstanding
hereunder.
(b) All Borrowings under the Revolving Facility shall be made by
the Lenders having Revolving Commitments PRO RATA on the basis of their
respective Revolving Commitments. It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its Commitment hereunder.
2.3. PROCEDURES FOR BORROWING AND DISBURSEMENT OF FUNDS. (a) NOTICE
OF BORROWING. Whenever the Borrower desires to incur Loans, it shall give the
Administrative Agent at its Notice Office,
(A) BORROWINGS OF PRIME RATE LOANS UNDER THE REVOLVING
FACILITY: in the case of any Borrowing under the Revolving Facility of
Prime Rate Loans to be made hereunder, prior to 12:00 noon (local time
at its Notice Office), at least one Business Day's prior written or
telephonic notice thereof (in the case of telephonic notice, promptly
confirmed in writing if so requested by the Administrative Agent); or
(B) BORROWINGS OF EUROCURRENCY LOANS UNDER THE REVOLVING
FACILITY: in the case of any Borrowing under the Revolving Facility of
Eurocurrency Loans to be made hereunder, prior to 12:00 noon (local
time at its Notice Office), at least three Business Days' prior written
or telephonic notice thereof (in the case of telephonic notice,
promptly confirmed in writing if so requested by the Administrative
Agent); or
(D) BORROWINGS UNDER THE SWING LINE FACILITY: in the case
of any Borrowing under the Swing Line Facility of (1) a Prime Rate Loan
to be made hereunder, prior to 1:00 P.M. (local time at its Notice
Office), at least same Business Day's prior written or telephonic
notice thereof (in the case of telephonic notice, promptly confirmed in
writing if so requested by the Administrative Agent); or (2) a Money
Market Rate Loan to be made hereunder, if the Administrative Agent
shall have furnished the Borrower with a Quoted Rate therefor, prior to
1:00 P.M. (local time at its Notice Office), at least same Business
Day's prior written or telephonic notice thereof (in the case of
telephonic notice, promptly confirmed in writing if so requested by the
Administrative Agent), which proposed Borrowing shall be within such
period as the Administrative Agent shall have specified for such Quoted
Rate.
Each such notice (each such notice, a "NOTICE OF BORROWING") shall (if requested
by the Administrative Agent to be confirmed in writing), be substantially in the
form of Exhibit B-1, and in any event shall be irrevocable and shall specify:
(i) the aggregate principal amount of the Loans to be made pursuant to such
Borrowing; (ii) the date of the Borrowing (which shall be a Business Day); (iii)
whether the Borrowing shall consist of Prime Rate Loans,
21
Eurocurrency Loans or a Money Market Rate Loan; (iv) if the Borrowing consists
of a Swing Line Loan which is a Money Market Rate Loan, the Quoted Rate
therefor; (v) if the requested Borrowing consists of Eurocurrency Loans, the
Interest Period to be initially applicable thereto. The stated maturity date of
any Swing Line Loan shall be the Business Day which immediately follows the date
such Swing Line Loan is made, subject to any reborrowing thereof as provided in
section 2.1(b). The Administrative Agent shall promptly give each Lender written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Revolving Borrowing, of such Lender's proportionate share thereof and of the
other matters covered by the Notice of Borrowing relating thereto.
(b) BORROWINGS OF MONEY MARKET RATE LOANS. Whenever the Borrower
proposes to submit a Notice of Borrowing with respect to a Swing Line Loan which
will be a Money Market Rate Loan, it will prior to submitting such Notice of
Borrowing notify the Administrative Agent of its intention and request the
Administrative Agent to quote a fixed or floating interest rate (the "QUOTED
RATE") to be applicable thereto prior to the proposed maturity thereof. The
Administrative Agent will immediately so notify the Swing Line Lender, and if
the Swing Line Lender is agreeable to a particular interest rate for the
proposed Money Market Rate Loan if such Loan is made on or prior to a specified
date, the Administrative Agent shall quote such interest rate to the Borrower as
the Quoted Rate applicable to such proposed Money Market Rate Loan if made on or
before such specified date for a maturity of one Business Day as so proposed by
the Borrower. The Swing Line Lender contemplates that any Quoted Rate will be a
rate of interest which reflects a margin corresponding to (or greater than) the
Applicable Eurocurrency Margin in effect at the time of quotation of any Quoted
Rate over the then prevailing fully absorbed average cost of funds of the Swing
Line Lender, Federal Funds Effective Rate, commercial paper, call money,
overnite repurchase or other commonly quoted interest rate, in each case as
selected by the Swing Line Lender. Nothing herein shall be deemed to permit any
Lender other than the Swing Line Lender any right of approval with respect to a
Quoted Rate.
(c) ACTIONS BY ADMINISTRATIVE AGENT ON TELEPHONE NOTICE. Without
in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice permitted to be given hereunder, the Administrative Agent may
act prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent in good faith to be
from an Authorized Officer of the Borrower entitled to give telephonic notices
under this Agreement on behalf of the Borrower. In each such case, the
Administrative Agent's record of the terms of such telephonic notice shall be
conclusive absent manifest error.
(d) DISBURSEMENT OF FUNDS. (i) No later than 2:00 P.M. (local time
at the Payment Office) on the date specified in each Notice of Borrowing, each
Lender will make available its PRO RATA share, if any, of each Borrowing
requested to be made on such date in the manner provided below. All amounts
shall be made available to the Administrative Agent in Dollars and in
immediately available funds at the Payment Office and the Administrative Agent
promptly will make available to the Borrower by depositing to its account at the
Payment Office the aggregate of the amounts so made available in the type of
funds received.
(ii) Unless the Administrative Agent shall have been notified by
any Lender prior to the date of Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or
Borrowings to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender
and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate, or (y) if paid by the Borrower, the
then applicable rate of interest, calculated in accordance with section 2.7, for
the respective Loans (but without any requirement to pay any amounts in respect
thereof pursuant to section 2.10).
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(iii) Nothing in this section 2.3(d) and no subsequent termination
of the Commitments pursuant to section 4.2 or 4.3 shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment hereunder and in existence
from time to time or to prejudice any rights which the Borrower may have against
any Lender as a result of any default by such Lender hereunder.
2.4. REFUNDING OF, OR PARTICIPATION IN, SWING LINE LOANS. (a) If
any Event of Default exists, the Swing Line Lender may, in its sole and absolute
discretion, direct that the Swing Line Loans owing to it be refunded by
delivering a notice to such effect to the Administrative Agent, specifying the
aggregate principal amount thereof (a "NOTICE OF SWING LINE REFUNDING").
Promptly upon receipt of a Notice of Swing Line Refunding, the Administrative
Agent shall give notice of the contents thereof to the Lenders and, unless an
Event of Default specified in section 10.1(h) in respect of the Borrower has
occurred, also to the Company. Each such Notice of Swing Line Refunding shall be
deemed to constitute delivery by the Borrower of a Notice of Borrowing
requesting Revolving Loans and consisting of Prime Rate Loans in the amount of
the Swing Line Loans to which it relates. Each Lender with a Revolving
Commitment (including the Swing Line Lender in its capacity as a Lender) hereby
unconditionally agrees (notwithstanding that any of the conditions specified in
section 6.2 hereof or elsewhere in this Agreement shall not have been satisfied,
but subject to the provisions of paragraph (b) below) to make a Revolving Loan
to the Borrower in an amount equal to such Lender's Revolving Facility
Percentage of the aggregate Dollar amount of the Swing Line Loans to which such
Notice of Swing Line Refunding relates. Each such Lender shall make the amount
of such Revolving Loan available to the Administrative Agent in immediately
available funds at the Payment Office not later than 2:00 P.M. (local time at
the Payment Office), if such notice is received by such Lender prior to 11:00
A.M. (local time at its Domestic Lending Office), or not later than 2:00 P.M.
(local time at the Payment Office) on the next Business Day, if such notice is
received by such Lender after such time. The proceeds of such Revolving Loans
shall be made immediately available to the Swing Line Lender and applied by it
to repay the principal amount of the Swing Line Loans to which such Notice of
Swing Line Refunding related.
(b) If prior to the time a Revolving Loan would otherwise have
been made as provided above as a consequence of a Notice of Swing Line
Refunding, any of the events specified in section 10.1(h) shall have occurred in
respect of the Borrower or one or more of the Lenders with Revolving Commitments
shall determine that it is legally prohibited from making a Revolving Loan under
such circumstances, each Lender (other than the Swing Line Lender), or each
Lender (other than the Swing Line Lender) so prohibited, as the case may be,
shall, on the date such Revolving Loan would have been made by it (the "PURCHASE
DATE"), purchase an undivided participating interest in the outstanding Swing
Line Loans to which such Notice of Swing Line Refunding related, in an amount
(the "SWING LINE PARTICIPATION AMOUNT") equal to such Lender's Revolving
Facility Percentage of such Swing Line Loans. On the Purchase Date, each such
Lender or each such Lender so prohibited, as the case may be, shall pay to the
Swing Line Lender in immediately available funds, such Lender's Swing Line
Participation Amount, and promptly upon receipt thereof the Swing Line Lender
shall, if requested by such other Lender, deliver to such Lender a participation
certificate, dated the date of the Swing Line Lender's receipt of the funds
from, and evidencing such Lender's participating interest in such Swing Line
Loans and its Swing Line Participation Amount in respect thereof. If any amount
required to be paid by a Lender to the Swing Line Lender pursuant to the above
provisions in respect of any Swing Line Participation Amount is not paid on the
date such payment is due, such Lender shall pay to the Swing Line Lender on
demand interest on the amount not so paid at the overnight Federal Funds
Effective Rate from the due date until such amount is paid in full.
(c) Whenever, at any time after the Swing Line Lender has received
from any other Lender such Lender's Swing Line Participation Amount, the Swing
Line Lender receives any payment from or on behalf of the Borrower on account of
the related Swing Line Loans, the Swing Line Lender will promptly distribute to
such Lender its Revolving Facility Percentage of such payment on account of its
Swing Line Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded); PROVIDED, HOWEVER, that in the event such
payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(d) Each Lender's obligation to make Revolving Loans and/or to
purchase participations in connection with a Notice of Swing Line Refunding
(which shall in all events be within such Lender's Unutilized
23
Revolving Commitment, taking into account all outstanding participations in
connection with Swing Line Refundings) shall be subject to the conditions that:
(i) such Lender shall have received a Notice of Swing
Line Refunding complying with the provisions hereof, and
(ii) at the time the Swing Line Loans which are the
subject of such Notice of Swing Line Refunding were made, the Swing
Line Lender had no actual written notice from another Lender notifying
the Swing Line Lender that an Event of Default had occurred and was
continuing under this Agreement and that any further increases in the
aggregate principal amount of Swing Line Loans would not be entitled to
the benefit of the participation arrangements provided in this section
2.4,
but otherwise shall be absolute and unconditional, shall be solely for the
benefit of the Swing Line Lender and shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against any other Lender, any
Credit Party, or any other Person, or any Credit Party may have against any
Lender or other Person, as the case may be, for any reason whatsoever; (B) the
occurrence or continuance of a Default or Event of Default; (C) any event or
circumstance involving a Material Adverse Effect upon the Borrower; (D) any
breach of any Credit Document by any party thereto; or (E) any other
circumstance, happening or event, whether or not similar to any of the
foregoing.
2.5. NOTES; LOAN ACCOUNTS (a) FORMS OF NOTES. The obligation of the
Borrower to pay the principal of, and interest on, the Loans made to it by each
Lender shall be evidenced hereunder and (i) if a Revolving Loan, and if so
requested by any Lender with a Revolving Commitment, by a promissory note of the
Borrower substantially in the form of Exhibit A-1 with blanks appropriately
completed in conformity herewith (each a "REVOLVING NOTE" and, collectively, the
"REVOLVING NOTES"), and (ii) if a Swing Line Loan, by a promissory note of the
Borrower substantially in the form of Exhibit A-2 with blanks appropriately
completed in conformity herewith (the "SWING LINE NOTE").
(b) REVOLVING NOTES. The Revolving Note issued by the Borrower to
a Lender with a Revolving Commitment shall: (i) be executed only by the
Borrower; (ii) be payable to the order of such Lender and be dated on or prior
to the Closing Date; (iii) be payable in the principal amount of Revolving Loans
evidenced thereby; (iv) mature on the Maturity Date; (v) bear interest as
provided in section 2.7 in respect of the Prime Rate Loans or Eurocurrency
Loans, as the case may be, evidenced thereby; (vi) be subject to mandatory
prepayment as provided in section 5.2; and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) SWING LINE NOTE. The Swing Line Revolving Note issued to the
Swing Line Lender shall: (i) be executed by the Borrower; (ii) be payable to the
order of such Lender and be dated on or prior to the date the first Loan
evidenced thereby is made; (iii) be in a stated principal amount equal to the
Swing Line Commitment of such Lender and be payable in the principal amount of
Swing Line Loans evidenced thereby; (iv) mature as to any Swing Line Loan
evidenced thereby on the first Business Day following the date such Swing Line
Loan was made; (v) bear interest as provided in section 2.7 in respect of the
Prime Rate Loans or Money Market Rate Loans, as the case may be, evidenced
thereby; (vi) be subject to mandatory prepayment as provided in section 5.2; and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) LOAN ACCOUNTS OF LENDERS. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(e) LOAN ACCOUNTS OF ADMINISTRATIVE AGENT. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Type thereof, and the particular Facility under which
such Loan was made, (ii) the Interest Period and applicable interest rate if
such Loan is a Eurocurrency Loan, (iii) the maturity date and interest rate if
such Loan is a Swing Line Loan, (iv) the amount of any principal due and payable
or to become due and payable from the Borrower to each Lender hereunder, and (v)
the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
24
(f) EFFECT OF LOAN ACCOUNTS, ETC. The entries made in the accounts
maintained pursuant to section 2.5(d) and (e) shall be PRIMA FACIE evidence of
the existence and amounts of payments and amounts of the obligations recorded
therein; PROVIDED, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay or prepay the Loans in accordance with the
terms of this Agreement.
(g) ENDORSEMENTS OF AMOUNTS ON NOTES PRIOR TO TRANSFER. Each
Lender will, prior to any transfer of any of the Notes issued to it by the
Borrower, endorse on the reverse side thereof or the grid attached thereto the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation shall not affect the Borrower's
obligations in respect of such Loans.
2.6. VOLUNTARY CONVERSIONS OF REVOLVING LOANS.
The Borrower shall have the option to Convert on any Business Day all
or a portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of its Revolving Loans of one Type owing by it into
a Revolving Borrowing or Revolving Borrowings of another Type of Loans, PROVIDED
that:
(i) any Conversion of Eurocurrency Loans into Prime Rate
Loans shall be made on, and only on, the last day of an Interest Period
for such Eurocurrency Loans;
(ii) Prime Rate Loans may only be Converted into
Eurocurrency Loans if no Default under section 10.1(a) or Event of
Default is in existence on the date of the Conversion unless the
Required Lenders otherwise agree;
(iii) Prime Rate Loans may not be Converted into
Eurocurrency Loans during any period when such Conversion is not
permitted under section 2.9; and
(iv) Borrowings of Eurocurrency Loans resulting from this
section 2.6 shall conform to the requirements of section 2.2.
Each such Conversion shall be effected by the Borrower giving the Administrative
Agent at its Notice Office, prior to 12:00 noon (local time at such Notice
Office), at least three Business Days', in the case of Conversion into a
Eurocurrency Loans (or prior to 12:00 noon (local time at such Notice Office)
same Business Day's, in the case of a Conversion into Prime Rate Loans), prior
written notice (or telephonic notice promptly confirmed in writing if so
requested by the Administrative Agent) (each a "NOTICE OF CONVERSION"),
substantially in the form of Exhibit B-2, specifying the Revolving Loans to be
so Converted, the Type of Loans to be Converted into and, if to be Converted
into a Borrowing of Eurocurrency Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed Conversion. For the avoidance of doubt, the
prepayment or repayment of any Revolving Loans out of the proceeds of other
Revolving Loans by the Borrower is not considered a Conversion of Revolving
Loans into other Revolving Loans.
2.7. INTEREST. (a) INTEREST ON PRIME RATE LOANS. During such
periods as a Revolving Loan is a Prime Rate Loan, it shall bear interest at a
fluctuating rate per annum which shall at all times be equal to the Prime Rate
in effect from time to time PLUS the Applicable Prime Rate Margin in effect from
time to time for such Revolving Loan.
(b) INTEREST ON EUROCURRENCY LOANS. During such periods as a
Revolving Loan is a Eurocurrency Loan, it shall bear interest at a rate per
annum which shall at all times during an Interest Period therefor be the
relevant Eurocurrency Rate for such Eurocurrency Loan for such Interest Period
PLUS the Applicable Eurocurrency Margin in effect from time to time for such
Revolving Loan.
(c) INTEREST ON MONEY MARKET RATE LOANS. During such periods as a
Swing Line Loan is a Money Market Rate Loan, it shall bear interest until
maturity (whether by acceleration or otherwise) at the rate per annum which
shall be equal to the Quoted Rate therefor.
25
(d) DEFAULT INTEREST. Notwithstanding the above provisions, if a
Default under section 10.1(a) or Event of Default is in existence, all
outstanding amounts of principal and, to the extent permitted by law, all
overdue interest, in respect of each Loan shall bear interest, payable on
demand, at a rate per annum equal to 2% per annum above the interest rate which
is or would be applicable from time to time pursuant to section 2.7(a). If any
amount (other than the principal of and interest on the Loans) payable by the
Borrower under the Credit Documents is not paid when due, such amount shall bear
interest, payable on demand, at a rate per annum equal to 2% per annum above the
interest rate which is or would be applicable from time to time pursuant to
section 2.7(a).
(e) ACCRUAL AND PAYMENT OF INTEREST. Interest shall accrue from
and including the date of any Borrowing to but excluding the date of any
prepayment or repayment thereof and shall be payable:
(i) in respect of any Swing Line Loan, monthly in arrears
on the first Business Day of the next succeeding month;
(ii) in respect of each Prime Rate Loan under the
Revolving Facility, quarterly in arrears on each April 1, July 1,
October 1 and January 1, and
(iii) in respect of each Eurocurrency Loan under the
Revolving Facility, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three
months, on the dates which are successively three months after the
commencement of such Interest Period, and
(iv) in the case of any Loan under any Facility, on any
repayment, prepayment or Conversion (on the amount repaid, prepaid or
Converted), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
(f) COMPUTATIONS OF INTEREST. All computations of interest
hereunder shall be made in accordance with section 12.7(b).
(g) INTEREST RATE MARGINS. As used herein the terms "APPLICABLE
PRIME RATE MARGIN", "APPLICABLE EUROCURRENCY MARGIN" and "APPLICABLE COMMITMENT
FEE" shall mean the particular rate per annum determined by the Administrative
Agent in accordance with the Pricing Grid Table which appears below, based on
the Company's ratio of Consolidated Total Debt to Consolidated EBITDA, as
computed in accordance with section 9.7 hereof, and such Pricing Grid Table, and
the following provisions:
(A) Initially, until changed hereunder in
accordance with the following provisions, the Applicable Prime
Rate Margin for Revolving Loans and Swing Line Loans will be
125 basis points per annum, the Applicable Eurocurrency Margin
for Revolving Loans will be 300 basis points per annum, and
the Applicable Commitment Fee shall be 50 basis points per
annum.
(B) Commencing with the fiscal quarter of the
Borrower ended on or nearest to December 31, 2003, and
continuing with each fiscal quarter thereafter, the
Administrative Agent will determine the Applicable Prime Rate
Margin or Applicable Eurocurrency Margin for any Revolving
Loan or Swing Line Loan and the Applicable Commitment Fee in
accordance with the Pricing Grid Table, based on the Company's
ratio of (x) Consolidated Total Debt as of the end of the
fiscal quarter, to (y) Consolidated EBITDA for the Testing
Period ended on the last day of the fiscal quarter, as
computed in accordance with section 9.7 hereof, and identified
in such Pricing Grid Table. Changes in the Applicable Prime
Rate Margin, Applicable Eurocurrency Margin or Applicable
Commitment Fee based upon changes in such ratio shall become
effective on the first day of the month following the receipt
by the Administrative Agent pursuant to section 8.1(a) or (b)
of the financial statements of the Borrower, accompanied by
the certificate and calculations referred to in section
8.1(c), demonstrating the computation of such ratio, based
upon the ratio in effect at the end of the applicable period
covered (in whole or in part) by such financial statements.
26
(C) Notwithstanding the above provisions, during
any period when (1) the Borrower has failed to timely deliver
its consolidated financial statements referred to in section
8.1(a) or (b), accompanied by the certificate and calculations
referred to in section 8.1(c), (2) a Default under section
10.1(a) has occurred and is continuing, or (3) an Event of
Default has occurred and is continuing, the Applicable Prime
Rate Margin and the Applicable Eurocurrency Margin for
Revolving Loans and Swing Line Loans and the Applicable
Commitment Fee shall be the highest rate per annum indicated
therefor in the Pricing Grid Table, regardless of the
Borrower's ratio of Consolidated Total Debt to Consolidated
EBITDA at such time.
(D) Any changes in the Applicable Prime Rate
Margin or Applicable Eurocurrency Margin for Revolving Loans
or Swing Line Loans and the Applicable Commitment Fee shall be
determined by the Administrative Agent in accordance with the
above provisions and the Administrative Agent will promptly
provide notice of such determinations to the Borrower and the
Lenders. Any such determination by the Administrative Agent
pursuant to this section 2.7(g) shall be conclusive and
binding absent manifest error.
PRICING GRID TABLE
FOR
REVOLVING LOANS AND SWING LINE LOANS
(EXPRESSED IN BASIS POINTS)
--------------------------------------------------------------------------------------------------------------------
RATIO OF
CONSOLIDATED TOTAL DEBT APPLICABLE APPLICABLE
TO APPLICABLE PRIME EUROCURRENCY COMMITMENT FEE
CONSOLIDATED EBITDA RATE MARGIN MARGIN RATE
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than 4.00 125 300 50
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than 3.50 and less than 100 275 50
4.00
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than 3.00 and less than 75 250 50
3.50
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than 2.50 and less than 50 225 37.5
3.00
--------------------------------------------------------------------------------------------------------------------
Less than 2.50 25 200 37.5
--------------------------------------------------------------------------------------------------------------------
(h) INFORMATION AS TO INTEREST RATES. The Administrative Agent
upon determining the interest rate for any Borrowing shall promptly notify the
Borrower and the Lenders thereof. If the Administrative Agent is unable to
determine the Eurocurrency Rate for any Borrowing of Eurocurrency Loans based on
the quotation service referred to in clause (i) of the definition of the term
Eurocurrency Rate, it will promptly so notify the Reference Banks and each
Reference Bank will furnish the Administrative Agent timely information for the
purpose of determining the Eurocurrency Rate for such Borrowing. If any one or
more of the Reference Banks shall not timely furnish such information, the
Administrative Agent shall determine the Eurocurrency Rate for such Borrowing on
the basis of timely information furnished by the remaining Reference Banks.
2.8. SELECTION AND CONTINUATION OF INTEREST PERIODS. (a) The
Borrower shall have the right
27
(x) at the time it gives a Notice of Borrowing or Notice
of Conversion in respect of the making of, or Conversion into, a
Borrowing of Eurocurrency Loans, to select in such Notice the Interest
Period to be applicable to such Borrowing, and
(y) prior to 12:00 noon (local time at the Notice Office)
on the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing under the Revolving Facility of Eurocurrency
Loans, to elect by giving the Administrative Agent written or
telephonic notice (in the case of telephonic notice, promptly confirmed
in writing if so requested by the Administrative Agent) to Continue all
or the Minimum Borrowing Amount of the principal amount of such
Revolving Loans as one or more Borrowings of Eurocurrency Loans and to
select the Interest Period to be applicable to any such Borrowing (any
such notice, a "NOTICE OF CONTINUATION"),
which Interest Period shall, at the option of the Borrower, be a one, two, three
or six month period; PROVIDED, that notwithstanding anything to the contrary
contained above, the Borrower's right to select an Interest Period or to effect
any Continuation shall be subject to the applicable provisions of section 2.9
and to the following:
(i) the initial Interest Period for any Borrowing of
Eurocurrency Loans shall commence on the date of such Borrowing (the
date of a Borrowing resulting from a Conversion or Continuation shall
be the date of such Conversion or Continuation) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) no Interest Period for any Eurocurrency Loan may be
selected which would end after the Maturity Date applicable thereto;
(v) each Borrowing resulting from a Continuation shall be
in at least the Minimum Borrowing Amount applicable thereto; and
(vi) no Interest Period may be elected at any time when a
Default under section 10.1(a) or an Event of Default is then in
existence unless the Required Lenders otherwise agree.
(b) If upon the expiration of any Interest Period the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurocurrency Loans as provided above, in the case of any
such Eurocurrency Loans, the Borrower shall be deemed to have elected to convert
such Borrowing to Prime Rate Loans effective as of the expiration date of such
current Interest Period.
2.9. INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate for
Eurocurrency Loans for any Interest Period that, by reason of any
changes arising after the Effective Date affecting the interbank
Eurocurrency market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurocurrency Rate; or
28
(ii) at any time, that such Lender shall incur increased
costs or reductions in the amounts received or receivable hereunder in
an amount which such Lender deems material with respect to any
Eurocurrency Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a
change in the rate of taxes or similar charges) because of (x) any
change since the Effective Date in any applicable law, governmental
rule, regulation, guideline, order or request (whether or not having
the force of law), or in the interpretation or administration thereof
and including the introduction of any new law or governmental rule,
regulation, guideline, order or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves includable in the Eurocurrency Rate pursuant
to the definition thereof) and/or (y) other circumstances adversely
affecting the interbank Eurocurrency market or the position of such
Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurocurrency Loan has become unlawful by compliance by such Lender in
good faith with any change since the Effective Date in any law,
governmental rule, regulation, guideline or order, or the
interpretation or application thereof, or would conflict with any
thereof not having the force of law but with which such Lender
customarily complies or has become impracticable as a result of a
contingency occurring after the Effective Date which materially
adversely affects the interbank Eurocurrency market;
THEN, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on or promptly following such date or time
and (y) within 10 Business Days of the date on which such event no longer exists
give notice (by telephone confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other applicable Lenders).
Thereafter (x) in the case of clause (i) above, Eurocurrency Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the applicable Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing,
Notice of Conversion or Notice of Continuation given by the Borrower or with
respect to Eurocurrency Loans which have not yet been incurred, Converted or
Continued shall be deemed rescinded or, in the case of a Notice of Borrowing,
shall, at the option of the Borrower, be deemed converted into a Notice of
Borrowing for Prime Rate Loans to be made on the date of Borrowing contained in
such Notice of Borrowing, (y) in the case of clause (ii) above, the Borrower
shall pay to such Lender, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender shall determine) as shall be required to
compensate such Lender, for such increased costs or reductions in amounts
receivable hereunder (a written notice as to the additional amounts owed to such
Lender, showing the basis for the calculation thereof, which basis must be
reasonable, submitted to the Borrower by such Lender shall, absent manifest
error, be final and conclusive and binding upon all parties hereto) and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in section 2.9(b) as promptly as possible and, in any event, within
the time period required by law.
(b) At any time that any Eurocurrency Loan is affected by the
circumstances described in section 2.9(a)(ii) or (iii), the Borrower may (and in
the case of a Eurocurrency Loan affected pursuant to section 2.9(a)(iii), shall)
either (i) if the affected Eurocurrency Loan is then being made pursuant to a
Borrowing, by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the Borrower was notified by
a Lender pursuant to section 2.9(a)(ii) or (iii), cancel said Borrowing, convert
the related Notice of Borrowing into one requesting a Borrowing of Prime Rate
Loans or require the affected Lender to make its requested Revolving Loan as a
Prime Rate Loan, or (ii) if the affected Eurocurrency Loan is then outstanding,
upon at least one Business Day's notice to the Administrative Agent, require the
affected Lender to Convert each such Eurocurrency Loan into a Prime Rate Loan,
PROVIDED that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this section 2.9(b).
(c) If any Lender shall have determined that after the Effective
Date, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Lender or its parent corporation with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank, or comparable agency, in each case made
subsequent to the Effective Date, has or would have the effect of reducing by an
amount reasonably deemed by such Lender to be material the rate of return on
such Lender's or its parent
29
corporation's capital or assets as a consequence of such Lender's commitments or
obligations hereunder to a level below that which such Lender or its parent
corporation could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or its parent corporation's
policies with respect to capital adequacy), then from time to time, within 15
days after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or its parent corporation for such reduction. Each
Lender, upon determining in good faith that any additional amounts will be
payable pursuant to this section 2.9(c), will give prompt written notice thereof
to the Borrower, which notice shall set forth, in reasonable detail, the basis
of the calculation of such additional amounts, which basis must be reasonable,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this section
2.9(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything in this Agreement to the contrary,
(i) no Lender shall be entitled to compensation or payment or reimbursement of
other amounts under section 2.9, 3.5 or 5.4 for any amounts incurred or accruing
more than 270 days prior to the giving of notice to the Borrower of additional
costs or other amounts of the nature described in such sections, and (ii) no
Lender shall demand compensation for any reduction referred to in section 2.9(c)
or payment or reimbursement of other amounts under section 3.5 or 5.4 if it
shall not at the time be the general policy or practice of such Lender to demand
such compensation, payment or reimbursement in similar circumstances under
comparable provisions of other credit agreements.
2.10. BREAKAGE COMPENSATION. The Borrower shall compensate each
applicable Lender, upon its written request (which request shall set forth the
detailed basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the liquidation
or reemployment of deposits or other funds required by such Lender to fund its
Eurocurrency Loans or Money Market Rate Loans) which such Lender may sustain:
(i) if for any reason (other than a default by such Lender or the Administrative
Agent), (A) a Borrowing of Eurocurrency Loans does not occur on a date specified
therefor in a Notice of Borrowing, Notice of Conversion or Notice of
Continuation (whether or not rescinded or withdrawn by or on behalf of the
Borrower or deemed rescinded or withdrawn pursuant to section 2.9(a)), or (B) a
Borrowing of Money Market Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing; (ii) if any repayment, prepayment, Conversion or
Continuation of any of its Eurocurrency Loans occurs on a date which is not the
last day of an Interest Period applicable thereto; (iii) if any repayment or
prepayment of any Money Market Rate Loan occurs on a date which is not the
maturity date thereof; (iv) if any prepayment of any Eurocurrency Loans or Money
Market Rate Loans, as the case may be, is not made on any date specified in a
notice of prepayment given by or on behalf of the Borrower; (v) if the Borrower,
pursuant to section 2.11(b) hereof, requires any Lender (other than a Defaulting
Lender) to transfer its Eurocurrency Loans and/or Money Market Rate Loans, as
the case may be, on any date other than the last day of the Interest Period or
maturity date thereof; or (vi) as a consequence of (x) any other default by the
Borrower to repay its Eurocurrency Loans or Money Market Rate Loans, as the case
may be, when required by the terms of this Agreement or (y) an election made
pursuant to section 2.9(b). Such loss, cost, expense and liability to any Lender
shall be deemed to include an amount determined by such Lender to be the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the interest rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor or the then maturity
date thereof in the case of any Money Market Rate Loan (or, in the case of a
failure to effect a Borrowing, Conversion or Continuation, for the period that
would have been the Interest Period for such Loan or the period to maturity of
such Loan, in the case of a Money Market Rate Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for Dollar deposits of a comparable amount and period from other
banks in the London interbank market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
section shall be delivered to the Borrower and shall be conclusive absent
convincing evidence of error. The Borrower shall pay such Lender the amount
shown as due on any such request as soon as practicable but in any event within
30 days after receipt by the Borrower thereof.
2.11. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of section 2.9(a)(ii) or (iii), 2.9(c), 3.5 or 5.4 with respect to
such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
Applicable Lending Office for any Loans or Commitment affected by such event,
30
PROVIDED that such designation is made on such terms that such Lender and its
Applicable 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 any such section.
(b) If any Lender requests any compensation, reimbursement or
other payment under section 2.9(a)(ii) or (iii), 2.9(c) or 3.5 with respect to
such Lender, or if the Borrower is required to pay any additional amount to any
Lender or governmental authority pursuant to section 5.4, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with the restrictions
contained in section 12.4(b)), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); PROVIDED that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts,
including any breakage compensation under section 2.10 hereof), and (iii) in the
case of any such assignment resulting from a claim for compensation,
reimbursement or other payments required to be made under section 2.9(a)(ii) or
(iii), 2.9(c) or 3.5 with respect to such Lender, or resulting from any required
payments to any Lender or governmental authority pursuant to section 5.4, such
assignment will result in a reduction in such compensation, reimbursement or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(c) Nothing in this section 2.11 shall affect or postpone any of
the obligations of the Borrower or the right of any Lender provided in section
2.9, 3.5 or 5.4.
SECTION 3. LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Closing Date and prior to the
date that is 60 Business Days prior to the Revolving Maturity Date to issue, for
the account of the Borrower or any of its Subsidiaries (the Borrower or any such
Subsidiary, a "LETTER OF CREDIT OBLIGOR"), and in support of worker
compensation, liability insurance, releases of contract retention obligations,
contract performance guarantee requirements and other bonding obligations of the
Borrower or any such other Letter of Credit Obligor incurred in the ordinary
course of its business, and such other standby obligations of the Borrower and
the other Letter of Credit Obligors that are acceptable to the Letter of Credit
Issuer, and subject to and upon the terms and conditions herein set forth, such
Letter of Credit Issuer agrees to issue from time to time, irrevocable standby
letters of credit denominated and payable in Dollars in such form as may be
approved by such Letter of Credit Issuer and the Administrative Agent (each such
letter of credit (and each Existing Letter of Credit described in section
3.1(d)), a "LETTER OF CREDIT" and collectively, the "LETTERS OF CREDIT").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall
be issued, and the Stated Amount of any outstanding Letter of Credit shall not
be increased, if after giving effect thereto the Letter of Credit Outstandings
would exceed either (x) $25,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans and Swing Line Loans then outstanding, an amount
equal to the Total Revolving Commitment at such time; (ii) no individual Letter
of Credit (other than any Existing Letter of Credit) shall be issued which has
an initial Stated Amount less than $100,000 unless such lesser Stated Amount is
acceptable to the Letter of Credit Issuer; and (iii) each Letter of Credit shall
have an expiry date (including any renewal periods) occurring not later than the
earlier of (A) one year from the date of issuance thereof, unless a longer
period is approved by the relevant Letter of Credit Issuer and Lenders (other
than any Defaulting Lender) holding a majority of the Total Revolving
Commitment, and (B) 15 Business Days prior to the Revolving Maturity Date, in
each case on terms acceptable to the Administrative Agent and the relevant
Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless either (i) such Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the
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participation in Letters of Credit of the Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender's or Lenders' Revolving
Facility Percentage of the Letter of Credit Outstandings; or (ii) the issuance
of such Letter of Credit, taking into account the potential failure of the
Defaulting Lender or Lenders to risk participate therein, will not cause the
Letter of Credit Issuer to incur aggregate credit exposure hereunder with
respect to Revolving Loans and Letter of Credit Outstandings in excess of its
Revolving Commitment, and the Borrower has undertaken, for the benefit of such
Letter of Credit Issuer, pursuant to an instrument satisfactory in form and
substance to such Letter of Credit Issuer, not to thereafter incur Loans or
Letter of Credit Outstandings hereunder which would cause the Letter of Credit
Issuer to incur aggregate credit exposure hereunder with respect to Revolving
Loans and Letter of Credit Outstandings in excess of its Revolving Commitment.
(d) Annex VI hereto contains a description of all letters of
credit outstanding on, and to continue in effect after, the Closing Date. Each
such letter of credit issued by a bank that is or becomes a Lender under this
Agreement on the Effective Date (each, an "EXISTING LETTER OF CREDIT") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of section 3.4(a), on the Closing Date, and the Borrower, the
Administrative Agent and the applicable Lenders hereby agree that, from and
after such date, the terms of this Agreement shall apply to such Letters of
Credit, superseding any other agreement theretofore applicable to them to the
extent inconsistent with the terms hereof.
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever
it desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the Letter of Credit Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice
shall be substantially in the form of Exhibit B-3, or transmit by electronic
communication (if arrangements for doing so have been approved by the Letter of
Credit Issuer), prior to 12:00 noon (local time at its Notice Office) at least
three Business Days (or such shorter period as may be acceptable to the relevant
Letter of Credit Issuer) prior to the proposed date of issuance (which shall be
a Business Day) (each a "LETTER OF CREDIT REQUEST"), which Letter of Credit
Request shall include such supporting documents that such Letter of Credit
Issuer customarily requires in connection therewith (including, in the case of a
Letter of Credit for an account party other than the Borrower, an application
for, and if applicable a reimbursement agreement with respect to, such Letter of
Credit). Any such documents executed in connection with the issuance of a Letter
of Credit, including the Letter of Credit itself, are herein referred to as
"LETTER OF CREDIT DOCUMENTS". In the event of any inconsistency between any of
the terms or provisions of any Letter of Credit Document and the terms and
provisions of this Agreement respecting Letters of Credit, the terms and
provisions of this Agreement shall control. The Administrative Agent shall
promptly notify each Lender of each Letter of Credit Request.
(b) Each Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it, give the Administrative Agent, each
applicable Lender and the Borrower written notice of the issuance of such Letter
of Credit, accompanied by a copy to the Administrative Agent of the Letter of
Credit or Letters of Credit issued by it. Each Letter of Credit Issuer shall
provide to the Administrative Agent a quarterly (or monthly if requested by any
applicable Lender) summary describing each Letter of Credit issued by such
Letter of Credit Issuer and then outstanding and an identification for the
relevant period of the daily aggregate Letter of Credit Outstandings represented
by Letters of Credit issued by such Letter of Credit Issuer.
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse (or cause any Letter of Credit Obligor for whose
account a Letter of Credit was issued to reimburse) each Letter of Credit
Issuer, by making payment directly to such Letter of Credit Issuer in
immediately available funds at the payment office of such Letter of Credit
Issuer, for any payment or disbursement made by such Letter of Credit Issuer
under any Letter of Credit (each such amount so paid or disbursed until
reimbursed, an "UNPAID DRAWING") immediately after, and in any event on the date
on which, such Letter of Credit Issuer notifies the Borrower (or any such other
Letter of Credit Obligor for whose account such Letter of Credit was issued) of
such payment or disbursement (which notice to the Borrower (or such other Letter
of Credit Obligor) shall be delivered reasonably promptly after any such payment
or disbursement), such payment to be made in Dollars, with interest on the
amount so paid or disbursed by such Letter of Credit Issuer, to the extent not
reimbursed prior to 1:00 P.M. (local time at the payment office of the Letter of
Credit Issuer) on the date of such payment or disbursement, from and including
the date paid or disbursed to but not including the date such Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the rate then
applicable to Prime Rate Loans (plus an additional 2% per annum if not
reimbursed on the date of such payment or disbursement), any such interest also
to be payable on demand.
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(b) The Borrower's obligation under this section 3.3 to reimburse,
or cause another Letter of Credit Obligor to reimburse, each Letter of Credit
Issuer with respect to Unpaid Drawings (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower or any other Letter of Credit Obligor may have or have had against such
Letter of Credit Issuer, the Administrative Agent, any other Letter of Credit
Issuer or any Lender, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of such drawing, PROVIDED, HOWEVER that the Borrower shall not be
obligated to reimburse, or cause another Letter of Credit Obligor to reimburse,
a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such Letter of Credit
Issuer.
3.4. LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit (and on the
Closing Date with respect to any Existing Letter of Credit), such Letter of
Credit Issuer shall be deemed to have sold and transferred to each Lender with a
Revolving Commitment, and each such Lender (each a "LC PARTICIPANT") shall be
deemed irrevocably and unconditionally to have purchased and received from such
Letter of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Revolving Facility Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder, the obligations of the Borrower under this Agreement with respect
thereto (although Letter of Credit Fees shall be payable directly to the
Administrative Agent for the account of the Lenders as provided in section
4.1(b) and the LC Participants shall have no right to receive any portion of any
fees of the nature contemplated by section 4.1(c)), the obligations of any
Letter of Credit Obligor under any Letter of Credit Documents pertaining
thereto, and any security for, or guaranty pertaining to, any of the foregoing.
Upon any change in the Revolving Commitments of the Lenders pursuant to section
12.4(b), it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this section 3.4 to reflect the new Revolving
Facility Percentages of the assigning and assignee Lender.
(b) In determining whether to pay under any Letter of Credit, a
Letter of Credit Issuer shall not have any obligation relative to the LC
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by a Letter of Credit Issuer under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Letter of Credit Issuer any
resulting liability.
(c) In the event that a Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed (or caused
any applicable Letter of Credit Obligor to reimburse) such amount in full to
such Letter of Credit Issuer pursuant to section 3.3(a), such Letter of Credit
Issuer shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each LC Participant of such failure, and each LC
Participant shall promptly and unconditionally pay to the Administrative Agent
for the account of such Letter of Credit Issuer, the amount of such LC
Participant's Revolving Facility Percentage of such payment in Dollars and in
same day funds, PROVIDED, HOWEVER, that no LC Participant shall be obligated to
pay to the Administrative Agent its Revolving Facility Percentage of such
unreimbursed amount for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such Letter of Credit
Issuer. If the Administrative Agent so notifies any LC Participant required to
fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its
Notice Office) on any Business Day, such LC Participant shall make available to
the Administrative Agent for the account of the relevant Letter of Credit Issuer
such LC Participant's Revolving Facility Percentage of the amount of such
payment on such Business Day in same day funds. If and to the extent such LC
Participant shall not have so made its Revolving Facility Percentage of the
amount of such payment available to the Administrative Agent for the account of
the relevant Letter of Credit Issuer, such LC Participant agrees to pay to the
Administrative Agent for the account of such Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The
failure of any LC Participant to make available to the Administrative Agent for
the account of the relevant Letter of Credit Issuer its Revolving Facility
Percentage of any payment under any Letter of Credit shall not relieve any other
LC Participant of its obligation hereunder to make available to the
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Administrative Agent for the account of such Letter of Credit Issuer its
Revolving Facility Percentage of any payment under any Letter of Credit on the
date required, as specified above, but no LC Participant shall be responsible
for the failure of any other LC Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
LC Participant's Revolving Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the LC
Participants pursuant to section 3.4(c) above, such Letter of Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each LC Participant which has paid its Revolving Facility
Percentage thereof, in Dollars and in same day funds, an amount equal to such LC
Participant's Revolving Facility Percentage of the principal amount thereof and
interest thereon accruing after the purchase of the respective participations,
as and to the extent so received.
(e) The obligations of the LC Participants to make payments to the
Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other
right which the Borrower (or any other Letter of Credit Obligor) may
have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any Letter of
Credit Issuer, any Lender, or other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower (or any other Letter of Credit
Obligor) and the beneficiary named in any such Letter of Credit), other
than any claim which the Borrower (or any other Letter of Credit
Obligor which is the account party with respect to a Letter of Credit)
may have against any applicable Letter of Credit Issuer for gross
negligence or willful misconduct of such Letter of Credit Issuer in
making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented
under the 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified
by the Borrower, the LC Participants will reimburse and indemnify the Letter of
Credit Issuer, in proportion to their respective Revolving Facility Percentages,
for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Letter of Credit Issuer in performing its respective duties in any way
related to or arising out of its issuance of Letters of Credit, PROVIDED that no
LC Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct.
3.5. INCREASED COSTS. If after the Effective Date, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Letter of Credit Issuer or any
Lender with any request or directive (whether or not having the
34
force of law) by any such authority, central bank or comparable agency (in each
case made subsequent to the Effective Date) shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Letter of Credit Issuer or such
Lender's participation therein, or (ii) shall impose on such Letter of Credit
Issuer or any Lender any other conditions affecting this Agreement, any Letter
of Credit or such Lender's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such Lender
of issuing, maintaining or participating in any Letter of Credit, or to reduce
the amount of any sum received or receivable by such Letter of Credit Issuer or
such Lender hereunder (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in the rate
of taxes or similar charges), then, upon demand to the Borrower by such Letter
of Credit Issuer or such Lender (a copy of which notice shall be sent by such
Letter of Credit Issuer or such Lender to the Administrative Agent), the
Borrower shall pay to such Letter of Credit Issuer or such Lender such
additional amount or amounts as will compensate any such Letter of Credit Issuer
or such Lender on an after tax basis for such increased cost or reduction. A
certificate submitted to the Borrower by any Letter of Credit Issuer or any
Lender, as the case may be (a copy of which certificate shall be sent by such
Letter of Credit Issuer or such Lender to the Administrative Agent), setting
forth, in reasonable detail, the basis for the determination of such additional
amount or amounts necessary to compensate any Letter of Credit Issuer or such
Lender as aforesaid shall be conclusive and binding on the Borrower absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this section 3.5. Reference is hereby made to the provisions of
section 2.9(d) for certain limitations upon the rights of a Letter of Credit
Issuer or Lender under this section.
3.6. GUARANTY OF LETTER OF CREDIT OBLIGATIONS OF OTHER LETTER OF
CREDIT OBLIGORS. (a) The Borrower hereby unconditionally guarantees, for the
benefit of the Administrative Agent and the Lenders, the full and punctual
payment of the Obligations of each other Letter of Credit Obligor under each
Letter of Credit Document to which such other Letter of Credit Obligor is now or
hereafter becomes a party. Upon failure by any such other Letter of Credit
Obligor to pay punctually any such amount, the Borrower shall forthwith on
demand by the Administrative Agent pay the amount not so paid at the place and
in the currency and otherwise in the manner specified in this Agreement or any
applicable Letter of Credit Document.
(b) As a separate, additional and continuing obligation, the
Borrower unconditionally and irrevocably undertakes and agrees, for the benefit
of the Administrative Agent and the Lenders, that, should any amounts not be
recoverable from the Borrower under section 3.6(a) for any reason whatsoever
(including, without limitation, by reason of any provision of any Credit
Document or any other agreement or instrument executed in connection therewith
being or becoming void, unenforceable, or otherwise invalid under any applicable
law) then, notwithstanding any notice or knowledge thereof by any Lender, the
Administrative Agent, any of their respective Affiliates, or any other Person,
at any time, the Borrower as sole, original and independent obligor, upon demand
by the Administrative Agent, will make payment to the Administrative Agent, for
the account of the Lenders and the Administrative Agent, of all such obligations
not so recoverable by way of full payment therefor, in such currency and
otherwise in such manner as is provided in the Credit Documents.
(c) The obligations of the Borrower under this section shall be
unconditional and absolute and, without limiting the generality of the foregoing
shall not be released, discharged or otherwise affected by the occurrence, one
or more times, of any of the following:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect to any obligation of any other Letter of
Credit Obligor under any Letter of Credit Document, by operation of law
or otherwise;
(ii) any modification or amendment of or supplement to
this Agreement, any Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under
this Agreement, any Note or any other Credit Document or of any other
Letter of Credit Obligor under any Letter of Credit Document;
35
(iv) any change in the corporate existence, structure or
ownership of any other Letter of Credit Obligor or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any
other Letter of Credit Obligor or its assets or any resulting release
or discharge of any obligation of any other Letter of Credit Obligor
contained in any Letter of Credit Document;
(v) the existence of any claim, set-off or other rights
which the Borrower may have at any time against any other Letter of
Credit Obligor, the Administrative Agent, any Lender or any other
Person, whether in connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or
against any other Letter of Credit Obligor for any reason of any Letter
of Credit Document, or any provision of applicable law or regulation
purporting to prohibit the payment by any other Letter of Credit
Obligor of any Obligations in respect of any Letter of Credit; or
(vii) any other act or omission to act or delay of any kind
by any other Letter of Credit Obligor, the Administrative Agent, any
Lender or any other Person or any other circumstance whatsoever which
might, but for the provisions of this section, constitute a legal or
equitable discharge of the Borrower's obligations under this section.
(d) The Borrower's obligations under this section shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrower under the Credit Documents and by any other Letter of Credit Obligor
under the Letter of Credit Documents shall have been paid in full. If at any
time any payment of any of the Obligations of any other Letter of Credit Obligor
in respect of any Letter of Credit Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of such
other Letter of Credit Obligor, the Borrower's obligations under this section
with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time.
(e) The Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against any
other Letter of Credit Obligor or any other Person, or against any collateral or
guaranty of any other Person.
(f) Until the indefeasible payment in full of all of the
Obligations and the termination of the Commitments of the Lenders hereunder, the
Borrower shall have no rights, by operation of law or otherwise, upon making any
payment under this section to be subrogated to the rights of the payee against
any other Letter of Credit Obligor with respect to such payment or otherwise to
be reimbursed, indemnified or exonerated by any other Letter of Credit Obligor
in respect thereof.
(g) In the event that acceleration of the time for payment of any
amount payable by any other Letter of Credit Obligor under any Letter of Credit
Document is stayed upon insolvency, bankruptcy or reorganization of such other
Letter of Credit Obligor, all such amounts otherwise subject to acceleration
under the terms of any applicable Letter of Credit Document shall nonetheless be
payable by the Borrower under this section forthwith on demand by the
Administrative Agent.
SECTION 4. FEES; COMMITMENTS
4.1. FEES. (a) COMMITMENT FEES. The Borrower agrees to pay to the
Administrative Agent fees ("COMMITMENT FEES") for the account of each
Non-Defaulting Lender for the period from and including the Effective Date to,
but not including, the Maturity Date or, if earlier, the date upon which the
Total Revolving Commitment has been terminated, computed for each day at a rate
per annum equal to the Applicable Commitment Fee for such day on the amount of
such Lender's Revolving Facility Percentage of the Unutilized Total Revolving
Commitment for such day. Commitment Fees shall be due and payable in arrears on
April 1, July 1, October 1 and January 1 and on the Maturity Date or, if
earlier, the date upon which the Total Revolving Commitment has been terminated.
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(b) LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of each Non-Defaulting Lender, PRO RATA on
the basis of its Revolving Facility Percentage, a fee in respect of each Letter
of Credit (the "LETTER OF CREDIT FEE"), computed for each day at the rate per
annum equal to the Applicable Eurocurrency Margin then in effect for Revolving
Loans on the Stated Amount of all Letters of Credit outstanding on such day.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
each April 1, July 1, October 1 and January 1 and on the date when the Total
Revolving Commitment expires or is terminated and no Letters of Credit remain
outstanding. The Borrower also agrees to pay to the Administrative Agent, for
the account of each Non-Defaulting Lender which has a Revolving Commitment, PRO
RATA on the basis of its Revolving Facility Percentage, additional Letter of
Credit Fees, on demand, at the rate of 200 basis points per annum, on the Stated
Amount of each Letter of Credit, for any period when a Default under section
10.1(a) or Event of Default is in existence.
(c) FACING FEES. The Borrower agrees to pay directly to each
Letter of Credit Issuer a fee in respect of each Letter of Credit issued by it
(a "FACING FEE"), computed for each day at the rate of 1/8 of 1% per annum on
the Stated Amount of such Letter of Credit issued by such Letter of Credit
Issuer which is outstanding on such day. Accrued Facing Fees shall be due and
payable quarterly in arrears on April 1, July 1, October 1 and January 1 and on
the date on which the Total Revolving Commitment expires or is terminated and no
Letters of Credit remain outstanding.
(d) ADDITIONAL CHARGES OF LETTER OF CREDIT ISSUER. The Borrower
agrees to pay directly to each Letter of Credit Issuer upon each issuance of,
drawing under, and/or amendment, extension, renewal or transfer of, a Letter of
Credit issued by it such amount as shall at the time of such issuance, drawing,
amendment, extension, renewal or transfer be the administrative or processing
charge which such Letter of Credit Issuer is customarily charging for issuances
of, drawings under or amendments, extensions, renewals or transfers of, letters
of credit issued by it.
(e) OTHER FEES. The Borrower shall pay to the Administrative Agent
and/or the Lead Arranger, on the Effective Date and thereafter, for its or their
own account and/or for distribution to the Lenders, such fees as have heretofore
been agreed by the Borrower in a letter among the Borrower, the Administrative
Agent and the Lead Arranger.
(f) COMPUTATIONS OF FEES. All computations of Fees shall be made
in accordance with section 12.7(b).
4.2. VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS. Upon at least
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right to:
(a) terminate the Total Revolving Commitment, PROVIDED
that (i) all outstanding Loans are contemporaneously prepaid in
accordance with section 5.1, and (ii) either (A) no Letters of Credit
remain outstanding, or (B) the Borrower shall contemporaneously either
(x) cause all outstanding Letters of Credit to be surrendered for
cancellation (any such Letters of Credit to be replaced by letters of
credit issued by other financial institutions acceptable to each Letter
of Credit Issuer and the Required Lenders), or (y) the Borrower shall
pay to the Collateral Agent an amount in cash and/or Cash Equivalents
equal to 100% of the Letter of Credit Outstandings and the Collateral
Agent shall hold such payment as security for the reimbursement
obligations of the Borrower and the other Letter of Credit Obligors in
respect of Letters of Credit pursuant to a cash collateral agreement to
be entered into in form and substance reasonably satisfactory to the
Collateral Agent, each Letter of Credit Issuer and the Borrower (which
shall permit certain investments in Cash Equivalents satisfactory to
the Collateral Agent, each Letter of Credit Issuer and the Borrower
until the proceeds are applied to the secured obligations);
(b) partially and permanently reduce the Total Revolving
Commitment, PROVIDED that:
(i) any such reduction shall apply to
proportionately and permanently reduce the Revolving
Commitment of each of the Lenders;
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(ii) any partial reduction of the Total Revolving
Commitment pursuant to this section 4.2(b) shall be in the
amount of at least $5,000,000 (or, if greater, in integral
multiples of $1,000,000);
(iii) the Total Revolving Commitment as so reduced
shall be at least $25,000,000; and
(iv) after giving effect to any such partial
reduction of the Total Revolving Commitment, (x) the Total
Revolving Commitment then in effect shall exceed the aggregate
of the Swing Line Commitment then in effect by at least
$25,000,000, and (y) the resulting Total Revolving Commitment
shall exceed the outstanding Swing Line Loans, if any, by at
least $25,000,000;
(c) partially and permanently reduce the Swing Line
Commitment, PROVIDED that any partial reduction of the Unutilized Swing
Line Commitment pursuant to this section 4.2(c) shall be in the amount
of at least $1,000,000 (or, if greater, in integral multiples of
$1,000,000).
4.3. MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Revolving Commitment (and the Revolving Commitment of each Lender) shall
terminate on the earlier of (x) the Maturity Date and (y) the date on which a
Change of Control occurs.
(b) The Swing Line Commitment shall terminate on the earlier of
(x) the Maturity Date and (y) the date on which a Change of Control occurs.
(c) The Total Revolving Commitment shall be permanently reduced,
without premium or penalty, at the time that any mandatory prepayment of
Revolving Loans would be made pursuant to section 5.2(e), (f), (g), (h) or (i)
as if Revolving Loans were then outstanding in the full amount of the Total
Revolving Commitment, in an amount equal to the required prepayment of principal
of Revolving Loans which would be required to be made in such circumstance;
PROVIDED that no such reduction in the Total Revolving Commitment shall be
required as a result of any required prepayment of Revolving Loans which would
be attributable to the receipt of Net Cash Proceeds representing proceeds of
business interruption insurance or insurance on inventory pursuant to section
5.2(h). Any such required reduction shall apply to proportionately and
permanently reduce the Revolving Commitment of each of the Lenders. The Borrower
will provide at least three Business Days' prior written notice (or telephonic
notice confirmed in writing) to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), of any reduction of the Total Revolving Commitment pursuant to this
section 4.3(f), specifying the date and amount of the reduction.
SECTION 5. PAYMENTS
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay any of its Loans, in whole or in part, without premium or penalty, from
time to time, but only on the following terms and conditions:
(a) NOTICES: the Borrower shall give the Administrative Agent at
the Notice Office written or telephonic notice (in the case of telephonic
notice, promptly confirmed in writing if so requested by the Administrative
Agent) of its intent to prepay the Loans, the amount of such prepayment and (in
the case of Eurocurrency Loans or Money Market Rate Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be received by the
Administrative Agent by
(i) 11:00 A.M. (local time at the Notice Office)
three Business Days prior to the date of such prepayment, in
the case of any prepayment of Eurocurrency Loans or Money
Market Rate Loans, or
(ii) 11:00 A.M. (local time at the Notice Office)
on the date of such prepayment, in the case of any prepayment
of Prime Rate Loans,
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and which notice shall promptly be transmitted by the Administrative
Agent to each of the affected Lenders;
(b) PARTIAL PREPAYMENTS OF REVOLVING BORROWING: in the case of
prepayment of a Borrowing under the Revolving Facility, each partial prepayment
of such Borrowing shall be in an aggregate principal of at least $2,500,000 or
an integral multiple of $500,000 in excess thereof, in the case where such
Borrowing consists of Prime Rate Loans, and at least $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, in the case where such Borrowing
consists of Eurocurrency Loans;
(c) PARTIAL PREPAYMENT OF SWING LINE BORROWING: in the case of
prepayment of a Borrowing under the Swing Line Facility, each partial prepayment
of such Borrowing shall be in an aggregate principal of at least $100,000 or an
integral multiple of $50,000 in excess thereof;
(d) MINIMUM BORROWING AMOUNT AFTER PARTIAL PREPAYMENT: no partial
prepayment of any Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of such Loans outstanding pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto;
(e) PREPAYMENTS TO BE APPLIED PRO RATA: each prepayment in respect
of any Loans made pursuant to a Borrowing shall be applied PRO RATA among such
Loans; and
(f) BREAKAGE COMPENSATION: each prepayment of Eurocurrency Loans
or Money Market Rate Loans pursuant to this section 5.1 on any date other than
the last day of the Interest Period applicable thereto, in the case of
Eurocurrency Loans, or the maturity date thereof, in the case of Money Market
Rate Loans, shall be accompanied by any amounts payable in respect thereof under
section 2.10.
5.2. SCHEDULED REPAYMENTS AND MANDATORY PREPAYMENTS. The Loans
shall be subject to mandatory repayment or prepayment in accordance with the
following provisions:
(a) SCHEDULED REPAYMENTS OF LOANS. The Borrower shall repay the
entire principal amount outstanding of any Revolving Loans on the Maturity Date.
(b) MANDATORY PREPAYMENT---IF OUTSTANDING REVOLVING LOANS, SWING
LINE LOANS AND LETTER OF CREDIT OUTSTANDINGS EXCEED TOTAL REVOLVING COMMITMENT.
If on any date (after giving effect to any other payments on such date) the sum
of (i) the aggregate outstanding principal amount of Revolving Loans plus (ii)
the aggregate outstanding principal amount of Swing Line Loans plus (iii) the
aggregate amount of Letter of Credit Outstandings, exceeds the Total Revolving
Commitment as then in effect, then the Borrower shall prepay on such date that
principal amount of Swing Line Loans and, after Swing Line Loans have been paid
in full, Revolving Loans, and after Revolving Loans have been paid in full,
Unpaid Drawings, in an aggregate amount at least equal to such excess and
conforming in the case of partial prepayments of Loans to the requirements as to
the amounts of partial prepayments which are contained in section 5.1. If, after
giving effect to the prepayment of Swing Line Loans, Revolving Loans and Unpaid
Drawings, the aggregate amount of Letter of Credit Outstandings exceeds the
Total Revolving Commitment as then in effect, then the Borrower shall pay to the
Collateral Agent an amount in cash and/or Cash Equivalents equal to such excess
and the Collateral Agent shall hold such payment as security for the
reimbursement obligations of the Borrower and other Letter of Credit Obligors in
respect of Letters of Credit pursuant to a cash collateral agreement or other
appropriate documentation to be entered into in form and substance reasonably
satisfactory to the Collateral Agent, each Letter of Credit Issuer and the
Borrower (which shall permit certain investments in Cash Equivalents
satisfactory to the Collateral Agent, each Letter of Credit Issuer and the
Borrower until the proceeds are applied to the secured obligations).
(c) MANDATORY PREPAYMENT---IF SWING LINE LOANS EXCEED UNUTILIZED
TOTAL REVOLVING COMMITMENT. If on any date (after giving effect to any other
payments on such date) the aggregate outstanding principal amount of Swing Line
Loans exceeds the Unutilized Total Revolving Commitment as then in effect, the
Borrower shall prepay on such date Swing Line Loans in an aggregate principal
amount at least equal to such excess and conforming in the case of partial
prepayments of Swing Line Loans to the requirements as to the amounts of partial
prepayments which are contained in section 5.1.
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(d) MANDATORY PREPAYMENT---IF SWING LINE LOANS EXCEED SWING LINE
COMMITMENT. If on any date (after giving effect to any other payments on such
date) the aggregate outstanding principal amount of Swing Line Loans exceeds the
Swing Line Commitment as then in effect, the Borrower shall prepay on such date
Swing Line Loans in an aggregate principal amount at least equal to such excess
and conforming in the case of partial prepayments of Loans to the requirements
as to the amounts of partial prepayments which are contained in section 5.1.
(e) MANDATORY PREPAYMENT---CERTAIN PROCEEDS OF ASSET SALES. If
during any fiscal year of the Borrower, the Borrower and its Subsidiaries have
received cumulative Cash Proceeds during such fiscal year from one or more Asset
Sales of at least $10,000,000 (excluding any Exempted Disposition), not later
than the fifth Business Day following the date of receipt of any Cash Proceeds
in excess of such amount, an amount, conforming to the requirements as to the
amount of partial prepayments contained in section 5.1, at least equal to 100%
of the Net Cash Proceeds then received in excess of such amount from any Asset
Sale, shall be applied as a mandatory prepayment of principal of FIRST, Swing
Line Loans, SECOND, after all Swing Line Loans have been paid in full, Unpaid
Drawings, and THIRD, after all Unpaid Drawings have been paid in full, Revolving
Loans; PROVIDED, that if (A) no Default under section 10.1(a) or Event of
Default shall have occurred and be continuing, (B) the Borrower's ratio of
Consolidated Total Debt to Consolidated EBITDA as of the end of the most recent
Testing Period for which financial statements have been delivered to the Lenders
hereunder was not in excess of 3.50 to 1.00, (C) the Borrower and its
Subsidiaries have scheduled Consolidated Capital Expenditures during the
following 359 days, and (D) the Borrower notifies the Administrative Agent of
the amount and nature thereof and of its intention to reinvest all or a portion
of such Net Cash Proceeds in such Consolidated Capital Expenditures during such
359 day period, THEN no such prepayment shall be required to the extent of the
amount of such Net Cash Proceeds as to which the Borrower so indicates such
reinvestment will take place. If at the end of any such 359 day period any
portion of such Net Cash Proceeds has not been so reinvested, the Borrower will
immediately make a prepayment of the principal of FIRST, Swing Line Loans,
SECOND, after all Swing Line Loans have been paid in full, Unpaid Drawings, and
THIRD, after all Unpaid Drawings have been paid in full, Revolving Loans.
Notwithstanding the foregoing, the Borrower shall not in any event permit to
exist Excess Proceeds (as defined in the Indenture), unless at such time the
Borrower is permitted to redeem Public Notes under section 9.11 hereof and the
Borrower does in fact make an Asset Sale Offer (as defined in the Indenture) to
redeem Public Notes as contemplated by section 4.10 of the Indenture in the
amount of any such Excess Proceeds.
(f) MANDATORY PREPAYMENT---CERTAIN PROCEEDS OF EQUITY SALES. Not
later than the Business Day following the date of the receipt by the Borrower or
any Subsidiary of the cash proceeds (net of underwriting discounts and
commissions, placement agent fees and other customary fees and costs associated
therewith) from any sale or issuance of equity securities by the Borrower or any
Subsidiary after the Closing Date (other than any sale or issuance to
management, employees (or key employees) or directors pursuant to stock option,
stock grant or similar plans for the benefit of management, employees (key
employees) or directors generally), the Borrower will prepay the principal of
FIRST, Swing Line Loans, SECOND, after all Swing Line Loans have been paid in
full, Unpaid Drawings, and THIRD, after all Unpaid Drawings have been paid in
full, Revolving Loans, in an amount which is not less than (x) 50% of such net
proceeds, or (y) if less, an amount equal to the then aggregate outstanding
principal amount of the outstanding Loans, if any.
(g) MANDATORY PREPAYMENT---CERTAIN PROCEEDS OF DEBT SECURITIES.
Not later than the Business Day following the date of the receipt by the
Borrower or any Subsidiary of the cash proceeds (net of underwriting discounts
and commissions, placement agent fees and other customary fees and costs
associated therewith) from any sale or issuance of debt securities by the
Borrower or any Subsidiary after the Closing Date in an underwritten public
offering, Rule 144A offering, or private placement with one or more
institutional investors, the Borrower will prepay the principal of FIRST, Swing
Line Loans, SECOND, after all Swing Line Loans have been paid in full, Unpaid
Drawings, and THIRD, after all Unpaid Drawings have been paid in full, Revolving
Loans, in an amount which is not less than (x) 100% of such net proceeds, or (y)
if less, an amount equal to the then aggregate outstanding principal amount of
the outstanding Loans, if any.
(h) MANDATORY PREPAYMENT---CERTAIN PROCEEDS OF AN EVENT OF LOSS.
If during any fiscal year of the Borrower, the Borrower and its Subsidiaries
have received cumulative Net Cash Proceeds during such fiscal year from one or
more Events of Loss of at least $10,000,000, not later than the fifth Business
Day following the date of receipt of any Net Cash Proceeds in excess of such
amount, an amount, conforming to the requirements as to the
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amount of partial prepayments contained in section 5.1, at least equal to 100%
of the Net Cash Proceeds then received in excess of such amount from any Event
of Loss, shall be applied as a mandatory prepayment of principal of FIRST, Swing
Line Loans, SECOND, after all Swing Line Loans have been paid in full, Unpaid
Drawings, and THIRD, after all Unpaid Drawings have been paid in full, Revolving
Loans.
(i) MANDATORY PREPAYMENT---CHANGE OF CONTROL. On the date of which
a Change of Control occurs, notwithstanding anything to the contrary contained
in this Agreement, no further Borrowings shall be made and the then outstanding
principal amount of all Loans, if any, and other Obligations, shall become due
and payable and shall be prepaid in full, together with accrued interest and
Fees and the Borrower shall contemporaneously either (i) cause all outstanding
Letters of Credit to be surrendered for cancellation (any such Letters of Credit
to be replaced by letters of credit issued by other financial institutions
acceptable to the Required Lenders), or (ii) the Borrower shall pay to the
Collateral Agent an amount in cash and/or Cash Equivalents equal to 100% of the
Letter of Credit Outstandings and the Administrative Agent shall hold such
payment as security for the reimbursement obligations of the Borrower and the
other Letter of Credit Obligors in respect of Letters of Credit pursuant to a
cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Collateral Agent, each Letter of Credit Issuer and the
Borrower (which shall permit certain investments in Cash Equivalents
satisfactory to the Collateral Agent, each Letter of Credit Issuer and the
Borrower until the proceeds are applied to the secured obligations).
(j) PARTICULAR LOANS TO BE PREPAID. With respect to each repayment
or prepayment of Loans required by this section 5.2, the Borrower shall
designate the Types of Loans which are to be repaid or prepaid and the specific
Borrowing(s) pursuant to which such repayment or prepayment is to be made,
PROVIDED that (i) the Borrower shall first so designate all Loans that are Prime
Rate Loans and Eurocurrency Loans with Interest Periods ending on the date of
repayment or prepayment prior to designating any other Eurocurrency Loans for
repayment or prepayment, (ii) if the outstanding principal amount of
Eurocurrency Loans made pursuant to a Borrowing is reduced below the applicable
Minimum Borrowing Amount as a result of any such repayment or prepayment, then
all the Loans outstanding pursuant to such Borrowing shall be Converted into
Prime Rate Loans, and (iii) each repayment and prepayment of any Loans made
pursuant to a Borrowing shall be applied PRO RATA among such Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs
owing under section 2.10. Any repayment or prepayment of Eurocurrency Loans or
Money Market Loans pursuant to this section 5.2 shall in all events be
accompanied by such compensation as is required by section 2.10.
5.3. METHOD AND PLACE OF PAYMENT. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Administrative Agent for the ratable (based on its PRO RATA share) account
of the Lenders entitled thereto, not later than 12:00 noon (local time at the
Payment Office) on the date when due and shall be made at the Payment Office in
immediately available funds and in lawful money of the United States of America,
at the Payment Office, it being understood that written notice by the Borrower
to the Administrative Agent to make a payment from the funds in the Borrower's
account at the Payment Office shall constitute the making of such payment to the
extent of such funds held in such account. Any payments under this Agreement
which are made later than 12:00 noon (local time at the Payment Office) shall be
deemed to have been made on the next succeeding Business Day. Whenever any
payment to be made hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable during such extension at the applicable rate in effect immediately prior
to such extension.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
Unpaid Drawings, interest and Fees then due hereunder and an Event of Default is
not then in existence, such funds shall be applied (i) FIRST, towards payment of
interest and Fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and Fees then due to such parties,
and (ii) SECOND, towards payment of principal and Unpaid Drawings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and Unpaid Drawings then due to such parties.
5.4. NET PAYMENTS. (a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in section
41
5.4(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax, imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction under which
such Lender is organized or the jurisdiction in which the principal office or
Applicable Lending Office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect to
such non excluded taxes, levies imposts, duties, fees, assessments or other
charges (all such nonexcluded taxes levies, imposts, duties, fees assessments or
other charges being referred to collectively as "TAXES"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes and
such additional amounts as may be necessary so that every payment by them of all
amounts due hereunder, under any Note or under any other Credit Document, after
withholding or deduction for or on account of any Taxes will not be less than
the amount provided for herein or in such Note or in such other Credit Document.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Borrower agrees to reimburse each Lender, upon the written request
of such Lender for taxes imposed on or measured by the net income or profits of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or Applicable Lending Office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which the principal office or Applicable
Lending Office of such Lender is located and for any withholding of income or
similar taxes imposed by the United States of America as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence, which request shall be accompanied by a statement
from such Lender setting forth, in reasonable detail, the computations used in
determining such amounts. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes, or any withholding or
deduction on account thereof, is due pursuant to applicable law certified copies
of tax receipts, or other evidence satisfactory to the relevant Lender,
evidencing such payment by the Borrower. The Borrower will indemnify and hold
harmless the Administrative Agent and each Lender, and reimburse the
Administrative Agent or such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid or withheld by such Lender.
(b) Each Lender that is a Foreign Lender agrees to provide to the
Borrower and the Administrative Agent on or prior to the Effective Date, or in
the cases of a Lender that is an assignee or transferee of an interest under
this Agreement pursuant to section 12.4 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer and
such Lender is in compliance with the provisions of this section 5.4(b)), on the
date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or successor forms) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement, any Note or any other Credit Document, or (ii)
if the Lender is not a "bank" within the meaning of section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form W-8BEN or W-8ECI
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit H (any such certificate, a "SECTION 5.4(b)(II) CERTIFICATE") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement, any Note or any other Credit Document.
In addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN or W-8ECI, and a Section
5.4(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note or any other Credit Document,
or it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such Form or Certificate pursuant to this
section 5.4(b). Notwithstanding anything to the contrary contained in section
5.4(a), but subject to section 12.4(g) and the immediately succeeding sentence,
(x) the Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or other similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is a Foreign Lender and which has not provided to the Borrower such
forms that establish a complete exemption from such deduction or withholding and
(y) the Borrower
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shall not be obligated pursuant to section 5.4(a) hereof to gross-up payments to
be made to a Lender in respect of income or similar taxes imposed by the United
States or any additional amounts with respect thereto (I) if such Lender has not
provided to the Borrower the Internal Revenue Service forms required to be
provided to the Borrower pursuant to this section 5.4(b) or (II) in the case of
a payment other than interest, to a Lender described in clause (ii) above, to
the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this section 5.4 and except as
specifically provided for in section 12.4(g), the Borrower agrees to pay
additional amounts and indemnify each Lender in the manner set forth in section
5.4(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the previous sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it has
finally and irrevocably received or been granted a refund in respect of any
Taxes paid as to which indemnification has been paid by the Borrower pursuant to
this section, it shall promptly remit such refund (including any interest
received in respect thereof), net of all out-of-pocket costs and expenses;
PROVIDED, that the Borrower agrees to promptly return any such refund (plus
interest) to such Lender in the event such Lender is required to repay such
refund to the relevant taxing authority. Any such Lender shall provide the
Borrower with a copy of any notice of assessment from the relevant taxing
authority (redacting any unrelated confidential information contained therein)
requiring repayment of such refund. Nothing contained herein shall impose an
obligation on any Lender to apply for any such refund.
(d) Reference is hereby made to the provisions of section 2.9(d)
for certain limitations upon the rights of a Lender under this section.
SECTION 6. CONDITIONS PRECEDENT
6.1. CONDITIONS PRECEDENT AT CLOSING DATE. The obligation of the
Lenders to make Loans, and of any Letter of Credit Issuer to issue Letters of
Credit, is subject to the satisfaction of each of the following conditions on or
prior to the Closing Date:
(a) EFFECTIVENESS; NOTES. On or prior to the Closing Date, (i) the
Effective Date shall have occurred and (ii) if requested by any Lender, there
shall have been delivered to the Administrative Agent for the account of each
Lender each appropriate Note executed by the Borrower, in each case, in the
amount, maturity and as otherwise provided herein.
(b) FEES, ETC. The Borrower shall have paid or caused to be paid
all fees required to be paid by it on or prior to such date pursuant to section
4.1 hereof and all reasonable fees and expenses of the Lead Arranger and the
Administrative Agent and of special counsel to the Administrative Agent which
have been invoiced on or prior to such date in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the
consummation of the transactions contemplated hereby and thereby.
(c) OTHER CREDIT DOCUMENTS. The Credit Parties named therein shall
have duly executed and delivered and there shall be in full force and effect,
and original counterparts shall have been delivered to the Administrative Agent,
in sufficient quantities for the Lenders, of: (i) the Subsidiary Guaranty; (ii)
the Security Agreement; (iii) the Collateral Assignment of Patents; (iv) the
Collateral Assignment of Trademarks; and (v) the Pledge Agreement.
(d) CHARTER AND BY-LAWS, GOOD STANDING. The Administrative Agent
shall have received, in sufficient quantity for the Administrative Agent and the
Lenders, (i) a copy of the certificate or articles of incorporation of the
Borrower and each other Credit Party, including any amendments or restatements
thereof, certified as of a recent date by the Secretary of State or other
governmental official of the jurisdiction of its formation, (ii) a copy of the
By-Laws or equivalent governing documents of the Borrower and each other Credit
Party, certified as true, correct and in full force and effect by the Secretary
or an Assistant Secretary of such Credit Party; and (iii) a copy of a
certificate of good standing for the Borrower and each other Credit Party,
issued as of a recent date by the Secretary of State or other governmental
official of the jurisdiction of its formation.
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(e) CORPORATE RESOLUTIONS AND APPROVALS. The Administrative Agent
shall have received, in sufficient quantity for the Administrative Agent and the
Lenders, certified copies of the resolutions of the Board of Directors (or the
equivalent) of the Borrower and each other Credit Party approving this Agreement
and all Other Credit Documents and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to the
execution, delivery and performance by the Borrower and each other Credit Party
of this Agreement.
(f) INCUMBENCY CERTIFICATES. The Administrative Agent shall have
received, in sufficient quantity for the Administrative Agent and the Lenders, a
certificate of the Secretary or an Assistant Secretary of the Borrower and each
other Credit Party, certifying the names and true signatures of the officers of
the Borrower or such other Credit Party, as the case may be, authorized to sign
the Credit Documents to which the Borrower or such other Credit Party is a party
and the other documents which may be executed and delivered in connection
herewith.
(g) OPINION OF COUNSEL. On the Closing Date, the Administrative
Agent shall have received an opinion, addressed to the Administrative Agent and
each of the Lenders and dated the Closing Date, from Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, special counsel to the Borrower covering such matters incident to the
transactions contemplated hereby as the Lead Arranger may reasonably request,
such opinion to be in form and substance satisfactory to the Lead Arranger.
(h) NO MATERIAL ADVERSE CHANGE IN LOAN SYNDICATION OR CAPITAL
MARKETS. There shall not have occurred a material disruption or material adverse
change in financial, banking, loan syndication or capital market conditions
generally syndicated leveraged loans which, in the sole judgment of the Lead
Arranger, could be expected to materially adversely affect the syndication of
portions or all of the Facilities to additional Lenders.
(i) BORROWER'S CLOSING CERTIFICATE. On the Closing Date the
Administrative Agent shall have received a certificate, dated the Closing Date,
of an Authorized Officer of the Borrower (x) to the effect that, at and as of
the Closing Date and both before and after giving effect to the initial
Borrowings hereunder and the application of the proceeds thereof, (i) the
Borrower is in compliance with all of the covenants contained in sections 8 and
9 of this Agreement, (ii) no Default or Event of Default has occurred or is
continuing, and (iii) all representations and warranties of the Credit Parties
contained herein or in the other Credit Documents are true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the Closing Date, except that as to any
such representations and warranties which expressly relate to an earlier
specified date, such representations and warranties are only represented as
having been true and correct in all material respects as of the date when made,
and (y) certifying that the Borrower's Leverage Ratio, computed in accordance
with section 9.7 hereof, for the Testing Period ended June 30, 2003 is less than
5.00 to 1.00, together with the calculation of such ratio in reasonable detail.
(j) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
and all documents incidental to the transactions contemplated hereby shall be
satisfactory in substance and form to the Administrative Agent and the Lenders
and the Administrative Agent and its special counsel and the Lenders shall have
received all such counterpart originals or certified or other copies of such
documents as the Administrative Agent or its special counsel or any Lender may
reasonably request.
(k) ABSENCE OF LITIGATION. There shall not be any action, suits or
proceedings pending or threatened with respect to the Borrower or its
Subsidiaries (i) that have, or could reasonably be expected to have, a Material
Adverse Effect, or (ii) that question the validity or enforceability of any of
the Credit Documents, or of any action to be taken by the Borrower or any of the
Credit Parties pursuant to any of the Credit Documents.
(l) DISPOSITION DOCUMENTS. On the Closing Date the Administrative
Agent shall have received executed copies of all definitive disposition
documents regarding the sale of the Borrower's precious metals chemistry
business and evidence that the divestiture has been completed on terms and
conditions satisfactory to the Lead Arranger for net cash proceeds at closing of
at least $650,000,000 (or its equivalent in Euros).
(m) NO OTHER MATERIAL INDEBTEDNESS. The Borrower shall have repaid
the amounts outstanding under its existing Credit Facility, shall have no other
material Indebtedness (or commitments for Additional Indebtedness) outstanding
(excluding the existing Public Notes and the Existing Indebtedness Agreements).
44
(n) FINANCIAL STATEMENTS; PROJECTIONS. The Administrative Agent
shall have received the following financial statements and information: (a)
audited consolidated balance sheets of the Borrower as of December 31, 2002 and
unaudited consolidated balance sheets of the Borrower as of December 31, 2002
and the related audited consolidated statements of operations and cash flows of
the Borrower for each of the of the twelve-month periods ended December 31,
2000, December 31, 2001, December 31, 2002 and unaudited consolidated statements
of operations and cash flows of the Borrower for the three-month period ended
December 31, 2003, and (b) projected financial statements (including balance
sheets and income statements, stockholders' equity and cash flows) (the
"FINANCIAL PROJECTIONS") of the Borrower and its Subsidiaries for the five-year
period following the Closing Date; all of the foregoing to be in form and
substance satisfactory to the Lead Arranger.
(o) RECORDATION OF SECURITY DOCUMENTS, DELIVERY OF COLLATERAL,
TAXES, ETC. The Security Documents (or proper notices or financing statements in
respect thereof) shall have been duly recorded, published and filed in such
manner and in such places as is required by law to establish, perfect, preserve
and protect the rights and security interests of the parties thereto and their
respective successors and assigns, all collateral items required to be
physically delivered to the Collateral Agent thereunder shall have been so
delivered, accompanied by any appropriate instruments of transfer, and all
taxes, fees and other charges then due and payable in connection with the
execution, delivery, recording, publishing and filing of such instruments and
the issue and delivery of the Notes shall have been paid in full.
(p) EVIDENCE OF INSURANCE. The Collateral Agent shall have
received certificates of insurance and other evidence, satisfactory to it, of
compliance with the insurance requirements of this Agreement and the Security
Documents.
(q) SEARCH REPORTS. The Administrative Agent shall have received
completed requests for information on Form UCC-11, or search reports from one or
more commercial search firms acceptable to the Administrative Agent, listing all
of the effective financing statements filed against the Borrower and its
Domestic Subsidiaries in any jurisdiction in which such person maintains or
maintained an office or in which any assets of such person is located, together
with copies of such financing statements.
(r) INDENTURE. The Administrative Agent shall have received a
certificate, dated the Closing Date, of a responsible financial officer of the
Borrower in form and substance satisfactory to the Administrative Agent to the
effect that (i) no default or event of default exists under the Indenture both
before and after giving effect to the initial Loans hereunder, (ii) all of the
Obligations constitute "Designated Senior Debt" and "Permitted Debt" (each as
defined in the Indenture), and (iii) such other matters with respect to the
Indenture and Public Note Documents as the Administrative Agent shall request,
together with the calculations or other evidence supporting the same.
6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligations of
the Lenders to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) NOTICE OF BORROWING, ETC. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of section 2.3 with
respect to the incurrence of Loans or a Letter of Credit Request meeting the
requirement of section 3.2 with respect to the issuance of a Letter of Credit.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties of the
Credit Parties contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event, except to the extent that such representations and warranties
expressly relate to an earlier specified date, in which case such
representations and warranties shall have been true and correct in all material
respects as of the date when made.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Lenders that all of
the applicable conditions specified in section 6.1 and/or 6.2, as the case may
be, have been satisfied as of the times referred to in sections 6.1 and 6.2. All
of the certificates, legal opinions and other documents and papers referred to
in this section 6, unless otherwise specified, shall be delivered to the
45
Administrative Agent for the account of each of the Administrative Agent and the
Lenders and, except for the Notes, in sufficient counterparts for the
Administrative Agent and the Lenders, and the Administrative Agent will promptly
distribute to the Lenders their respective Notes and the copies of such other
certificates, legal opinions and documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and/or to issue and/or to participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and each Credit Event:
7.1. CORPORATE STATUS, ETC. Each of the Borrower and its
Subsidiaries (i) is a duly organized or formed and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its formation and has the corporate,
partnership or limited liability company power and authority, as applicable, to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage, and (ii) has duly qualified and is authorized
to do business in all jurisdictions where it is required to be so qualified
except where the failure to be so qualified would not have a Material Adverse
Effect.
7.2. SUBSIDIARIES. Annex II hereto lists, as of the date hereof,
each Subsidiary of the Borrower (and the direct and indirect ownership interest
of the Borrower therein).
7.3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate or other organizational power and authority to execute, deliver and
carry out the terms and provisions of the Credit Documents to which it is party
and has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of the Credit Documents to
which it is party. Each Credit Party has duly executed and delivered each Credit
Document to which it is party and each Credit Document to which it is party
constitutes the legal, valid and binding agreement or obligation of such Credit
Party enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.4. NO VIOLATION. Neither the execution, delivery and performance
by any Credit Party of the Credit Documents to which it is party nor compliance
with the terms and provisions thereof (i) will contravene any provision of any
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality applicable to such Credit Party or its
properties and assets, (ii) will conflict with or result in any breach of, any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien (other than the Liens created pursuant to the Security
Documents) upon any of the property or assets of such Credit Party pursuant to
the terms of any promissory note, bond, debenture, indenture, mortgage, deed of
trust, credit or loan agreement, or any other material agreement or other
instrument, to which such Credit Party is a party or by which it or any of its
property or assets are bound or to which it may be subject, or (iii) will
violate any provision of the certificate or articles of incorporation, code of
regulations or by-laws, or other charter documents of such Credit Party.
7.5. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by any Credit Party of
any Credit Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Credit Document to which any Credit
Party is a party, EXCEPT for the filing and recording of financing statements
and other documents necessary in order to perfect the Liens created by the
Security Documents.
7.6. LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened with respect to the Borrower or
any of its Subsidiaries (i) that have, or could reasonably be expected to have,
a Material Adverse Effect, or (ii) which question the validity or enforceability
of any of the Credit
46
Documents, or of any action to be taken by the Borrower or any of the other
Credit Parties pursuant to any of the Credit Documents.
7.7. USE OF PROCEEDS; MARGIN REGULATIONS. (a) The use of proceeds
of any Borrowing shall be utilized to support working capital needs, to
repurchase Public Notes (subject to the provisions of section 9.11), to
refinance existing Indebtedness (in the case of Borrowings on the Closing Date)
and otherwise be utilized for lawful purposes not inconsistent with the
requirements of this Agreement.
(b) No part of the proceeds of any Credit Event will be used
directly or indirectly to purchase or carry Margin Stock, or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock, in violation
of any of the provisions of Regulation T, U or X of the Board of Governors of
the Federal Reserve System. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. At
no time would more than 25% of the value of the assets of the Borrower or of the
Borrower and its consolidated Subsidiaries that are subject to any "arrangement"
(as such term is used in section 221.2(g) of such Regulation U) hereunder be
represented by Margin Stock.
7.8. FINANCIAL STATEMENTS, ETC. (a) The audited consolidated
balance sheets of the Borrower as of December 31, 2000, 2001 and 2002 and the
audited consolidated statements of operations and cash flows for the fiscal
years ended December 31, 2000, 2001 and 2002 were prepared in accordance with
Regulation S-X and fairly present the financial position of the Borrower as of
each such date and its results of operations for each such period. The Borrower
and its Subsidiaries did not have, as of the date of the latest Financial
Statements referred to above, and will not have as of the Closing Date after
giving effect to the incurrence of Loans hereunder, any material or significant
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto in accordance with GAAP and which in any such
case is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries.
(b) The Borrower has received consideration which is the
reasonable equivalent value of the obligations and liabilities that the Borrower
has incurred to the Administrative Agent and the Lenders. The Borrower now has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage and is now solvent and able to
pay its debts as they mature and the Borrower, as of the Closing Date, owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay the Borrower's debts; and the
Borrower is not entering into the Credit Documents with the intent to hinder,
delay or defraud its creditors. For purposes of this section 7.8(b), "DEBT"
means any liability on a claim, and "CLAIM" means (x) right to payment whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured; or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(c) The Borrower has delivered or caused to be delivered to the
Lenders prior to the execution and delivery of this Agreement (i) a copy of the
Borrower's Report on Form 10-K as filed (without Exhibits) with the SEC for its
fiscal year ended December 31, 2002, which contains a general description of the
business and affairs of the Borrower and its Subsidiaries, (ii) the Borrower
presentation dated July 2003 prepared by the Lead Arranger (with assistance from
the Borrower) which contains information with respect to the business,
properties and operations of the Borrower and its Subsidiaries (the "BORROWER
PRESENTATION"), and (iii) the Financial Projections. To the best of the
Borrower's knowledge, as of the date thereof and as of the Closing Date, the
information contained in the Borrower Presentation provided by the Borrower
relating to the Borrower and its Affiliates is correct in all material respects
and does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
materially misleading in the light of the circumstances under which such
statements were made. The foregoing representations as to the Borrower
Presentation are made on the express understanding that (x) the only
representations and warranties concerning the Financial Projections included in
the Borrower Presentation are those representations and warranties specifically
set forth below, (y) the summary description in the Borrower Presentation of the
principal terms and conditions of the Credit Documents is qualified in its
entirety by reference to the actual terms and conditions of this Agreement and
the other Credit Documents, and (z) the Borrower makes no representation or
warranty concerning any estimates or
47
projections included in the Borrower Presentation except for those
representations and warranties concerning the Financial Projections which are
specifically set forth below. The Financial Projections were prepared on behalf
of the Borrower in good faith after taking into account historical levels of
business activity of the Borrower and its Subsidiaries, historical financial
information, known trends, including general economic trends, and all other
information, assumptions and estimates considered by management of the Borrower
and its Subsidiaries to be pertinent thereto; PROVIDED, that no representation
or warranty is made as to the impact of future general economic conditions or as
to whether the Borrower's projected consolidated results as set forth in the
Financial Projections will actually be realized. No facts are known to the
Borrower at the Closing Date which, if reflected in the Financial Projections,
would result in a Material Adverse Effect.
7.9. NO MATERIAL ADVERSE CHANGE. Since December 31, 2002, there has
been no change in the condition, business, affairs or prospects of the Borrower
and its Subsidiaries taken as a whole, or their properties and assets considered
as an entirety, EXCEPT FOR changes none of which, individually or in the
aggregate, has had or could reasonably be expected to have, a Material Adverse
Effect.
7.10. TAX RETURNS AND PAYMENTS. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries has established on its books such charges,
accruals and reserves in respect of taxes, assessments, fees and other
governmental charges for all fiscal periods as are required by GAAP. The
Borrower knows of no proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Borrower and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
7.11. TITLE TO PROPERTIES, ETC. The Borrower and each of its
Subsidiaries has good and marketable title, in the case of real property, and
good title (or valid Leaseholds, in the case of any leased property), in the
case of all other property, to all of its properties and assets free and clear
of Liens other than Permitted Liens. The interests of the Borrower and each of
its Subsidiaries in the properties reflected in the most recent balance sheet
referred to in section 7.8, taken as a whole, were sufficient, in the judgment
of the Borrower, as of the date of such balance sheet for purposes of the
ownership and operation of the businesses conducted by the Borrower and such
Subsidiaries.
7.12. LAWFUL OPERATIONS, ETC. Except for known situations or
incidents which are reserved for on the most recent consolidated balance sheet
referred to in section 7.8 or which, if not so reserved, could not reasonably be
expected to have a Material Adverse Effect, the Borrower and each of its
Subsidiaries is in full compliance with all material requirements imposed by
law, whether federal or state, including (without limitation) Environmental Laws
and zoning ordinances.
7.13. ENVIRONMENTAL MATTERS. (a) The Borrower and each of its
Subsidiaries is in compliance with all Environmental Laws governing its
business, except to the extent that any such failure to comply (together with
any resulting penalties, fines or forfeitures) would not reasonably be expected
to have a Material Adverse Effect. All licenses, permits, registrations or
approvals required for the business of the Borrower and each of its Subsidiaries
under any Environmental Law have been secured and the Borrower and each of its
Subsidiaries is in substantial compliance therewith, except for such licenses,
permits, registrations or approvals the failure to secure or to comply therewith
is not reasonably likely to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries has received written notice, or otherwise knows,
that it is in any respect in noncompliance with, breach of or default under any
Environmental Laws, and no event has occurred and is continuing which, with the
passage of time or the giving of notice or both, would constitute noncompliance,
breach of or default thereunder, except in each such case, such noncompliance,
breaches or defaults as would not reasonably be expected to, in the aggregate,
have a Material Adverse Effect. There are no Environmental Claims pending or, to
the best knowledge of the Borrower, threatened wherein an unfavorable decision,
ruling or finding would reasonably be expected to have a Material Adverse
Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any such Real
48
Property, in each case where such occurrence or event is not in compliance with
Environmental Laws and is reasonably likely to have a Material Adverse Effect.
7.14. COMPLIANCE WITH ERISA. Compliance by the Borrower and each of
its Subsidiaries with the provisions hereof and Credit Events contemplated
hereby will not involve any prohibited transaction within the meaning of ERISA
or section 4975 of the Code. The Borrower and each of its Subsidiaries, (i) has
fulfilled all obligations under minimum funding standards of ERISA and the Code
with respect to each Plan that is not a Multiemployer Plan or a Multiple
Employer Plan, (ii) has satisfied all respective contribution obligations in
respect of each Multiemployer Plan and each Multiple Employer Plan, (iii) is in
compliance in all material respects with all other applicable provisions of
ERISA and the Code with respect to each Plan, each Multiemployer Plan and each
Multiple Employer Plan, and (iv) has not incurred any liability under the Title
IV of ERISA to the PBGC with respect to any Plan, any Multiemployer Plan, any
Multiple Employer Plan, or any trust established thereunder. No Plan or trust
created thereunder has been terminated, and there have been no Reportable
Events, with respect to any Plan or trust created thereunder or with respect to
any Multiemployer Plan or Multiple Employer Plan, which termination or
Reportable Event will or could result in the termination of such Plan,
Multiemployer Plan or Multiple Employer Plan or give rise to a material
liability of the Borrower or any ERISA Affiliate in respect thereof. Neither the
Borrower nor any ERISA Affiliate is at the date hereof, or has been at any time
within the two years preceding the date hereof, an employer required to
contribute to any Multiemployer Plan or Multiple Employer Plan, or a
"contributing sponsor" (as such term is defined in section 4001 of ERISA) in any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any ERISA
Affiliate has any contingent liability with respect to any post-retirement
"welfare benefit plan" (as such term is defined in ERISA) except as has been
disclosed to the Lenders in writing.
7.15. INTELLECTUAL PROPERTY, ETC. The Borrower and each of its
Subsidiaries has obtained or has the right to use all material patents,
trademarks, service marks, trade names, copyrights, licenses and other rights
with respect to the foregoing necessary for the present and planned future
conduct of its business, without any known conflict with the rights of others,
EXCEPT for such patents, trademarks, service marks, trade names, copyrights,
licenses and rights, the loss of which, and such conflicts, which in any such
case individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
7.16. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any of
its Subsidiaries is subject to regulation with respect to the creation or
incurrence of Indebtedness under the Investment Company Act of 1940, as amended,
the ICC Termination Act of 1995, as amended, the Federal Power Act, as amended,
the Public Utility Holding Company Act of 1935, as amended, or any applicable
state public utility law.
7.17. EXISTING INDEBTEDNESS. Annex III sets forth a true and
complete list, as of the date or dates set forth therein, of all Indebtedness of
the Borrower and each of its Subsidiaries, on a consolidated basis, which (i)
has an outstanding principal amount of at least $1,000,000, or may be incurred
pursuant to existing commitments or lines of credit, or (ii) is secured by any
Lien on any property of the Borrower or any Subsidiary, and which will be
outstanding on the Closing Date after giving effect to any Borrowing hereunder
which is expected to be made on the Closing Date, other than the Indebtedness
created under the Credit Documents (all such Indebtedness, whether or not in a
principal amount meeting such threshold and required to be so listed on Annex
III, herein the "EXISTING INDEBTEDNESS"). The Borrower has provided to the
Administrative Agent prior to the date of execution hereof true and complete
copies (or summary descriptions) of all agreements and instruments governing the
Indebtedness listed on Annex III (the "EXISTING INDEBTEDNESS AGREEMENTS").
7.18. BURDENSOME CONTRACTS; LABOR RELATIONS. Neither the Borrower
nor any of its Subsidiaries (i) is subject to any burdensome contract,
agreement, corporate restriction, judgment, decree or order, (ii) is a party to
any labor dispute affecting any bargaining unit or other group of employees
generally, (iii) is subject to any material strike, slow down, workout or other
concerted interruptions of operations by employees of the Borrower or any
Subsidiary, whether or not relating to any labor contracts, (iv) is subject to
any significant pending or, to the knowledge of the Borrower, threatened, unfair
labor practice complaint, before the National Labor Relations Board, and (v) is
subject to any significant pending or, to the knowledge of the Borrower,
threatened, grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement, (vi) is subject to any significant
pending or, to the knowledge of the Borrower, threatened, significant strike,
labor dispute, slowdown or stoppage, or (vii) is, to the knowledge of the
Borrower, involved or subject to any union representation organizing or
49
certification matter with respect to the employees of the Borrower or any of its
Subsidiaries, EXCEPT (with respect to any matter specified in any of the above
clauses), for such matters as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
7.19. SECURITY INTERESTS. Until terminated in accordance with the
terms thereof, each of the Security Documents creates, as security for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and Lien on all of the Collateral subject thereto from time
to time, in favor of the Collateral Agent for the benefit of the Secured
Creditors referred to in the Security Documents, superior to and prior to the
rights of all third Persons and subject to no other Liens, EXCEPT that the
Collateral under the Security Documents may be subject to Permitted Liens. No
filings or recordings are required in order to perfect the security interests
created under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made, or for
which satisfactory arrangements have been made, upon or prior to the execution
and delivery thereof. All recording, stamp, intangible or other similar taxes
required to be paid by any Person under applicable legal requirements or other
laws applicable to the property encumbered by the Security Documents in
connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement thereof have been paid.
7.20. INDENTURE. No default or event of default exists, nor will any
such event of default or default exist under the Indenture (or any other Public
Note Document) immediately after the making of any Loan or other extension of
credit hereunder. The Indebtedness created under this Agreement constitutes and
at all times will constitute "Designated Senior Debt" and "Permitted Debt" (each
as defined in the Indenture).
7.21. TRUE AND COMPLETE DISCLOSURE. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to the Administrative Agent or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated herein, other than the Borrower Presentation and the
Financial Projections (as to which representations are made only as provided in
section 7.8), is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of such Person in writing to any Lender will
be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided, except that any such future information consisting of
financial projections prepared by the Borrower is only represented herein as
being based on good faith estimates and assumptions believed by such Persons to
be reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
materially from the projected results.
SECTION 8. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Effective Date and
thereafter so long as this Agreement is in effect and until such time as the
Total Commitment has been terminated, no Notes or Letters of Credit remain
outstanding and the Loans, together with interest, Fees and all other
Obligations incurred hereunder and under the other Credit Documents, have been
paid in full:
8.1. REPORTING REQUIREMENTS. The Borrower will furnish to the
Administrative Agent and each Lender (except with respect to the information to
be provided in paragraph (d) below, which information shall be provided to a
Lender by the Administrative Agent upon request therefor):
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Borrower, the
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such fiscal year and the related consolidated statements of
income, of stockholders' equity and of cash flows for such fiscal year, in each
case setting forth comparative figures for the preceding fiscal year, all in
reasonable detail and accompanied by the opinion with respect to such
consolidated financial statements of independent public accountants of
recognized national standing selected by the Borrower, which opinion shall be
unqualified and shall (i) state that such accountants audited such consolidated
financial statements in accordance with generally accepted auditing standards,
that such accountants believe that such audit provides a reasonable basis for
their opinion, and that in their opinion such consolidated financial statements
present fairly, in all material
50
respects, the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the consolidated
results of their operations and cash flows for such fiscal year in conformity
with generally accepted accounting principles, or (ii) contain such statements
as are customarily included in unqualified reports of independent accountants in
conformity with the recommendations and requirements of the American Institute
of Certified Public Accountants (or any successor organization).
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower, the unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such quarterly period and the related unaudited consolidated
statements of income and of cash flows for such quarterly period and/or for the
fiscal year to date, and setting forth, in the case of such unaudited
consolidated statements of income and of cash flows, comparative figures for the
related periods in the prior fiscal year, and which shall be certified on behalf
of the Borrower by the Chief Financial Officer or other Authorized Officer of
the Borrower, subject to changes resulting from normal year-end audit
adjustments.
(c) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the delivery
of the financial statements provided for in sections 8.1(a) and (b), a
certificate on behalf of the Borrower of the Chief Financial Officer or other
Authorized Officer of the Borrower to the effect that, to the best knowledge of
the Borrower, no Default or Event of Default exists or, if any Default or Event
of Default does exist, specifying the nature and extent thereof and the actions
the Borrower proposes to take with respect thereto, which certificate shall set
forth the calculations required to establish compliance with the provisions of
sections 9.7, 9.8 and 9.9 of this Agreement, and in the event the compliance
with any such covenant is being calculated on a Pro Forma Basis, such
certificate shall contain a certification that the financial items presented on
a Pro Forma Basis have been derived in accordance with the definition of Pro
Forma Basis and the relevant assumptions made in such determination.
(d) BUDGETS AND FORECASTS. Not later than 60 days following the
commencement of any fiscal year of the Borrower and its Subsidiaries, a
consolidated budget in reasonable detail for each of the four fiscal quarters of
such fiscal year, as customarily prepared by management for its internal use,
setting forth the forecasted balance sheet, income statement, operating cash
flows and capital expenditures of the Borrower and its Subsidiaries for the
period covered thereby.
(e) NOTICE OF DEFAULT, LITIGATION OR CERTAIN MATTERS INVOLVING
MAJOR CUSTOMERS OR SUPPLIERS. Promptly, and in any event within three Business
Days, in the case of clause (i) below, or 10 days, in the case of clause (ii) or
(iii) below, after the Borrower or any of its Subsidiaries obtains knowledge
thereof, notice of
(i) the occurrence of any event which
constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof
and what action the Borrower proposes to take with respect
thereto,
(ii) the commencement of, or any other material
development concerning, any litigation or governmental or
regulatory proceeding pending against the Borrower or any of
its Subsidiaries, if the same involves (in the Borrower's
reasonable judgment) any substantial likelihood of having a
Material Adverse Effect, and
(iii) if the same involves (in the Borrower's
reasonable judgment) any substantial likelihood of having a
Material Adverse Effect, any significant adverse change in the
Borrower's or any Subsidiary's relationship with, or any
significant event or circumstance which is in the Borrower's
reasonable judgment likely to adversely affect the Borrower's
or any Subsidiary's relationship with, (A) any customer (or
related group of customers) representing more than 10% of the
Borrower's consolidated revenues during its most recent fiscal
year, or (B) any supplier which is material to the operations
of the Borrower and its Subsidiaries considered as an
entirety.
(f) ERISA. Promptly, and in any event within 10 days after the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows of the
occurrence of any of the following, the Borrower will deliver to each of the
Lenders a certificate on behalf of the Borrower of an Authorized Officer of the
Borrower setting forth the full details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is
51
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto:
(i) that a Reportable Event has occurred with
respect to any Plan;
(ii) the institution of any steps by the
Borrower, any ERISA Affiliate, the PBGC or any other Person to
terminate any Plan;
(iii) the institution of any steps by the Borrower
or any ERISA Affiliate to withdraw from any Plan;
(iv) the institution of any steps by the Borrower
or any Subsidiary to withdraw from any Multiemployer Plan or
Multiple Employer Plan, if such withdrawal could result in
withdrawal liability (as described in Part 1 of Subtitle E of
Title IV of ERISA) in excess of $5,000,000;
(v) a non-exempt "prohibited transaction" within
the meaning of section 406 of ERISA in connection with any
Plan;
(vi) that a Plan has an Unfunded Current
Liability exceeding $5,000,000;
(vii) any material increase in the contingent
liability of the Borrower or any Subsidiary with respect to
any post-retirement welfare liability; or
(viii) the taking of any action by, or the
threatening of the taking of any action by, the Internal
Revenue Service, the Department of Labor or the PBGC with
respect to any of the foregoing.
(g) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within
10 Business Days after, an officer of the Borrower or any of its Subsidiaries
obtains knowledge thereof, notice of one or more of the following environmental
matters: (i) any pending or threatened material Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or operated by
the Borrower or any of its Subsidiaries; (ii) any condition or occurrence on or
arising from any Real Property owned or operated by the Borrower or any of its
Subsidiaries that (A) results in material noncompliance by the Borrower or any
of its Subsidiaries with any applicable Environmental Law or (B) would
reasonably be expected to form the basis of a material Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real Property; (iii)
any condition or occurrence on any Real Property owned, leased or operated by
the Borrower or any of its Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any material restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and (iv) the
taking of any material removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency. All such
notices shall describe in reasonable detail the nature of the Environmental
Claim, the Borrower's or such Subsidiary's response thereto and the potential
exposure in dollars of the Borrower and its Subsidiaries with respect thereto.
(h) SEC REPORTS AND REGISTRATION STATEMENTS. Promptly after
transmission thereof or other filing with the SEC, copies of all registration
statements (other than the exhibits thereto and any registration statement on
Form S-8 or its equivalent) and all annual, quarterly or current reports that
the Borrower or any of its Subsidiaries files with the SEC on Form 10-K, 10-Q or
8-K (or any successor forms).
(i) ANNUAL AND QUARTERLY REPORTS, PROXY STATEMENTS AND OTHER
REPORTS DELIVERED TO STOCKHOLDERS GENERALLY. Promptly after transmission thereof
to its stockholders, copies of all annual, quarterly and other reports and all
proxy statements that the Borrower furnishes to its stockholders generally.
52
(j) PRESS RELEASES. Promptly after the release thereof to any news
organization or news distribution organization, copies of any press releases and
other similar statements intended to be made available generally by the Borrower
or any of its Subsidiaries to the public concerning material developments
relating to the Borrower or any of its Subsidiaries.
(k) OTHER INFORMATION. With reasonable promptness, such other
information or documents (financial or otherwise) relating to the Borrower or
any of its Subsidiaries as any Lender may reasonably request from time to time.
8.2. BOOKS, RECORDS AND INSPECTIONS. (a) The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account,
in which full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower or such Subsidiaries, as the case
may be, in accordance with GAAP.
(b) The Borrower will permit officers and designated
representatives of the Administrative Agent or the Collateral Agent, upon at
least two Business Days' notice to the Chief Financial Officer of the Borrower,
to visit and inspect any of the properties or assets of the Borrower and any of
its Subsidiaries in whomsoever's possession (but only to the extent the Borrower
or such Subsidiary has the right to do so to the extent in the possession of
another Person), to examine the books of account, records, reports and other
papers of the Borrower and any of its Subsidiaries, and make copies thereof and
take extracts therefrom, and to discuss the affairs, finances and accounts of
the Borrower and of any of its Subsidiaries with, and be advised as to the same
by, its and their officers and independent accountants and independent
actuaries, if any (and by this provision the Borrower authorizes such
independent accountants and actuaries to discuss the affairs, finances and
accounts of the Borrower and any of its Subsidiaries), all at such reasonable
times and intervals and to such reasonable extent as the Administrative Agent or
the Collateral Agent may request. The Administrative Agent and the Collateral
Agent may (at their own initiative), and shall (if so instructed by the Required
Lenders), exercise their rights under this section 8.2(b) from time to time. In
any event, the Administrative Agent and the Collateral Agent will promptly
furnish the Lenders with copies of any material documentation obtained by them
during the course of any inspection, examination or discussions pursuant to this
section 8.2(b). If any Lender requests copies of any other documentation so
obtained by the Administrative Agent or the Collateral Agent, the Administrative
Agent or the Collateral Agent, as applicable, will promptly furnish copies
thereof to all of the Lenders.
(c) During any period in which an Event of Default shall have
occurred and be continuing, any Lender (or group of Lenders whose investments
are under management by a common investment advisor or one or more affiliated
investment advisors, or who are otherwise Affiliates of each other) whose
Commitments or outstanding Loans exceed $5,000,000, may itself, in coordination
with the Administrative Agent, exercise any or all of the rights afforded to the
Administrative Agent as specified in section 8.2(b).
8.3. INSURANCE. (a) The Borrower will, and will cause each of its
Subsidiaries to, (i) maintain insurance coverage by such insurers and in such
forms and amounts and against such risks as are generally consistent with the
insurance coverage maintained by the Borrower and its Subsidiaries at the date
hereof, and (ii) forthwith upon the Administrative Agent's written request
(which the Administrative Agent may make on its own initiative and shall make if
so requested by the Required Lenders), furnish to the Administrative Agent (who
shall promptly distribute copies to the Lenders) such information about such
insurance as the Administrative Agent may from time to time reasonably request,
which information shall be prepared in form and detail satisfactory to the
Administrative Agent and certified by an Authorized Officer of the Borrower.
(b) The Borrower will, and will cause each of its Subsidiaries
which is a Credit Party to, at all times keep their respective property which is
subject to the Lien of any Security Document insured in favor of the Collateral
Agent, and all policies or certificates (or certified copies thereof) with
respect to such insurance (and any other insurance maintained by the Borrower or
any such Subsidiary) (i) shall be endorsed to the Collateral Agent's
satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as loss payee (with respect to
Collateral) or, to the extent permitted by applicable law, as an additional
insured), (ii) shall state that such insurance policies shall not be canceled
without 30 days' prior written notice thereof (or 10 days' prior written notice
in the case of cancellation for the non-payment of premiums) by the respective
insurer to the Collateral Agent, (iii) shall provide that the respective
insurers irrevocably waive any and all rights of
53
subrogation with respect to the Collateral Agent and the Lenders, and (iv) shall
in the case of any such certificates or endorsements in favor of the Collateral
Agent, be delivered to or deposited with the Collateral Agent. In no event shall
the Borrower be required to deposit the actual insurance policies with the
Collateral Agent. The Administrative Agent shall deliver copies of any
certificates of insurance to a Lender upon such Lender's reasonable request.
(c) If the Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this section 8.3, or if the Borrower
or any of its Subsidiaries shall fail to so endorse and deliver or deposit all
endorsements or certificates with respect thereto, the Administrative Agent
and/or the Collateral Agent shall have the right (but shall be under no
obligation), upon prior written notice to the Borrower, to procure such
insurance and the Borrower agrees to reimburse the Administrative Agent or the
Collateral Agent, as the case may be, on demand, for all costs and expenses of
procuring such insurance.
8.4. PAYMENT OF TAXES AND CLAIMS. The Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, prior to the date
on which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; PROVIDED that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that the Borrower will not be considered to be in default of any of the
provisions of this sentence if the Borrower or any Subsidiary fails to pay any
such amount which, individually or in the aggregate, is immaterial. Without
limiting the generality of the foregoing, the Borrower will, and will cause each
of its Subsidiaries to, pay in full all of its wage obligations to its employees
in accordance with the Fair Labor Standards Act (29 U.S.C. sections 206-207) and
any comparable provisions of applicable law.
8.5. CORPORATE FRANCHISES. The Borrower will do, and will cause
each of its Subsidiaries to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
authority, PROVIDED that nothing in this section 8.5 shall be deemed to prohibit
(i) any transaction permitted by section 9.2; (ii) the termination of existence
of any Subsidiary if (A) the Borrower determines that such termination is in its
best interest and (B) such termination is not adverse in any material respect to
the Lenders; or (iii) the loss of any rights, authorities or franchises if the
loss thereof, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
8.6. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each of its Subsidiaries to, ensure that its material properties and equipment
used or useful in its business in whomsoever's possession they may be, in good
repair, working order and condition, ordinary wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements, thereto, to the extent and in the manner customary for
companies in similar businesses.
8.7. COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply, in all material respects, with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, other than those the
noncompliance with which would not have, and which would not be reasonably
expected to have, a Material Adverse Effect.
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limitation of the
covenants contained in section 8.7 hereof,
(a) The Borrower will comply, and will cause each of its
Subsidiaries to comply, in all material respects, with all
Environmental Laws applicable to the ownership, lease or use of all
Real Property now or hereafter owned, leased or operated by the
Borrower or any of its Subsidiaries, and will promptly pay or cause to
be paid all costs and expenses incurred in connection with such
compliance, EXCEPT to the extent that such compliance with
Environmental Laws is being contested in good faith and by appropriate
proceedings and for which adequate reserves have been established to
the extent required by
54
GAAP, and an adverse outcome in such proceedings is not reasonably
expected to have a Material Adverse Effect.
(b) The Borrower will keep or cause to be kept, and will
cause each of its Subsidiaries to keep or cause to be kept, all such
Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws which are not permitted under section 9.3.
(c) Neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous
Materials on any Real Property now or hereafter owned, leased or
operated by the Borrower or any of its Subsidiaries or transport or
permit the transportation of Hazardous Materials to or from any such
Real Property other than in compliance with applicable Environmental
Laws and in the ordinary course of business, except for such
noncompliance as would not have, and which would not be reasonably
expected to have, a Material Adverse Effect.
(d) If required to do so under any applicable order of
any governmental agency, the Borrower will undertake, and cause each of
its Subsidiaries to undertake, any clean up, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from
any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries in accordance with, in all material respects, the
requirements of all applicable Environmental Laws and in accordance
with, in all material respects, such orders of all governmental
authorities, except to the extent that the Borrower or such Subsidiary
is contesting such order in good faith and by appropriate proceedings
and for which adequate reserves have been established to the extent
required by GAAP.
(e) At the written request of the Administrative Agent or
the Required Lenders, which request shall specify in reasonable detail
the basis therefor, at any time and from time to time after the Lenders
receive notice under section 8.1(g) for any Environmental Claim
involving potential expenditures by the Borrower or any of its
Subsidiaries in excess of $5,000,000 in the aggregate for any Real
Property, the Borrower will provide, at its sole cost and expense, an
environmental site assessment report concerning any such Real Property
now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, prepared by an environmental consulting firm
reasonably acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the potential cost of
any removal or a remedial action in connection with any Hazardous
Materials on such Real Property. If the Borrower fails to provide the
same within 90 days after such request was made, the Administrative
Agent may order the same, and the Borrower shall grant and hereby
grants, to the Administrative Agent and the Lenders and their agents,
access to such Real Property and specifically grants the Administrative
Agent and the Lenders an irrevocable non-exclusive license, subject to
the rights of tenants, to undertake such an assessment, all at the
Borrower's expense.
8.9. FISCAL YEARS, FISCAL QUARTERS. If the Borrower shall change
any of its or any of its Subsidiaries' fiscal years or fiscal quarters (other
than the fiscal year or fiscal quarters of a Person which becomes a Subsidiary,
made at the time such Person becomes a Subsidiary to conform to the Borrower's
fiscal year and fiscal quarters), the Borrower will promptly, and in any event
within 30 days following any such change, deliver a notice to the Administrative
Agent and the Lenders describing such change and any material accounting entries
made in connection therewith and stating whether such change will have any
impact upon any financial computations to be made hereunder, and if any such
impact is foreseen, describing in reasonable detail the nature and extent of
such impact. If the Required Lenders determine that any such change will have
any impact upon any financial computations to be made hereunder which is adverse
to the Lenders, the Borrower will, if so requested by the Administrative Agent,
enter into an amendment to this Agreement, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, modifying any
of the financial covenants or related provisions hereof in such manner as the
Required Lenders determine is necessary to eliminate such adverse effect.
8.10. HEDGE AGREEMENTS, ETC. In the event the Borrower or any of its
Subsidiaries determines to enter into a Hedge Agreement it may do so, provided
that (i) the Hedge Agreement does not expose the Borrower or its Subsidiaries to
predominantly speculative risks unrelated to the amount of assets, Indebtedness
or other liabilities intended to be subject to coverage on a notional basis
under all such Hedge Agreements; and (ii) in the case of any
55
Hedge Agreement entered into after the Effective Date with respect to interest
rates, only if the proposed form thereof (including any proposed pricing or
other material terms) has been provided to the Administrative Agent, for its
consideration of any potential intercreditor issues, contemporaneously with the
entry into such Hedge Agreement.
8.11. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY. (a) In
the event that at any time after the Closing Date
(x) the Borrower has any Subsidiary (other than a
Subsidiary that is not a Material Subsidiary and other than a Foreign
Subsidiary as to which section 8.11(b) applies) that is not a party to
the Subsidiary Guaranty, or
(y) an Event of Default shall have occurred and be
continuing and the Borrower has any Subsidiary which is not a party to
the Subsidiary Guaranty,
the Borrower will notify the Administrative Agent in writing of such event,
identifying the Subsidiary in question and referring specifically to the rights
of the Administrative Agent and the Lenders under this section. The Borrower
will, within 30 days following request therefor from the Administrative Agent
(who may give such request on its own initiative or upon request by the Required
Lenders), cause such Subsidiary to deliver to the Administrative Agent, in
sufficient quantities for the Lenders, (i) a joinder supplement, reasonably
satisfactory in form and substance to the Administrative Agent and the Required
Lenders, duly executed by such Subsidiary, pursuant to which such Subsidiary
joins in the Subsidiary Guaranty as a guarantor thereunder, and (ii) resolutions
of the Board of Directors (or similar governing body) of such Subsidiary,
certified by the Secretary or an Assistant Secretary of such Subsidiary as duly
adopted and in full force and effect, authorizing the execution and delivery of
such joinder supplement, or if such Subsidiary is not a corporation, such other
evidence of the authority of such Subsidiary to execute such joinder supplement
as the Administrative Agent may reasonably request. Notwithstanding anything
herein to the contrary, in the event that any Subsidiary of the Borrower is at
any time a guarantor under the Public Note Documents and has not guaranteed the
Obligations hereunder, such Subsidiary shall have executed and delivered a
Subsidiary Guaranty and the Additional Security documents contemplated by
section 8.12 hereof in form and substance acceptable to the Administrative Agent
in its discretion.
(b) Notwithstanding the foregoing provisions of this section 8.11
or the provisions of section 8.12 hereof, the Borrower shall not, unless an
Event of Default shall have occurred and be continuing, be required to pledge
(or cause to be pledged) more than 65% of the stock or other equity interests in
any first tier Foreign Subsidiary, or any of the stock or equity interests in
any first tier Foreign Subsidiaries which alone or when combined or consolidated
with each other would not constitute a Material Subsidiary, or any of the stock
or other equity interests in any other Foreign Subsidiary, or to cause a Foreign
Subsidiary to join in the Subsidiary Guaranty or to become a party to the
Security Agreement or any other Security Document.
8.12. ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) In the event that
at any time after the Closing Date the Borrower or any of its Subsidiaries owns
or holds an interest in any Real Property, assets, stock, securities or any
other property or interest, located within or outside of the United States or
arising out of business conducted from any location within or outside the United
States, which is not at the time included in the Collateral and is not subject
to a Permitted Lien securing Indebtedness (all of the foregoing,
"UNCOLLATERALIZED PROPERTY"), the Borrower will notify the Administrative Agent
in writing of such event, identifying the Uncollateralized Property in question
and referring specifically to the rights of the Administrative Agent and the
Lenders under this section 8.12; PROVIDED that notwithstanding the foregoing,
the Borrower need not notify the Administrative Agent under this section 8.12(a)
of (x) any leasehold interest which is acquired or held by the Borrower or any
Subsidiary unless the same involves a nominal or bargain purchase price option,
or (y) any Uncollateralized Property which at the time is not required to be
included in the Collateral pursuant to section 8.11(b) or the proviso at the end
of section 8.12(b).
(b) The Borrower will, or will cause an applicable Subsidiary to,
within 30 days following request by the Collateral Agent (who may make such
request on its own initiative or upon instructions from the Required Lenders),
grant the Collateral Agent for the benefit of the Secured Creditors (as defined
in the Security Documents) security interests and mortgages or deeds of trust,
pursuant to the Pledge Agreement or other new documentation (each an "ADDITIONAL
SECURITY DOCUMENT") or joinder in any existing Security Document to which it is
not already a party, in all of the Uncollateralized Property as to which the
Administrative Agent has notified the Borrower that the
56
same is required to be included in the Collateral, SUBJECT to obtaining any
required consents from third parties (including third party lessors and
co-venturers) necessary to be obtained for the granting of a Lien on any
particular Uncollateralized Property (with the Borrower hereby agreeing to use,
and to cause its Subsidiaries to use, reasonable best efforts to obtain such
consents), and ALSO SUBJECT to the provisions of section 8.11(b); PROVIDED that
the Borrower shall not be required to cause to be delivered any mortgage or deed
of trust on any Leasehold or other Real Property, or any chattel mortgage or
security agreement covering an aircraft, unless an Event of Default shall have
occurred and be continuing. The Borrower will, or will cause an applicable
Subsidiary to, upon the request of the Collateral Agent, delivered after the
occurrence and during the continuance of an Event of Default, promptly deliver
mortgages, deeds of trust, chattel mortgages and other security agreements
covering any Uncollateralized Property as the Collateral Agent may request.
(c) Each Additional Security Document (i) shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Administrative Agent, which documentation shall in the case of Real Property
owned in fee be accompanied by such Phase I environmental reports or
assessments, a mortgage policy of title insurance (subject to a standard survey
exception), and other supporting documentation requested by and reasonably
satisfactory in form and substance to the Administrative Agent; and (ii) shall
constitute a valid and enforceable perfected Lien upon the interests or
properties so included in the Collateral, superior to and prior to the rights of
all third Persons and subject to no other Liens except those permitted by
section 9.3 or otherwise agreed by the Administrative Agent at the time of
perfection thereof and (in the case of Real Property or interests therein) such
other encumbrances as may be set forth in the mortgage policy, if any, relating
to such Additional Security Document which shall be delivered to the Collateral
Agent together with such Additional Security Document and which shall be
satisfactory in form and substance to the Collateral Agent and the
Administrative Agent. The Borrower, at its sole cost and expense, will cause
each Additional Security Document or instruments related thereto to be duly
recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens created thereby required to
be granted pursuant to the Additional Security Document, and will pay or cause
to be paid in full all taxes, fees and other charges payable in connection
therewith. Furthermore, the Borrower shall cause to be delivered to the
Collateral Agent such opinions of local counsel, appraisals, title insurance,
environmental assessments, consents of landlords, lien waivers from landlords or
mortgagees and other related documents as may be reasonably requested by the
Collateral Agent in connection with the execution, delivery and recording of any
Additional Security Document, all of which documents shall be in form and
substance reasonably satisfactory to the Collateral Agent and the Administrative
Agent, except that no leasehold mortgage or deed of trust, title insurance or
surveys shall be required for any leasehold properties (unless the lessee has a
nominal or bargain purchase option).
(d) The Borrower will, and will cause each of its Subsidiaries to,
at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, and other
assurances or instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Collateral Agent may reasonably
require. If at any time the Collateral Agent determines, based on applicable
law, that all applicable taxes (including, without limitation, mortgage
recording taxes or similar charges) were not paid in connection with the
recordation of any mortgage or deed of trust, the Borrower shall promptly pay
the same upon demand.
(e) The Borrower will if requested by any Lender at any time, in
order to meet any legal requirement applicable to such Lender, provide to the
Collateral Agent and the Lenders, at the sole cost and expense of the Borrower,
appraisals and other supporting documentation relating to any mortgage or deed
of trust delivered as an Additional Security Document hereunder, as specified by
any Lender, meeting the appraisal and other documentation requirements of the
Real Estate Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, or any other legal requirements applicable
to any Lender, which in the case of any such appraisal shall be prepared by one
or more valuation firms of national standing, acceptable to the Required
Lenders, utilizing appraisal standards satisfying such Amendments, Act or other
legal requirements.
(f) For the avoidance of doubt, the Borrower shall have no
obligation to cause to be delivered any survey of any Real Property which is
covered by any mortgage, deed of trust or similar instrument constituting an
Additional Security Document so as to permit a title Borrower to eliminate by
endorsement the "survey exception" to the title policy for such Real Property.
57
(g) Notwithstanding the foregoing provisions of this section 8.12,
in the event the Administrative Agent notifies the Borrower that the Required
Lenders have determined on the basis of an environmental report or assessment
delivered by the Borrower pursuant to the provisions of section 8.12(c) that an
Additional Security Document encumbering any particular Real Property should not
be delivered under this section 8.12, the Borrower shall be relieved of its
obligation in this section 8.12 to deliver or cause to be delivered an
Additional Security Document in the form of a mortgage, deed of trust or similar
instrument covering such Real Property, SUBJECT to any later determination by
the Required Lenders notified to the Borrower by the Administrative Agent that
an Additional Security Document in the form of a mortgage, deed of trust or
similar instrument covering such Real Property should be executed and delivered
hereunder.
(h) As promptly as practicable after the date (i) any Credit Party
has any Collateral located in a jurisdiction as to which the Administrative
Agent shall not previously have received a lien search report listing all
effective UCC financing statements and other Liens filed against such Credit
Party in such jurisdiction and containing copies of all such effective UCC
financing statements and other Lien documents, (ii) any Person first becomes a
Credit Party, or (iii) any UCC financing statement or Security Document is filed
against any Credit Party to perfect security interests granted pursuant to the
Security Agreement or any other Security Document, the Borrower will, at its
expense, cause to be delivered to the Administrative Agent and the Lenders
search reports listing all effective UCC financing statements and other Lien
documents filed against such Person or Credit Party in each applicable
jurisdiction and containing copies of all such effective UCC financing
statements and other Lien documents. In addition, whenever requested by the
Administrative Agent, but not more frequently than once in any 12-month period,
the Borrower will promptly provide the Administrative Agent and the Lenders with
such new or updated title, lien, judgment, patent, trademark and UCC financing
statement searches or reports as to the Borrower or any of its Subsidiaries, or
any Collateral of any Credit Party, as the Administrative Agent may specify to
the Borrower in its request.
(i) The Collateral Agent is authorized, without the consent of any
of the Lenders, to (i) enter into any modification of any Security Document
which the Collateral Agent reasonably believes is required to conform to the
mandatory requirements of local law, or to local customs followed by financial
institutions with respect to similar collateral documents involving property
located in any particular jurisdiction, (ii) in the case of any Security
Document relating to property located in a particular jurisdiction which imposes
a tax with respect to such Security Document based on the amount of the
obligations secured thereby, expressly limit the amount of such secured
obligations which are secured by such property to such amount as, in the
Collateral Agent's good faith judgment, is appropriate so that the amount of
such tax is reasonable in light of the estimated value of the property located
in such jurisdiction, and/or (iii) designate the amount of title insurance
coverage for any title insurance policy provided hereunder in an amount
reasonably believed by the Collateral Agent to be representative of the fair
value of the property covered thereby.
(j) The Borrower will provide the Administrative Agent with
sufficient copies of each Additional Security Document and any additional
supporting documents delivered in connection therewith for distribution of
copies thereof to the Lenders, and the Administrative Agent will promptly so
distribute such copies.
8.13. CASUALTY AND CONDEMNATION. (a) The Borrower will promptly (and
in any event within 10 days) furnish to the Administrative Agent and the Lenders
written notice of any Event of Loss involving any property included in the
Collateral which is reasonably believed to be in excess of $10,000,000.
(b) If any Event of Loss results in Net Cash Proceeds (whether in
the form of insurance proceeds, a condemnation award or otherwise), a portion or
all of which is required to be applied as a prepayment of the Loans or to the
rebuilding or restoration of any affected property pursuant to section 5.2, the
Collateral Agent is authorized to collect such Net Cash Proceeds and, if
received by any Credit Party, the Borrower will, or will cause any applicable
Credit Party, to pay over such Net Cash Proceeds to the Collateral Agent.
8.14. LANDLORD/MORTGAGEE WAIVERS; BAILEE LETTERS. If requested to do
so by the Administrative Agent (who may so request on its own initiative and who
shall so request if required to do so by instructions from the Required
Lenders), the Borrower will promptly (and in any event within 60 days following
any such request) obtain, and thereafter the Borrower will maintain in effect,
(a) lien waivers from landlords and mortgagees having any interest in any Real
Property on which any tangible items of Collateral, having a minimum value as
specified by
58
the Administrative Agent in such request, are located, substantially in the form
provided by, or otherwise reasonably acceptable to, the Administrative Agent,
and (b) bailee letters, substantially in the form provided by, or otherwise
reasonably acceptable to, the Administrative Agent, from Persons unrelated to
any of the Credit Parties who are parties to the Security Agreement to whom any
tangible items of Collateral having a minimum value as specified by the
Administrative Agent in such request, have been delivered for storage, use,
consignment or similar purposes.
8.15. MOST FAVORED COVENANT STATUS. Should the Borrower at any time
after the Effective Date, issue or guarantee any Indebtedness denominated in
Dollars for money borrowed or represented by bonds, notes, debentures or similar
securities in an aggregate amount exceeding $10,000,000, to any lender or group
of lenders acting in concert with one another, or one or more institutional
investors, pursuant to a loan agreement, credit agreement, note purchase
agreement, indenture, guaranty or other similar instrument, which agreement,
indenture, guaranty or instrument, includes affirmative or negative business or
financial covenants (or any events of default or other type of restriction which
would have the practical effect of any affirmative or negative business or
financial covenant, including, without limitation, any "put" or mandatory
prepayment of such Indebtedness upon the occurrence of a "change of control")
which are applicable to the Borrower, other than those set forth herein or in
any of the other Credit Documents, the Borrower shall promptly so notify the
Administrative Agent and the Lenders and, if the Administrative Agent shall so
request by written notice to the Borrower (after a determination has been made
by the Required Lenders that any of the above-referenced documents or
instruments contain any such provisions, which either individually or in the
aggregate, are more favorable to the holders of such unsecured Indebtedness than
any of the provisions set forth herein), the Borrower, the Administrative Agent
and the Lenders shall promptly amend this Agreement to incorporate some or all
of such provisions, in the discretion of the Administrative Agent and the
Required Lenders, into this Agreement and, to the extent necessary and
reasonably desirable to the Administrative Agent and the Required Lenders, into
any of the other Credit Documents, all at the election of the Administrative
Agent and the Required Lenders.
8.16. SENIOR DEBT. The Borrower will at all times ensure that (i)
the claims of the Lenders in respect of the Obligations of the Borrower will in
all respects rank prior to the claims of every unsecured creditor of the
Borrower, and (ii) any Indebtedness of the Borrower which is subordinated in any
manner to the claims of any other creditor of the Borrower will be subordinated
in like manner to such claims of the Lenders.
8.17. CERTAIN SUBSIDIARIES. Notwithstanding anything herein to the
contrary, the Borrower shall cause each of OMG Acquisition Holdings, Inc., OMG
Acquisition Holdings, Inc. II, OMG KG Holdings, Inc. and dmc(2) Electronic
Components Corporation, each a Delaware corporation (each an "EXCLUDED
SUBSIDIARY") to dissolve no later than 90 days after the Closing Date. In the
event that the Company fails to dissolve any such Excluded Subsidiary on or
before 90 days after the Closing Date, the Borrower shall cause such Excluded
Subsidiary to become a party to the Guaranty and the Security Documents
contemplated by sections 8.11 and 8.12 hereof. The Borrower hereby represents
and warrants that the Excluded Subsidiaries, in the aggregate, do not have
assets in excess of $5,000,000 or liabilities on the date hereof (other than
assets owing by or liabilities owed to a Subsidiary), and covenants and agrees
that the Excluded Subsidiaries shall not have any assets in excess of $5,000,000
or liabilities on and after the date hereof (other than assets owing by or
liabilities owed to a Subsidiary).
SECTION 9. NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Effective Date and
thereafter for so long as this Agreement is in effect and until such time as the
Total Commitment has been terminated, no Notes or Letters of Credit remain
outstanding and the Loans, together with interest, Fees and all other
Obligations incurred hereunder and under the other Credit Documents, have been
paid in full:
9.1. CHANGES IN BUSINESS. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries, would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the Effective Date.
9.2. CONSOLIDATION, MERGER, ACQUISITIONS, ASSET SALES, ETC. The
Borrower will not, and will not permit any Subsidiary to, (1) wind up, liquidate
or dissolve its affairs, (2) enter into any transaction of merger or
consolidation, (3) make or otherwise effect any Acquisition, (4) sell or
otherwise dispose of any of its property or
59
assets outside the ordinary course of business, or otherwise make or otherwise
effect any Asset Sale, or (5) agree to do any of the foregoing at any future
time, EXCEPT that the following shall be permitted:
(a) CERTAIN INTERCOMPANY MERGERS, ETC. If no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
(i) the merger, consolidation or amalgamation of
any Subsidiary of the Borrower with or into the Borrower,
PROVIDED the Borrower is the surviving or continuing or
resulting corporation;
(ii) the merger, consolidation or amalgamation of
any Domestic Subsidiary of the Borrower with or into another
Domestic Subsidiary of the Borrower, PROVIDED that the
surviving or continuing or resulting corporation is a Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor and
a Wholly-Owned Subsidiary of the Borrower;
(iii) the merger, consolidation or amalgamation of
any Foreign Subsidiary of the Borrower (other than any which
is the Borrower hereunder) with or into another Foreign
Subsidiary of the Borrower, PROVIDED that the surviving or
continuing or resulting corporation is a Wholly-Owned
Subsidiary of the Borrower;
(iv) the liquidation, winding up or dissolution
of (x) any Wholly-Owned Subsidiary of the Borrower; or (y) any
other Subsidiary of the Borrower in an Asset Sale permitted
under section 9.2(d); and
(v) the transfer or other disposition of any
property by the Borrower to any Wholly-Owned Subsidiary or by
any Subsidiary to the Borrower or any other Wholly-Owned
Subsidiary of the Borrower, regardless of whether such
intercompany transaction would constitute an Asset Sale.
(b) OTHER MERGERS, ETC. INVOLVING THE BORROWER. The Borrower may
consolidate or merge with any other corporation, or sell, transfer or otherwise
dispose of all or substantially all of the property and assets of the Borrower
and its Subsidiaries to any Person, if (i) the surviving, continuing or
resulting corporation of such merger or consolidation (if other than the
Borrower) or the acquiring Person unconditionally assumes the obligations of the
Borrower under the Credit Documents pursuant to an assumption agreement in form
and substance reasonably satisfactory to the Required Lenders, (ii) no Event of
Default has occurred and is continuing or would result therefrom, (iii) no
Change of Control would be occasioned thereby; and (iv) if any such merger or
consolidation is entered into for the purpose of effecting an Acquisition, such
Acquisition is permitted by section 9.2(c).
(c) ACQUISITIONS. If no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Borrower or any
Subsidiary may make any Acquisition which is a Permitted Acquisition, PROVIDED
that all of the conditions contained in the definition of the term Permitted
Acquisition are satisfied.
(d) PERMITTED DISPOSITIONS. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the Borrower or
any of its Subsidiaries may (i) sell any property, land or building (including
any related receivables or other intangible assets) to any Person which is not a
Subsidiary of the Borrower, or (ii) sell the entire capital stock (or other
equity interests) and Indebtedness of any Subsidiary owned by the Borrower or
any other Subsidiary to any Person which is not a Subsidiary of the Borrower, or
(iii) permit any Subsidiary to be merged or consolidated with a Person which is
not an Affiliate of the Borrower, or (iv) consummate any other Asset Sale with a
Person who is not a Subsidiary of the Borrower; PROVIDED that:
(A) the consideration for such transaction
represents fair value (as determined by management of the
Borrower), and at least 80% of such consideration consists of
cash;
(B) the cumulative aggregate consideration for
all such transactions (other than any Exempted Disposition)
completed during any fiscal year does not exceed $25,000,000;
60
(C) in the case of any such transaction
involving consideration in excess of $10,000,000, at least
five Business Days prior to the date of completion of such
transaction the Borrower shall have delivered to the
Administrative Agent an officer's certificate executed on
behalf of the Borrower by an Authorized Officer of the
Borrower, which certificate shall contain (1) a description of
the proposed transaction, the date such transaction is
scheduled to be consummated, the estimated purchase price or
other consideration for such transaction, (2) a certification
that no Default or Event of Default has occurred and is
continuing, or would result from consummation of such
transaction, and (3) which shall (if requested by the
Administrative Agent) include a certified copy of the draft or
definitive documentation pertaining thereto; and
(D) contemporaneously with the completion of
such transaction the Borrower prepays the Loans as and to the
extent required by section 5.2 hereof.
Notwithstanding the foregoing clauses (A) through (D), the
Borrower may in any event dispose of or sell the assets or
divisions comprising the Exempted Dispositions.
(e) LEASES. The Borrower or any of its Subsidiaries may enter into
leases of property or assets not constituting Acquisitions, PROVIDED such leases
are not otherwise in violation of this Agreement.
(f) CAPITAL EXPENDITURES: The Borrower and its Subsidiaries shall
be permitted to make any Consolidated Capital Expenditures, PROVIDED such
Consolidated Capital Expenditures are not otherwise in violation of this
Agreement.
(g) PERMITTED INVESTMENTS. The Borrower and its Subsidiaries shall
be permitted to make the investments permitted pursuant to section 9.5.
To the extent any Collateral is sold, transferred or disposed of as permitted by
this section 9.2 (including without limitation any Exempted Disposition), (i)
such Collateral shall be sold, transferred or disposed of free and clear of the
Liens created by the respective Security Documents; (ii) if such Collateral
includes all of the capital stock of a Subsidiary which is a party to the
Subsidiary Guaranty or whose stock is pledged pursuant to the Pledge Agreement,
such capital stock shall be released from the Pledge Agreement and such
Subsidiary shall be released from the Subsidiary Guaranty; and (iii) the
Administrative Agent and the Collateral Agent shall be authorized to take
actions deemed appropriate by them in order to effectuate the foregoing.
9.3. LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with or without
recourse to the Borrower or any of its Subsidiaries, other than for purposes of
collection of delinquent accounts in the ordinary course of business) or assign
any right to receive income, or file or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, EXCEPT that the foregoing restrictions shall not
apply to:
(a) STANDARD PERMITTED LIENS: the Standard Permitted Liens;
(b) EXISTING LIENS, ETC.: Liens (i) in existence on the Effective
Date which are listed, and the Indebtedness secured thereby and the property
subject thereto on the Effective Date described, in Annex IV, or (ii) arising
out of the refinancing, extension, renewal or refunding of any Indebtedness
secured by any such Liens, PROVIDED that the principal amount of such
Indebtedness is not increased and such Indebtedness is not secured by any
additional assets;
(c) PURCHASE MONEY LIENS: Liens (i) which are placed upon fixed or
capital assets, acquired, constructed or improved by the Borrower or any
Subsidiary, PROVIDED that (A) such Liens secure Indebtedness permitted by
section 9.4(c), (B) such Liens and the Indebtedness secured thereby are incurred
prior to or within 120
61
days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 100% of the
cost of acquiring, constructing or improving such fixed or capital assets; and
(D) such Liens shall not apply to any other property or assets of the Borrower
or any Subsidiary; or (ii) arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any such Liens, PROVIDED that the
principal amount of such Indebtedness is not increased and such Indebtedness is
not secured by any additional assets;
(d) LIENS ON ACQUIRED PROPERTIES: any Lien (i) existing on any
property or asset prior to the acquisition thereof by the Borrower or any
Subsidiary, or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; PROVIDED that (A) such Lien secures Indebtedness permitted by
section 9.4(c), (B) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the
case may be, (C) such Lien shall not attach or apply to any other property or
assets of the Borrower or any Subsidiary, (D) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be; or (ii) arising out of the
refinancing, extension, renewal or refunding of any Indebtedness secured by any
such Liens, PROVIDED that the principal amount of such Indebtedness is not
increased and such Indebtedness is not secured by any additional assets; and
(e) ADDITIONAL LIENS: additional Liens (including Liens securing
Indebtedness permitted pursuant to section 9.4(c)(iii)) covering property of the
Borrower or its Subsidiaries, securing Indebtedness in an aggregate principal
amount not exceeding, at the time of incurrence thereof, $25,000,000 as to all
such Indebtedness.
9.4. INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Borrower or any of its Subsidiaries, EXCEPT:
(a) CREDIT DOCUMENTS: Indebtedness incurred under this Agreement
and the other Credit Documents;
(b) EXISTING INDEBTEDNESS: Existing Indebtedness (including,
without limitation, the Indebtedness of the Borrower under the Public Notes),
and any refinancing, extension, renewal or refunding of any such Existing
Indebtedness, not involving an increase in the principal amount thereof or a
reduction of more than 10% in the remaining weighted average life to maturity
thereof (computed in accordance with standard financial practice);
(c) CERTAIN PRIORITY DEBT: in addition to the Indebtedness which
is permitted by the preceding clauses, the following additional Indebtedness:
(i) Indebtedness consisting of Capital Lease
Obligations of the Borrower and its Subsidiaries,
(ii) Indebtedness consisting of obligations under
Synthetic Leases of the Borrower and its Subsidiaries,
(iii) Indebtedness secured by a Lien referred to
in section 9.3(c) or 9.3(d), and
(iv) other Indebtedness of Subsidiaries of the
Borrower (exclusive of Indebtedness owed pursuant to any of
the Credit Documents, or to the Borrower or a Wholly-Owned
Subsidiary of the Borrower);
PROVIDED that (A) at the time of any incurrence thereof after the date
hereof, and after giving effect thereto, the Borrower would be in
compliance with sections 9.7, 9.8, and 9.9, and no Event of Default
shall have occurred and be continuing or would result therefrom; and
(B) the aggregate outstanding principal amount (using Capitalized Lease
Obligations in lieu of principal amount, in the case of any Capital
Lease, and using the present value, based on the implicit interest
rate, in lieu of principal amount, in the case of any Synthetic Lease)
of Indebtedness permitted by this clause (c), shall not exceed
$30,000,000;
62
(d) INTERCOMPANY DEBT: the following: (i) unsecured Indebtedness
of the Borrower owed to any of its Subsidiaries, PROVIDED such Indebtedness
constitutes Subordinated Indebtedness; and (ii) unsecured Indebtedness of any of
the Borrower's Subsidiaries to the Borrower or to another Subsidiary of the
Borrower, representing loans or advances permitted by section 9.5 hereof
provided that any such intercompany loans which are made by or to Domestic
Subsidiaries are evidenced by promissory notes pledged to the Collateral Agent
pursuant to the Security Documents;
(e) HEDGE AGREEMENTS: Indebtedness of the Borrower and its
Subsidiaries under Hedge Agreements;
(f) GUARANTY OBLIGATIONS: any Guaranty Obligations permitted by
section 9.5; and
(g) ADDITIONAL DEBT OF FOREIGN SUBSIDIARIES: unsecured
Indebtedness not otherwise permitted by the foregoing clauses incurred by
Foreign Subsidiaries in an amount not to exceed at any time $50,000,000.
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, (1) lend
money or credit or make advances to any Person, (2) purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, or other investment in, any Person, (3) create, acquire
or hold any Subsidiary, (4) be or become a party to any joint venture or
partnership, or (5) be or become obligated under any Guaranty Obligations (other
than those which may be created in favor of the Lenders and any other benefitted
creditors under any Designated Hedge Agreements pursuant to the Credit
Documents), EXCEPT:
(a) the Borrower or any of its Subsidiaries may invest in
cash and Cash Equivalents;
(b) any endorsement of a check or other medium of payment
for deposit or collection, or any similar transaction in the normal
course of business;
(c) the Borrower and its Subsidiaries may acquire and
hold receivables owing to them in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(d) investments acquired by the Borrower or any of its
Subsidiaries (i) in exchange for any other investment held by the
Borrower or any such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other investment, or (ii) as a result of a foreclosure by the
Borrower or any of its Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default;
(e) loans and advances to employees for business-related
travel expenses, moving expenses, costs of replacement homes, business
machines or supplies, automobiles and other similar expenses, in each
case incurred in the ordinary course of business;
(f) to the extent not permitted by the foregoing clauses,
the existing loans, advances, investments and guarantees described on
Annex V hereto;
(g) investments of the Borrower and its Subsidiaries in
Hedge Agreements;
(h) existing investments in any Subsidiaries and any
additional investments in any Domestic Subsidiary Guarantor;
(i) intercompany loans and advances made by the Borrower
or any other Subsidiary to a Subsidiary which is both a Subsidiary
Guarantor and a Domestic Subsidiary;
(j) intercompany loans and advances made after the
Closing Date by the Borrower or any Domestic Subsidiary to any Foreign
Subsidiary, PROVIDED (1) no Default under section 10.1(a) or Event of
Default has occurred and be continuing at the time any such loan or
advance is made, and (2) the aggregate principal amount of all such
loans and advances does not exceed $75,000,000 outstanding at any time,
and
63
PROVIDED, FURTHER, that all computations pursuant to this clause (j)
shall be exclusive of (x) loans and advances representing an exchange
or conversion of equity to debt, or other transfer, assumption,
recognition, creation, reclassification or reallocation of equity
and/or debt, which is effected in connection with a reorganization
transaction among some or all of the Borrower's Foreign Subsidiaries,
and on a noncash basis as far as the Borrower is concerned, and (y)
loans and advances made for working capital requirements;
(k) the Acquisitions permitted by section 9.2; and loans,
advances and investments of any Person which are outstanding at the
time such Person becomes a Subsidiary of the Borrower as a result of an
Acquisition permitted by section 9.2, but not any increase in the
amount thereof;
(l) any unsecured Guaranty Obligation incurred by the
Borrower or any Subsidiary with respect to (i) Indebtedness of a
Wholly-Owned Subsidiary of the Borrower which is permitted under
section 9.4 without restriction upon the ability of the Borrower or any
Subsidiary to guarantee the same, or (ii) other obligations of a
Wholly-Owned Subsidiary of the Borrower which are not prohibited by
this Agreement;
(m) advances to any supplier who is not an Affiliate,
consisting of prepayments for raw materials purchased for consumption
or processing in the ordinary course of business and pursuant to
arrangements designed to assure an adequate supply of such raw
materials;
(n) any other loans, advances, investments (whether in
the form of cash or contribution of property, and if in the form of a
contribution of property, such property shall be valued for purposes of
this clause at the fair value thereof as reasonably determined by the
Borrower) and Guaranty Obligations, in or to or for the benefit of, any
corporation, partnership, limited liability company, joint venture or
other business entity, which is not itself a Subsidiary of the Borrower
or owned or controlled by any director, officer or employee of the
Borrower or any of its Subsidiaries, not otherwise permitted by the
foregoing clauses, made after the Closing Date (such loans, advances
and investments and Guaranty Obligations, collectively, "BASKET
INVESTMENTS AND GUARANTEES"), shall be permitted to be incurred if (i)
no Event of Default shall have occurred and be continuing, or would
result therefrom, and (ii) the aggregate cumulative amount of such
Basket Investments and Guarantees (taking into account any repayments
of loans or advances), does not exceed $25,000,000.
9.6. DIVIDENDS AND OTHER RESTRICTED PAYMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, declare or make, or agree
to pay or make, directly or indirectly, any Restricted Payment, EXCEPT:
(a) the Borrower may declare and pay or make dividends or
other distributions with respect to any class of its capital stock
which are payable solely in additional shares of its common stock (or
warrants, options or other rights to acquire additional shares of its
common stock);
(b) any Subsidiary of the Borrower may declare and pay or
make dividends or distributions ratably with respect to its capital
stock;
(c) the Borrower may make Restricted Payments pursuant to
and in accordance with its existing stock option, stock purchase and
other benefit plans of general application to management, directors or
other employees of the Borrower and its Subsidiaries;
(d) the Borrower may, during any fiscal year, declare and
pay cash dividends on its common stock, if immediately prior to and
immediately after giving effect to such action (A) no Default under
section 10.1(a) or Event of Default shall have occurred and be
continuing, (B) the Borrower shall be in compliance with sections 9.7,
9.8 and 9.9, after giving pro forma effect to such action, and (C) the
aggregate amount so expended during such fiscal year is not in excess
of the greater of (x) $15,000,000, or (y) 25% of the Borrower's
year-to-date Consolidated Net Income (if positive) for the portion of
the current fiscal year ending on the last day of the month preceding
the date of payment;
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(e) the Borrower may, during any fiscal year, repurchase
shares of its common stock in open market transactions or privately
negotiated transactions, for cash consideration and for use in
satisfying current and reasonably projected stock option and similar
exercises by employees and/or directors under stock option, stock
grant, stock purchase and similar plans, if immediately prior to and
immediately after giving effect to such action (A) no Default under
section 10.1(a) or Event of Default shall have occurred and be
continuing, and (B) the Borrower shall be in compliance with sections
9.8 and 9.9, after giving pro forma effect to such action.
9.7. CONSOLIDATED LEVERAGE RATIO. The Borrower will not on the last
day of any Testing Period indicated below permit the ratio of (i) the amount of
its Consolidated Total Debt at such time to (ii) its Consolidated EBITDA for its
Testing Period most recently ended (the "LEVERAGE RATIO"), to exceed the ratio
specified below for any Testing Period:
TESTING PERIOD RATIO
Testing Period ended June 30, 2003 5.00 to 1.00
Testing Period ended September 30, 2003 5.00 to 1.00
Testing Period ended December 31, 2003 4.75 to 1.00
Testing Period ended March 31, 2004 4.75 to 1.00
Testing Period ended June 30, 2004 4.75 to 1.00
Testing Period ended September 30, 2004 4.75 to 1.00
Testing Period ended December 31, 2004 4.50 to 1.00
Testing Period ended March 31, 2005 4.50 to 1.00
Testing Period ended June 30, 2005 4.50 to 1.00
Testing Period ended September 30, 2005 4.50 to 1.00
Testing Period ended December 31, 2005 and any Testing Period 4.00 to 1.00
thereafter
PROVIDED, HOWEVER, that the Leverage Ratio shall be calculated based on
Consolidated EBITDA of the Borrower and its Subsidiaries (i) with respect to the
Testing Period ended on June 30, 2003, for the two consecutive fiscal quarters
then ended multiplied by two, (ii) with respect to the Testing Period ending on
September 30, 2003, for the three consecutive fiscal quarters ending on
September 30, 2003 multiplied by four thirds (4/3), and (iii) with respect to
any Testing Period ending thereafter, for the Testing Period most recently
ended.
9.8. FIXED CHARGE COVERAGE RATIO. The Borrower will not permit its
Fixed Charge Coverage Ratio for any Testing Period to be less than (i) on
December 31, 2003, for the period of the two consecutive fiscal quarters then
ended, 1.10 to 1, (ii) on March 31, 2004, for the period of three consecutive
fiscal quarters then ended, 1.10 to 1, (iii) on June 30, 2004 for the period of
four consecutive fiscal quarters then ended, 1.10 to 1 and (iv) for each Testing
Period of four consecutive fiscal quarters thereafter, 1.10 to 1.
9.9. INTEREST COVERAGE RATIO. The Borrower will not permit its
Interest Coverage Ratio for any Testing Period to be less than (i) on September
30, 2003, for the fiscal quarter then ended, 2.25 to 1, (ii) on
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December 31, 2003, for the period of two consecutive fiscal quarters then ended,
2.25 to 1, (iii) on March 31, 2004, for the period of three consecutive fiscal
quarters then ended 2.25 to 1, and (iv) on June 30, 2004 and for each Testing
Period of four consecutive fiscal quarters thereafter, 2.25 to 1.
9.10. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist or become effective, any
"negative pledge" covenant or other agreement, restriction or arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or suffer to exist any Lien upon any
of its property or assets as security for Indebtedness, or (b) the ability of
any such Subsidiary to pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits owned by the
Borrower or any Subsidiary of the Borrower, or pay any Indebtedness owed to the
Borrower or a Subsidiary of the Borrower, or to make loans or advances to the
Borrower or any of the Borrower's other Subsidiaries, or transfer any of its
property or assets to the Borrower or any of the Borrower's other Subsidiaries,
EXCEPT for such restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest, (iv) customary provisions restricting assignment of any licensing
agreement entered into in the ordinary course of business, (v) customary
provisions restricting the transfer or further encumbering of assets subject to
Liens permitted under section 9.3(b) or 9.3(c), (vi) restrictions contained in
the Existing Indebtedness Agreements as in effect on the Effective Date (and any
similar restrictions contained in any agreement governing any refinancing or
refunding thereof not prohibited by this Agreement), (vii) customary
restrictions affecting only a Subsidiary of the Borrower under any agreement or
instrument governing any of the Indebtedness of a Subsidiary permitted pursuant
to 9.4, (viii) restrictions affecting any Foreign Subsidiary of the Borrower
under any agreement or instrument governing any Indebtedness of such Foreign
Subsidiary permitted pursuant to 9.4, and customary restrictions contained in
"comfort" letters and guarantees of any such Indebtedness, (ix) any document
relating to Indebtedness secured by a Lien permitted by section 9.3, insofar as
the provisions thereof limit grants of junior liens on the assets securing such
Indebtedness, and (x) any Operating Lease or Capital Lease, insofar as the
provisions thereof limit grants of a security interest in, or other assignments
of, the related leasehold interest to any other Person.
9.11. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to, make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) or exchange of, or refinance or refund, any
Indebtedness of the Borrower or its Subsidiaries which has an outstanding
principal balance (or Capitalized Lease Obligation, in the case of a Capital
Lease, or present value, based on the implicit interest rate, in the case of a
Synthetic Lease) greater than $1,000,000 (other than the Obligations and
intercompany loans and advances among the Borrower and its Subsidiaries);
PROVIDED that (i) subject to the provisions of section 9.14, the Borrower or any
Subsidiary may refinance or refund any such Indebtedness if the aggregate
principal amount thereof (or Capitalized Lease Obligation, in the case of a
Capital Lease, or present value, based on the implicit interest rate, in the
case of a Synthetic Lease) is not increased and the weighted average life to
maturity thereof (computed in accordance with standard financial practice) is
not reduced by more than 10%, (ii) the Borrower may make a prepayment with
respect to obligations under the Aircraft Lease in connection with the
termination thereof, and (iii) the Borrower may make voluntary or optional
redemptions of, or may acquire, and must subsequently retire) its Public Notes
so long as (A) for the period immediately prior to such prepayment, redemption
or acquisition, and for the 10 calendar days immediately succeeding such
prepayment, redemption or acquisition, the aggregate outstanding principal
amount of Revolving Loans does not exceed $100,000,000, (B) if such prepayment,
redemption or acquisition is made during any Testing Period ending on or before
December 31, 2003, Consolidated EBITDA (on a Pro Forma Basis and calculated in
accordance with the proviso contained in section 9.7) for the fiscal quarters
ending on or after June 30, 2003 and completed prior to the date of such
prepayment, redemption or acquisition and for which financial statements
complying with the requirements of section 8.1(b) have been delivered shall have
been greater than $105,000,000 (or for any Testing Period ending thereafter,
greater than $110,000,000), (C) at the time thereof and after giving effect
thereto, the Borrower would be in compliance with sections 9.7, 9.8 and 9.9 and
no Event of Default shall have occurred and be continuing or result therefrom
and (D) after giving effect thereto, the ratio of (x) Consolidated Total Debt to
Consolidated EBITDA would be at least .50 less than the maximum permitted ratio
at such time calculated pursuant to section 9.7 and (y) the ratio of
Consolidated Senior Debt to Consolidated EBITDA (calculated in the manner
consistent with the calculations of the Consolidated Total Debt to Consolidated
EBITDA ratio pursuant to section 9.7) would not exceed 1.00 to 1.00
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(PROVIDED THAT for the purposes of clauses (x) and (y), Consolidated EBITDA
shall be calculated for (1) in the case of periods ending prior to September 30,
2003, the two consecutive fiscal quarters then ended multiplied by two, and (2)
in the case of periods ending on September 30, 2003, for the three consecutive
fiscal quarters ending on September 30, 2003 multiplied by four thirds (4/3));
and PROVIDED FURTHER, however, that until such time as the Administrative Agent
has received the Borrower's audited financial statements complying with the
requirements of section 8.1(a), for the period immediately prior to any
prepayments redemption or acquisition of Public Notes and for the 10 calendar
days immediately succeeding such prepayment, redemption or acquisition, the
aggregate outstanding principal amount of Revolving Loans shall not exceed
$75,000,000.
9.12. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, enter into any transaction or series of
transactions with any Affiliate (other than, in the case of the Borrower, any
Subsidiary, and in the case of a Subsidiary, the Borrower or another Subsidiary)
other than in the ordinary course of business of and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person other than an
Affiliate, EXCEPT (i) sales of goods to an Affiliate for use or distribution
outside the United States which in the good faith judgment of the Borrower
complies with any applicable legal requirements of the Code, or (ii) agreements
and transactions with and payments to officers, directors and shareholders which
are either (A) entered into in the ordinary course of business and not
prohibited by any of the provisions of this Agreement, or (B) entered into
outside the ordinary course of business, approved by the directors or
shareholders of the Borrower, and not prohibited by any of the provisions of
this Agreement.
9.13. PLAN TERMINATIONS, MINIMUM FUNDING, ETC. The Borrower will
not, and will not permit any ERISA Affiliate to, (i) terminate any Plan or Plans
so as to result in liability of the Borrower or any ERISA Affiliate to the PBGC
in excess of, in the aggregate, $5,000,000, (ii) permit to exist one or more
events or conditions which reasonably present a material risk of the termination
by the PBGC of any Plan or Plans with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination, incur liability to the PBGC
in excess of such amount in the aggregate, or (iii) fail to comply with the
minimum funding standards of ERISA and the Code with respect to any Plan.
9.14. AMENDMENTS TO MATERIAL AGREEMENTS. Following the Closing Date,
the Borrower will not enter into or permit any amendment to, or modification or
change of, any Public Note Document as in effect on the Closing Date, if such
amendment, modification or change would be adverse to the interests of the
Lenders UNLESS, prior to the effectiveness thereof, such amendment, modification
or change has been approved in writing by the Administrative Agent, acting on
instructions from the Required Lenders.
SECTION 10. EVENTS OF DEFAULT
10.1. EVENTS OF DEFAULT. Any of the following specified events shall
constitute an Event of Default (each an "EVENT OF DEFAULT"):
(a) PAYMENTS: the Borrower shall (i) default in the payment when
due (whether at the Maturity Date, on a date fixed for a Scheduled Repayment, on
a date on which a required prepayment is to be made, upon acceleration or
otherwise) of any principal of the Loans or any reimbursement obligation in
respect of any Unpaid Drawing; or (ii) default, and such default shall continue
for five or more days, in the payment when due of any interest on the Loans or
any Fees or any other amounts owing hereunder or under any other Credit
Document; or
(b) REPRESENTATIONS, ETC.: any representation, warranty or
statement made by the Borrower or any other Credit Party herein or in any other
Credit Document or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
(c) CERTAIN COVENANTS: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement contained in
section 8.11, 8.12(b) or 8.16, or sections 9.2 through 9.9, inclusive, of this
Agreement; or
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(d) OTHER COVENANTS: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement contained in
this Agreement or any other Credit Document, other than those referred to in
section 10.1(a) or (b) or (c) above, and such default is not remedied within 30
days after the earlier of (i) an officer of the Borrower obtaining actual
knowledge of such default and (ii) the Borrower receiving written notice of such
default from the Administrative Agent or the Required Lenders (any such notice
to be identified as a "notice of default" and to refer specifically to this
paragraph); or
(e) CROSS DEFAULT UNDER OTHER AGREEMENTS: the Borrower or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) owed to any Lender, or having an
aggregate unpaid principal amount (or Capitalized Lease Obligation, in the case
of a Synthetic Lease, or present value, based on the implicit interest rate, in
the case of a Synthetic Lease) of $10,000,000 or greater, and such default shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto (and all grace periods applicable to such observance, performance or
condition shall have expired), or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause any such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of the Borrower or any of
its Subsidiaries shall be declared to be due and payable, or shall be required
to be prepaid (other than by a regularly scheduled required prepayment or
redemption, prior to the stated maturity thereof); or (iii) without limitation
of the foregoing clauses, the Borrower or any of its Subsidiaries shall default
in any payment obligation under a Designated Hedge Agreement, and such default
shall continue after the applicable grace period, if any, specified in such
Designated Hedge Agreement or any other agreement or instrument relating
thereto; or
(f) OTHER CREDIT DOCUMENTS: the Subsidiary Guaranty or any
Security Document (once executed and delivered) shall cease for any reason
(other than termination in accordance with its terms) to be in full force and
effect; or any Credit Party shall default in any payment obligation thereunder;
or any Credit Party shall default in any material respect in the due performance
and observance of any other obligation thereunder and such default shall
continue unremedied for a period of at least 30 days after notice by the
Administrative Agent or the Required Lenders; or any Credit Party shall (or seek
to) disaffirm or otherwise limit its obligations thereunder otherwise than in
strict compliance with the terms thereof; or
(g) JUDGMENTS: one or more judgments, orders or decrees shall be
entered against the Borrower and/or any of its Subsidiaries involving a
liability (other than a liability covered by insurance, as to which the carrier
has adequate claims paying ability and has not effectively reserved its rights)
of $5,000,000 or more in the aggregate for all such judgments, orders and
decrees for the Borrower and its Subsidiaries, and any such judgments or orders
or decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within 30 days (or such longer period, not in excess of 60 days, during
which enforcement thereof, and the filing of any judgment lien, is effectively
stayed or prohibited) from the entry thereof; or
(h) BANKRUPTCY, ETC.: any of the following shall occur:
(i) the Borrower, any of its Material
Subsidiaries or any other Credit Party (the Borrower and each
of such other Persons, each a "PRINCIPAL PARTY") shall
commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto, or any other
similar laws in other jurisdictions (the "BANKRUPTCY CODE");
or
(ii) an involuntary case is commenced against any
Principal Party under the Bankruptcy Code and the petition is
not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or
(iii) a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or
substantially all of the property of any Principal Party; or
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(iv) any Principal Party commences (including by
way of applying for or consenting to the appointment of, or
the taking of possession by, a rehabilitator, receiver,
custodian, trustee, conservator or liquidator (collectively, a
"CONSERVATOR") of itself or all or any substantial portion of
its property) any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency, liquidation, rehabilitation,
conservatorship or similar law of any jurisdiction whether now
or hereafter in effect relating to such Principal Party; or
(v) any such proceeding is commenced against any
Principal Party to the extent such proceeding is consented by
such Person or remains undismissed for a period of 60 days; or
(vi) any Principal Party is adjudicated insolvent
or bankrupt; or
(vii) any order of relief or other order approving
any such case or proceeding is entered; or
(viii) any Principal Party suffers any appointment
of any conservator or the like for it or any substantial part
of its property which continues undischarged or unstayed for a
period of 60 days; or
(ix) any Principal Party makes a general
assignment for the benefit of creditors; or
(x) any corporate (or similar organizational)
action is taken by any Principal Party for the purpose of
effecting any of the foregoing; or
(i) ERISA: (i) any of the events described in clauses (i) through
(viii) of section 8.1(f) shall have occurred; or (ii) there shall result from
any such event or events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a liability; and (iii)
any such event or events or any such lien, security interest or liability,
individually, and/or in the aggregate, in the opinion of the Required Lenders,
has had, or could reasonably be expected to have, a Material Adverse Effect.
10.2. ACCELERATION, ETC. Upon the occurrence of any Event of
Default, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the
Required Lenders, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Administrative Agent,
the Collateral Agent or any Lender to enforce its claims against the Borrower or
any other Credit Party in any manner permitted under applicable law:
(a) declare the Total Revolving Commitment terminated,
whereupon the Commitment of each Lender shall forthwith terminate
immediately without any other notice of any kind;
(b) declare the principal of and any accrued interest in
respect of all Loans, all Unpaid Drawings and all other Obligations
owing hereunder and under the other Credit Documents, to be, whereupon
the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower;
(c) terminate any Letter of Credit which may be
terminated in accordance with its terms;
(d) direct the Borrower to pay (and the Borrower hereby
agrees that on receipt of such notice or upon the occurrence of an
Event of Default with respect to the Borrower under section 10.1(h), it
will pay) to the Collateral Agent an amount of cash equal to the
aggregate Stated Amount of all Letters of Credit then outstanding (such
amount to be held as security for the Borrower's and any other Letter
of Credit Obligor's reimbursement obligations in respect thereof);
and/or
(e) exercise any other right or remedy available under
any of the Credit Documents or applicable law;
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PROVIDED that, if an Event of Default specified in section 10.1(h) shall occur
with respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (a) and/or
(b) above shall occur automatically without the giving of any such notice.
10.3. APPLICATION OF LIQUIDATION PROCEEDS. All monies received by
the Administrative Agent, the Collateral Agent or any Lender from the exercise
of remedies hereunder or under the other Credit Documents or under any other
documents relating to this Agreement shall, unless otherwise required by the
terms of the other Credit Documents or by applicable law, be applied as follows:
(i) FIRST, to the payment of all expenses (to the extent
not otherwise paid by the Borrower or any of the other Credit Parties)
incurred by the Administrative Agent and the Lenders in connection with
the exercise of such remedies, including, without limitation, all
reasonable costs and expenses of collection, reasonable documented
attorneys' fees, court costs and any foreclosure expenses;
(ii) SECOND, to the payment PRO RATA of interest then
accrued on the outstanding Loans;
(iii) THIRD, to the payment PRO RATA of any fees then
accrued and payable to the Administrative Agent, any Letter of Credit
Issuer or any Lender under this Agreement in respect of the Loans or
the Letter of Credit Outstandings;
(iv) FOURTH, to the payment PRO RATA of (A) the principal
balance then owing on the outstanding Loans, (B) the settlement and
termination liabilities, fees and premiums then due under Designated
Hedge Agreements to creditors of the Borrower or any Subsidiary,
subject to confirmation by the Administrative Agent of any calculations
of termination or other payment amounts being made in accordance with
normal industry practice, and (C) the Stated Amount of the Letter of
Credit Outstandings (to be held and applied by the Collateral Agent as
security for the reimbursement obligations in respect thereof);
(v) FIFTH, to the payment to the Lenders of any amounts
then accrued and unpaid under sections 2.9, 2.10, 3.5 and 5.4 hereof,
and if such proceeds are insufficient to pay such amounts in full, to
the payment of such amounts PRO RATA;
(vi) SIXTH, to the payment PRO RATA of all other amounts
owed by the Borrower to the Administrative Agent, to any Letter of
Credit Issuer or any Lender under this Agreement or any other Credit
Document, and to any counterparties under Designated Hedge Agreements
of the Borrower and its Subsidiaries, and if such proceeds are
insufficient to pay such amounts in full, to the payment of such
amounts PRO RATA; and
(vii) FINALLY, any remaining surplus after all of the
Obligations have been paid in full, to the Borrower or to whomsoever
shall be lawfully entitled thereto.
SECTION 11. THE ADMINISTRATIVE AGENT
11.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints NCB as Administrative Agent (such term to include, for the purposes of
this section 11, NCB acting as Collateral Agent) to act as specified herein and
in the other Credit Documents, and each such Lender hereby irrevocably
authorizes NCB as the Administrative Agent for such Lender, to take such action
on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent agrees to act as such upon the
express conditions contained in this section 11. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
in the other Credit Documents, nor any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this section 11 are solely for the
benefit of the Administrative Agent, and
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the Lenders, and the Borrower and its Subsidiaries shall not have any rights as
a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, the Administrative Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation or relationship of agency or trust with or for the
Borrower or any of its Subsidiaries.
11.2. DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by section 11.3.
11.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or of its Subsidiaries or any
of their respective officers contained in this Agreement, any other Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any Subsidiary of the Borrower or any of their respective
officers to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower or any of its Subsidiaries. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any Credit
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it, in good
faith, to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower or any of its
Subsidiaries), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders (or all of the Lenders, or all
of the Lenders (other than any Defaulting Lender), as applicable, as to any
matter which, pursuant to section 12.12, can only be effectuated with the
consent of all Lenders, or all Lenders (other than any Defaulting Lender), as
the case may be), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
11.5. NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders, PROVIDED that unless and until
the Administrative Agent shall have received such directions, the Administrative
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Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
11.6. NON-RELIANCE. Each Lender expressly acknowledges that neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its Subsidiaries.
Except as expressly stated herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial and
other conditions, prospects or creditworthiness of the Borrower or any of its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
11.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective Loans and Percentages of the Unutilized Total Commitment, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as such in any way
relating to or arising out of this Agreement or any other Credit Document, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by the
Administrative Agent under or in connection with any of the foregoing, but only
to the extent that any of the foregoing is not paid by the Borrower, PROVIDED
that no Lender shall be liable to the Administrative Agent for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting from the Administrative Agent's gross negligence or willful
misconduct. If any indemnity furnished to the Administrative Agent for any
purpose shall, in the opinion of the Administrative Agent, be insufficient or
become impaired, the Administrative Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this section 11.7 shall survive the
payment of all Obligations.
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
and their Affiliates as though not acting as Administrative Agent hereunder.
With respect to the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
11.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as the Administrative Agent upon not less than 20 Business Days' notice
to the Lenders and the Borrower. The Administrative Agent may be removed as the
Administrative Agent for cause upon not less than 20 Business Days' notice to
the Administrative Agent and the Borrower from the Required Lenders. The
Required Lenders shall appoint from among the Lenders a successor Administrative
Agent for the Lenders, subject to prior approval by the Borrower if no Event of
Default has occurred and is continuing (such approval not to be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent effective upon its
appointment, and the resigning or removed Administrative Agent's rights, powers
and duties as the Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement. After the retiring or removed Administrative
Agent's resignation or removal hereunder as the
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Administrative Agent, the provisions of this section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
11.10. OTHER AGENTS. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager, Lead Arranger,
Arranger or any other corresponding title, other than "Administrative Agent" or
"Collateral Agent", shall have no right, power, obligation, liability,
responsibility or duty under this Agreement or any other Credit Document except
those applicable to all Lenders as such and except as specifically provided
herein. Each Lender acknowledges that it has not relied, and will not rely, on
any Lender so identified in deciding to enter into this Agreement or in taking
or not taking any action hereunder.
SECTION 12. MISCELLANEOUS
12.1. PAYMENT OF EXPENSES ETC. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to pay (or reimburse
the Administrative Agent, the Collateral Agent, the Syndication Agent, the Book
Running Manager, and the Lead Arranger for) all reasonable out-of-pocket costs
and expenses of the Administrative Agent, the Collateral Agent, the Syndication
Agent, the Book Running Manager, and the Lead Arranger in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein, including, without limitation,
the reasonable fees and disbursements of ▇▇▇▇▇ Day, special counsel to the
Administrative Agent.
(b) The Borrower agrees to pay (or reimburse the Lead Arranger,
Book Running Manager and Syndication Agent for) all reasonable out-of-pocket
costs and expenses of the Lead Arranger, Book Running Manager and Syndication
Agent in connection with the syndication prior to the Effective Date of the
Commitments of the other Lenders hereunder, including, without limitation, the
reasonable fees and disbursements of internal or special counsel for any of such
Persons.
(c) The Borrower agrees to pay (or reimburse the Administrative
Agent, the Lenders and their Affiliates for) all reasonable out-of-pocket costs
and expenses of the Administrative Agent, the Lenders and their Affiliates in
connection with any amendment, waiver or consent relating to any of the Credit
Documents which is requested by any Credit Party, including, without limitation,
the reasonable fees and disbursements of ▇▇▇▇▇ Day, special counsel to the
Administrative Agent.
(d) The Borrower agrees to pay (or reimburse the Administrative
Agent, the Lenders and their Affiliates for) all reasonable out-of-pocket costs
and expenses of the Administrative Agent, the Lenders and their Affiliates in
connection with the enforcement of any of the Credit Documents or the other
documents and instruments referred to therein, including, without limitation,
(i) the reasonable fees and disbursements of ▇▇▇▇▇ Day, special counsel to the
Administrative Agent, and (ii) the reasonable fees and disbursements of any
individual counsel to any Lender (including allocated costs of internal
counsel).
(e) Without limitation of the preceding section 12.1(d), in the
event of the bankruptcy, insolvency, rehabilitation or other similar proceeding
in respect of the Borrower or any of its Subsidiaries, the Borrower agrees to
pay all costs of collection and defense, including reasonable attorneys' fees in
connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, which shall be due and payable together
with all required service or use taxes.
(f) The Borrower agrees to pay and hold the Administrative Agent,
the Collateral Agent and each of the Lenders harmless from and against any and
all present and future stamp and other similar taxes with respect to the
foregoing matters and save each such Agent and each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to any such indemnified
Person) to pay such taxes.
(g) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, the Lead Arranger, the Syndication Agent and the Book Running
Manager, each other Agent, each Lender, and their respective officers,
directors, trustees, employees, representatives, agents, investment advisors and
Affiliates (collectively, the "INDEMNITEES") from and hold each of them harmless
against any and all losses, liabilities, claims,
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damages or expenses reasonably incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of
(i) any investigation, litigation or other proceeding
(whether or not any Lender is a party thereto) related to the entering
into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, other than any such investigation,
litigation or proceeding arising out of transactions solely between any
of the Lenders or the Administrative Agent, transactions solely
involving the assignment by a Lender of all or a portion of its Loans
and Commitments, or the granting of participations therein, as provided
in this Agreement, or arising solely out of any examination of a Lender
by any regulatory or other governmental authority having jurisdiction
over it, or
(ii) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or
subsurface of any Real Property owned, leased or at any time operated
by the Borrower or any of its Subsidiaries, the release, generation,
storage, transportation, handling or disposal of Hazardous Materials at
any location, whether or not owned or operated by the Borrower or any
of its Subsidiaries, if the Borrower or any such Subsidiary could have
or is alleged to have any responsibility in respect thereof, the
non-compliance of any such Real Property with foreign, federal, state
and local laws, regulations and ordinances (including applicable
permits thereunder) applicable thereto, or any Environmental Claim
asserted against the Borrower or any of its Subsidiaries, in respect of
any such Real Property,
including, in each case, without limitation, the reasonable documented fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified or of any other
Indemnitee who is such Person or an Affiliate of such Person). To the extent
that the undertaking to indemnify, pay or hold harmless any Person set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.2. RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to the Borrower
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other Indebtedness at any time held or owing by such Lender (including,
without limitation, by branches, agencies and Affiliates of such Lender wherever
located) to or for the credit or the account of the Borrower against and on
account of the Obligations and liabilities of the Borrower to such Lender under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations of the Borrower purchased by such
Lender pursuant to section 12.4(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured. Each Lender agrees to promptly notify the
Borrower after any such set off and application, PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such set off and
application.
12.3. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or electronic e-mail transmission or
cable communication) and mailed, telegraphed, telexed, transmitted, cabled or
delivered, if to the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
attention: Chief Financial Officer (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇); if to any Lender
at its address specified for such Lender on Annex I hereto or the Assignment and
Assumption pursuant to which it became a Lender hereunder; if to the
Administrative Agent, at its Notice Office; or at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
transmitted via facsimile or electronic e-mail, cabled or sent by overnight
courier, and shall be effective when received.
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12.4. BENEFIT OF AGREEMENT. (a) SUCCESSORS AND ASSIGNS GENERALLY.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns,
PROVIDED that the Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of all the Lenders
(other than any Defaulting Lender) and PROVIDED, FURTHER, that no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of paragraph (b)
of this section, (ii) by way of participation in accordance with the provisions
of paragraph (d) of this section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in paragraph (d) of this section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) ASSIGNMENTS. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable Commitment is not
then in effect, the principal outstanding balance of the Loan of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $1,000,000, unless each
of the Administrative Agent and, so long as no Default of Event of Default shall
have occurred and be continuing, the Borrower otherwise consent (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loan or the Commitment assigned; (iii) any assignment must be approved by
the Administrative Agent unless the Person that is the proposed assignee is
itself a Lender or an Affiliate of a Lender; and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500, and
the Eligible Assignee, if it is not already a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of sections 2.9, 2.10, and 3.5, 5.4 and 12.1 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its offices in
Cleveland, Ohio, a copy of each Assignment and Assumption delivered to it and
the Lender Register. The entries in the Lender Register shall be conclusive
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Lender Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(d) PARTICIPATIONS. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower,
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the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver which
would (1) extend any date upon which a scheduled mandatory and automatic
reduction in any Commitment in which such Participant is participating is
scheduled to be made, (2) extend any date upon which a reimbursement obligation
in respect of a Letter of Credit or Unpaid Drawing in which such Participant is
participating is scheduled to be made, (3) extend the final scheduled maturity
of the Loans in which such Participant is participating (it being understood
that any waiver of the making of, or the application of, any mandatory
prepayment to such Loans shall not constitute an extension of the final maturity
date thereof), (4) reduce the rate or extend the time of payment of interest or
Fees on any such Loan or Commitment (except in connection with a waiver of the
applicability of any post-default increase in interest rates), (5) reduce the
principal amount of any such outstanding Loan, (6) increase such Participant's
participating interest in any Commitment over the amount thereof then in effect,
(7) release any Credit Party from its obligations under the Subsidiary Guaranty,
except in accordance with the provisions of the Credit Documents, (8) release
all or substantially all of the Collateral, in each case except in accordance
with the provisions of the Credit Documents, or (9) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement. Subject to paragraph (e) of this section, the Borrower agrees that
each Participant shall be entitled to the benefits of sections 2.9, 2.10, 3.5
and 5.4 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of section 12.2
as though it were a Lender, provided such Participant agrees to be subject to
Section 12.6.
(e) PAYMENTS, ETC. A Participant shall not be entitled to receive
any greater payment under sections 2.9 and 5.4 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of section 5.4
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
sections 5.4(b) and 12.4(g) as though it were a Lender.
(f) PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) FOREIGN LENDERS. At the time of each assignment pursuant to
section 12.4(b) to a Person which is not already a Lender hereunder and which is
a Foreign Lender, the respective assignee Lender shall provide to the Borrower
and the Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable a Section 5.4(b)(ii) Certificate) described in section
5.4(b). To the extent that an assignment of all or any portion of a Lender's
Commitment and related outstanding Obligations pursuant to this section 12.4(g)
would, at the time of such assignment, result in increased costs under section
2.9 from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
assignment).
(h) NO SEC REGISTRATION OR BLUE SKY COMPLIANCE. Notwithstanding
any other provisions of this section 12.4, no transfer or assignment of the
interests or obligations of any Lender hereunder or any grant of participation
therein shall be permitted if such transfer, assignment or grant would require
the Borrower to file a registration statement with the SEC or to qualify the
Loans under the "Blue Sky" laws of any State.
(i) REPRESENTATIONS OF LENDERS. Each Lender initially party to
this Agreement hereby represents, and each Person that became a Lender pursuant
to an assignment permitted by this section 12.4 will, upon its becoming party to
this Agreement, represent that it is a commercial lender, other financial
institution or other "accredited" investor (as defined in SEC Regulation D)
which makes or acquires loans in the ordinary course of its
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business and that it will make or acquire Loans for its own account in the
ordinary course of such business, PROVIDED that subject to the preceding
sections 12.4(b) and (d), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Lender shall at all times
be within its exclusive control.
(j) GRANTS BY LENDERS TO SPVs. (i) Notwithstanding anything to the
contrary contained herein, any Lender (a "DESIGNATING LENDER") may grant to a
special purpose funding vehicle (an "SPV"), identified as such in writing from
time to time by the Designating Lender to the Administrative Agent, the Borrower
and the other Lenders, the option to provide to the Borrower all or any part of
any Loan that such Designating Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; PROVIDED that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Designating Lender shall be obligated to make such Loan pursuant to
the terms hereof, and (iii) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent, and as if, such Loan were made by such
Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall
have all the rights that a Lender making such Loans or portion thereof would
have had under this Agreement; PROVIDED, HOWEVER, that each SPV shall have
granted to its Designating Lender an irrevocable power of attorney, to deliver
and receive all communications and notices under this Agreement (and any other
Credit Documents) and to exercise on such SPV's behalf, all of such SPV's voting
rights under this Agreement. No additional Note shall be required to evidence
the Loans or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note as agent for such SPV to the extent of the
Loans or portion thereof funded by such SPV. In addition, any payments for the
account of any SPV shall be paid to its Designating Lender as agent for such
SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable
for any indemnity or payment under this Agreement for which a Lender would
otherwise be liable. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other Person in instituting against, such SPV
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this section 12.4, any SPV may (A) with notice to, but without the
prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Designating Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancements to such SPV. This section 12.4(j) may not be amended without the
written consent of any Designating Lender affected thereby.
12.5. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent, any Lender or the Letter of Credit Issuer may have had
notice or knowledge of such Default or Event of Default at the time. The rights
and remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have.
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12.6. PAYMENTS PRO RATA; SHARING OF SETOFFS, ETC. (a) The
Administrative Agent agrees that promptly after its receipt of each payment from
or on behalf of the Borrower in respect of any Obligations, it shall distribute
such payment to the Lenders (other than any Lender that has expressly waived in
writing its right to receive its PRO RATA share thereof) PRO RATA based upon
their respective shares, if any, of the Obligations with respect to which such
payment was received. As to any such payment received by the Administrative
Agent prior to 1:00 P.M. (local time at the Payment Office) in funds which are
immediately available on such day, the Administrative Agent will use all
reasonable efforts to distribute such payment in immediately available funds on
the same day to the Lenders as aforesaid.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, THEN such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount, PROVIDED that (i) if all or
any portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest, and (ii) the provisions of this section
12.6(b) shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement, or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Letters of Credit to any
assignee or Participant pursuant to section 12.4, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this section
12.6(b) shall apply). The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding sections 12.6(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
(d) If any Lender shall fail to make any payment required to be
made by it to the Administrative Agent pursuant to section 2.4(b) or 3.4(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision of this Agreement), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender's
obligations to the Administrative Agent under such sections until all such
unsatisfied obligations are fully paid.
12.7. CALCULATIONS: COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); PROVIDED, that if at any time the computations
determining compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the Lenders, such
computations shall set forth in reasonable detail a description of the
differences and the effect upon such computations.
(b) All computations of interest on Eurocurrency Loans and Prime
Rate Loans hereunder and all computations of Commitment Fees, Letter of Credit
Fees and other Fees hereunder shall be made on the actual number of days elapsed
over a year of 360 days.
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO, NOTWITHSTANDING
ITS CONFLICTS OF LAWS RULES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE
BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO
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ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS
THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. Any legal action or
proceeding with respect to this Agreement or any other Credit Document may be
brought in the Court of Common Pleas of Cuyahoga County, Ohio, or of the United
States for the Northern District of Ohio, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower hereby further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at its address for notices pursuant to section 12.3,
such service to become effective 30 days after such mailing or at such earlier
time as may be provided under applicable law. Nothing herein shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 12.8(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
12.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10. EFFECTIVENESS; INTEGRATION. This Agreement shall become
effective on the date (the "EFFECTIVE DATE") on which the Borrower and each of
the Lenders shall have signed a copy hereof (whether the same or different
copies), and each shall have delivered the same to the Administrative Agent at
the Notice Office of the Administrative Agent or, in the case of the Lenders,
shall have given to the Administrative Agent telephonic (confirmed in writing),
written telex or facsimile transmission notice (actually received) at such
office that the same has been signed and mailed to it. This Agreement, the other
Credit Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent and/or the Lead Arranger, for its own account and
benefit and/or for the account, benefit of, and distribution to, the Lenders,
constitute the entire contract among the parties relating to the subject matter
hereof and thereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof or
thereof.
12.11. HEADINGS DESCRIPTIVE. The headings of the several sections and
other portions of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
12.12. AMENDMENT OR WAIVER. (a) Neither this Agreement nor any terms
hereof may be amended, changed, waived or otherwise modified UNLESS such
amendment, change, waiver or other modification is in writing and signed by the
Borrower and the Administrative Agent, and also signed (or consented to in
writing) by the Required Lenders, PROVIDED that
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(i) no change, waiver or other modification shall:
(A) increase the Commitment of any Lender
hereunder without the written consent of such Lender, or
increase the Total Revolving Commitment without the consent of
each Lender;
(B) extend or postpone any Maturity Date
provided for herein which is applicable to any Loan of any
Lender, extend or postpone the expiration date of any Letter
of Credit as to which such Lender is a LC Participant pursuant
to section 12.4 beyond the latest expiration date for a Letter
of Credit provided for herein, or extend or postpone any
scheduled expiration or termination date provided for herein
which is applicable to a Commitment of any Lender, without the
written consent of such Lender;
(C) reduce the principal amount of any Loan made
by any Lender, or reduce the rate or extend the time of
payment of, or excuse the payment of, interest thereon (other
than as a result of waiving the applicability of any
post-default increase in interest rates), without the written
consent of such Lender;
(D) reduce the amount of any Unpaid Drawing as
to which any Lender is a LC Participant as provided in section
3.4, or reduce the rate or extend the time of payment or
reimbursement thereof, or excuse the payment of, interest
thereon (other than as a result of waiving the applicability
of any post-default increase in interest rates), without the
written consent of such Lender; or
(E) reduce the rate or extend the time of
payment of, or excuse the payment of, any Fees to which any
Lender is entitled hereunder, without the written consent of
such Lender; and
(ii) no change, waiver or other modification termination
shall, without the written consent of each Lender (other than a
Defaulting Lender) affected thereby,
(A) release any Credit Party from the Subsidiary
Guaranty, EXCEPT in connection with the sale or disposition of
any Subsidiary or in connection with any other transaction
permitted by section 9.2(d) or otherwise disposed of with the
consent of the Required Lenders;
(B) release all or substantially all of the
Collateral, EXCEPT in connection with a sale or disposition
thereof or in connection with any other transaction permitted
by section 9.2(d) or any transaction consented to by the
Required Lenders;
(C) change the definition of the term "Change of
Control" or any of the provisions of section 5.2(i) which are
applicable upon a Change of Control;
(D) amend, modify or waive any provision of this
section 12.12, or section 10.3, 11.7, 12.6 or any other
provision of any of the Credit Documents pursuant to which the
consent or approval of all Lenders, or a number or specified
percentage or other required grouping of Lenders, is by the
terms of such provision explicitly required;
(E) reduce the percentage specified in, or
otherwise modify, the definition of Required Lenders; or
(F) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this
Agreement.
Any waiver, consent, amendment or other modification with respect to this
Agreement given or made in accordance with this section 12.12 shall be binding
on the parties hereto and their successors and assigns, but shall be effective
only in the specific instance and for the specific purpose for which it was
given or made.
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(b) No provision of section 3 may be amended without the consent
of (x) any Letter of Credit Issuer adversely affected thereby or (y) the
Administrative Agent, respectively. No provision of this Agreement affecting
only the Swing Line Lender may be amended without the consent of the Swing Line
Lender.
(c) If, in connection with any proposed change, waiver, discharge
or termination of any of the provisions of this Agreement which requires the
consent of all the Lenders, and the consent of the Required Lenders is obtained
but the consent of one or more of such other Lenders whose consent is sought is
not obtained, then the Borrower shall have the right, so long as all
non-consenting Lenders whose individual consent is sought are treated as
described in either clauses (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders with one or more replacement Lenders in
accordance with the provisions of section 2.11 so long as at the time of such
replacement, each such replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) terminate each such non-consenting
Lender's Commitments and repay the outstanding Loans of each such non-consenting
Lender in accordance with section 2.11, provided that, unless the Commitments
that are terminated and the Loans that are repaid pursuant to preceding clause
(B) are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Commitments and/or outstanding Loans of existing
Lenders (who in each case must specifically consent thereto), then in the case
of any action pursuant to preceding clause (B) each Lender (determined after
giving effect to the proposed action) shall specifically consent thereto,
PROVIDED FURTHER, that in any event the Borrower shall not have the right to
replace a Lender if, immediately after the termination of such Lender's
Commitment and the repayment of such Lender's Loans, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans PLUS (ii) the
aggregate outstanding principal amount of Swing Line Loans PLUS (iii) the
aggregate amount of Letter of Credit Outstandings, EXCEEDS the Total Revolving
Commitment as then in effect.
(d) Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some future time) of enabling the Borrower to satisfy
a condition precedent contained in section 6 to the making of a Loan under a
Facility shall be effective against any Lender with a Commitment under such
Facility, UNLESS the Required Lenders shall have consented in writing to such
waiver or modification.
(e) The Administrative Agent and the Collateral Agent will not
enter into any amendment, change, waiver, discharge or termination of any of the
other Credit Documents, EXCEPT as specifically provided therein or as authorized
as contemplated by a written request or consent of the Required Lenders (or all
of the Lenders, or all of the Lenders (other than any Defaulting Lender), as
applicable, as to any matter which, pursuant to this section 12.12, can only be
effectuated with the written consent of the Required Lenders, all Lenders, or
all Lenders (other than any Defaulting Lender), as the case may be).
12.13. SURVIVAL OF INDEMNITIES. All indemnities set forth herein
including, without limitation, in section 2.9, 2.10, 3.5, 5.4, 11.7 or 12.1
shall survive the execution and delivery of this Agreement and the making and
repayment of Loans.
12.14. DOMICILE OF LOANS. Each Lender may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or affiliate of
such Lender, PROVIDED that the Borrower shall not be responsible for costs
arising under section 2.9 resulting from any such transfer (other than a
transfer pursuant to section 2.11) to the extent not otherwise applicable to
such Lender prior to such transfer.
12.15. CONFIDENTIALITY. (a) Each of the Administrative Agent, each
Letter of Credit Issuer and the Lenders agrees to maintain the confidentiality
of the Confidential Information (as defined below), EXCEPT that Confidential
Information may be disclosed (1) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Confidential Information and
instructed to keep such Confidential Information confidential), (2) to any
direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty's professional advisor, so
long as such contractual counterparty (or such professional advisor) agrees to
be bound by the provisions of this section 12.15, (3) to the extent requested by
any regulatory authority, (4) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (5) to any other party
to this Agreement, (6) to any other creditor of the Borrower or any other Credit
Party which is a direct or intended beneficiary of any of the Credit Documents,
(7) in
81
connection with the exercise of any remedies hereunder or under any of the other
Credit Documents, or any suit, action or proceeding relating to this Agreement
or any of the other Credit Documents or the enforcement of rights hereunder or
thereunder, (8) subject to an agreement containing provisions substantially the
same as those of this section 12.15, to any assignee of or participant in, or
any prospective assignee of or participant in, any of its rights or obligations
under this Agreement, (9) with the consent of the Borrower, or (10) to the
extent such Confidential Information (i) becomes publicly available other than
as a result of a breach of this section 12.15, or (ii) becomes available to the
Administrative Agent, any Letter of Credit Issuer or any Lender on a
nonconfidential basis from a source other than the Borrower.
(b) For the purposes of this section 12.15, "CONFIDENTIAL
INFORMATION" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, any Letter of Credit Issuer or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; PROVIDED that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential.
(c) Any Person required to maintain the confidentiality of
Confidential Information as provided in this section 12.15 shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Confidential
Information as such Person would accord to its own confidential information. The
Borrower hereby agrees that the failure of the Administrative Agent, any Letter
of Credit Issuer or any Lender to comply with the provisions of this section
12.15 shall not relieve the Borrower, or any other Credit Party, of any of its
obligations under this Agreement or any of the other Credit Documents.
12.16. LENDER REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this section
12.16, to maintain a register (the "LENDER REGISTER") on or in which it will
record the names and addresses of the Lenders, and the Commitments from time to
time of each of the Lenders, the Loans made to the Borrower by each of the
Lenders and each repayment and prepayment in respect of the principal amount of
such Loans of each such Lender. Failure to make any such recordation, or (absent
manifest error) any error in such recordation, shall not affect the Borrower's
obligations in respect of such Loans. With respect to any Lender, the transfer
of the Commitment of such Lender and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitment shall not be effective
until such transfer is recorded on the Lender Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitment and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Lender Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption pursuant to section 12.4(b). The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this section 12.16, except to the extent attributable to the gross negligence or
willful misconduct of the Administrative Agent. The Lender Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS. The
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letters of
Credit. Neither any Letter of Credit Issuer nor any of its officers or directors
shall be liable or responsible for: (a) the use which may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by a
Letter of Credit Issuer against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the Borrower (or a Subsidiary which is the account party
in respect of the Letter of Credit in question) shall have a claim against a
Letter of Credit Issuer, and a Letter of Credit Issuer shall be liable to the
Borrower (or such Subsidiary), to the extent of any direct, but not
consequential, damages suffered by the Borrower (or such Subsidiary) which the
Borrower (or such Subsidiary) proves were caused by (i) such Letter of Credit
Issuer's willful misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms of such Letter of
Credit or (ii) such Letter of Credit Issuer's willful failure to make lawful
payment under
82
any Letter of Credit after the presentation to it of documentation strictly
complying with the terms and conditions of such Letter of Credit. In furtherance
and not in limitation of the foregoing, a Letter of Credit Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation.
12.18. GENERAL LIMITATION OF LIABILITY. No claim may be made by the
Borrower, any Lender, the Administrative Agent, any Letter of Credit Issuer or
any other Person against the Administrative Agent, any Letter of Credit Issuer,
or any other Lender or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any damages other than actual compensatory damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement or
any of the other Credit Documents, or any act, omission or event occurring in
connection therewith; and the Borrower, each Lender, the Administrative Agent
and each Letter of Credit Issuer hereby, to the fullest extent permitted under
applicable law, waives, releases and agrees not to ▇▇▇ or counterclaim upon any
such claim for any special, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
12.19. NO DUTY. All attorneys, accountants, appraisers, consultants
and other professional persons (including the firms or other entities on behalf
of which any such Person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Credit Documents
shall have the right to act exclusively in the interest of the Administrative
Agent or such Lender, as the case may be, and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower, to any of its Subsidiaries, or to any other Person,
with respect to any matters within the scope of such representation or related
to their activities in connection with such representation. The Borrower agrees,
on behalf of itself and its Subsidiaries, not to assert any claim or
counterclaim against any such persons with regard to such matters, all such
claims and counterclaims, now existing or hereafter arising, whether known or
unknown, foreseen or unforeseeable, being hereby waived, released and forever
discharged.
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC. The
relationship among the Borrower and its Subsidiaries, on the one hand, and the
Administrative Agent, each Letter of Credit Issuer and the Lenders, on the other
hand, is solely that of debtor and creditor, and the Administrative Agent, each
Letter of Credit Issuer and the Lenders have no fiduciary or other special
relationship with the Borrower and its Subsidiaries, and no term or provision of
any Credit Document, no course of dealing, no written or oral communication, or
other action, shall be construed so as to deem such relationship to be other
than that of debtor and creditor.
12.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties herein shall survive the making of Loans and the
issuance of Letters of Credit hereunder, the execution and delivery of this
Agreement, the Notes and the other documents the forms of which are attached as
Exhibits hereto, the issue and delivery of the Notes, any disposition thereof by
any holder thereof, and any investigation made by the Administrative Agent or
any Lender or any other holder of any of the Notes or on its behalf. All
statements contained in any certificate or other document delivered to the
Administrative Agent or any Lender or any holder of any Notes by or on behalf of
the Borrower or of its Subsidiaries pursuant hereto or otherwise specifically
for use in connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder, made as of the
respective dates specified therein or, if no date is specified, as of the
respective dates furnished to the Administrative Agent or any Lender.
12.22. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
12.23. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
given independent effect so that if a particular action, event, condition or
circumstance is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or would otherwise be within the limitations or
restrictions of, another covenant, shall not avoid the occurrence of a Default
or an Event of Default if such action is taken or event, condition or
circumstance exists.
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12.24. INTEREST RATE LIMITATION. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "CHARGES"), shall exceed the maximum
lawful rate (the "MAXIMUM RATE") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Prime Rate to the date of repayment, shall have
been received by such Lender.
[The balance of this page is intentionally blank;
the next pages are signature pages.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
OM GROUP, INC. NATIONAL CITY BANK,
INDIVIDUALLY AS A LENDER, THE
SWING LINE LENDER, THE LETTER OF
CREDIT ISSUER, AND IN ITS
CAPACITY AS THE ADMINISTRATIVE
AGENT AND THE COLLATERAL AGENT,
AND THE ARRANGER
BY:_______________________________
NAME:
TITLE:
BY:_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VICE PRESIDENT
KEYBANK NATIONAL ASSOCIATION, LASALLE BANK NATIONAL ASSOCIATION,
AS A LENDER AS A LENDER
BY:_______________________________ BY:_______________________________
NAME: NAME:
TITLE: TITLE:
BANK ONE, NA, CITIZENS BANK OF PENNSYLVANIA,
AS A LENDER AS A LENDER
BY:_______________________________ BY:_______________________________
NAME: NAME:
TITLE: TITLE:
CREDIT SUISSE FIRST BOSTON, FIRSTMERIT BANK, N.A.,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH, AS A LENDER
AS A LENDER
BY:_______________________________
BY:_______________________________ NAME:
NAME: TITLE:
TITLE:
[INSERT NAME OF LENDER],
AS A LENDER
BY:_______________________________
NAME:
TITLE:
SIGNATURE PAGE
TO THE
CREDIT AGREEMENT
FOR OM GROUP, INC.
ANNEX I
INFORMATION AS TO LENDERS AND COMMITMENTS
NAME OF LENDER REVOLVING COMMITMENT
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National City Bank $ 40,000,000
Swing Line Commitment:
$ 5,000,000
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KeyBank National Association $ 25,000,000
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LaSalle Bank National Association $ 25,000,000
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Bank One, NA $ 15,000,000
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Citizens Bank of Pennsylvania $ 15,000,000
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Credit Suisse First Boston $ 15,000,000
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FirstMerit Bank, N.A. $ 15,000,000
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TOTAL $150,000,000.00
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ANNEX II
INFORMATION AS TO SUBSIDIARIES
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Percentage of Outstanding
Stock or Other Equity Interest
Jurisdiction Owned (Indicating whether
Type of Where owned by the Borrower of a
Name of Subsidiary Organization Organized specified Subsidiary)
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ANNEX III
DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV
DESCRIPTION OF EXISTING LIENS
ANNEX V
DESCRIPTION OF EXISTING ADVANCES, LOANS, INVESTMENTS AND GUARANTEES
ANNEX VI
DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER
THE CREDIT AGREEMENT
ANNEX VII
DESCRIPTION OF EXEMPTED DISPOSITIONS
EXHIBIT A-1
REVOLVING NOTE
$____________ Cleveland, Ohio
________, 20__
FOR VALUE RECEIVED, the undersigned OM GROUP, INC., a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _______________________ (the "LENDER"),
in lawful money of the United States of America, and in immediately available
funds, at the Payment Office (such term and certain other terms used herein
without definition shall have the meanings ascribed thereto in the Credit
Agreement referred to below) of National City Bank (the "ADMINISTRATIVE AGENT"),
the principal sum of ________________ DOLLARS AND ____ CENTS ($___) or, if less,
the then unpaid principal amount of all Revolving Loans made by the Lender (or
any of its predecessors in interest with respect hereto) to the Borrower
pursuant to the Credit Agreement, on the Maturity Date.
The Borrower promises also to pay interest in like currency and funds
at the Payment Office on the unpaid principal amount of each Revolving Loan made
by the Lender from the date of such Revolving Loan until paid at the rates and
at the times provided in section 2.7 of the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of August 7, 2003, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and
National City Bank, as Administrative Agent (as from time to time in effect, the
"CREDIT AGREEMENT"), and is entitled to the benefits thereof and of the other
Credit Documents. As provided in the Credit Agreement, this Note is subject to
mandatory prepayment prior to the Maturity Date, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE CREDIT
AGREEMENT AND THIS NOTE, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE
BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY TO THE CREDIT AGREEMENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT THE OTHER PARTIES TO THE CREDIT AGREEMENT HAVE
BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
OM GROUP, INC.
By: ______________________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------------------------------------------
AMOUNT
OF
DATE AMOUNT TYPE PRINCIPAL UNPAID
OF OF OF INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN LOAN PERIOD PREPAID BALANCE BY
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EXHIBIT A-2
SWING LINE NOTE
$____________ Cleveland, Ohio
________, 20__
FOR VALUE RECEIVED, the undersigned OM GROUP, INC., a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _______________________ (the "LENDER"),
in lawful money of the United States of America and in immediately available
funds, at the Payment Office (such term and certain other terms used herein
without definition shall have the meanings ascribed thereto in the Credit
Agreement referred to below) of National City Bank (the "ADMINISTRATIVE AGENT"),
the principal sum of ________________ DOLLARS AND ____ CENTS ($___) or, if less,
the then unpaid principal amount of all Swing Line Loans made by the Lender (or
any of its predecessors in interest with respect hereto) to the Borrower
pursuant to the Credit Agreement. The Borrower will pay the principal amount of
any Swing Line Loan on the maturity date specified therefor in the Notice of
Borrowing relating thereto, which maturity date shall in no event be more than
one Business Day following the date such Swing Line Loan was made.
The Borrower promises also to pay interest in like currency and funds
at the Payment Office on the unpaid principal amount of each Swing Line Loan
made by the Lender from the date of such Swing Line Loan until paid at the rates
and at the times provided in section 2.7 of the Credit Agreement.
This Note is one of the Swing Line Notes referred to in the Credit
Agreement, dated as of August 7, 2003, 2003, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and
National City Bank, as Administrative Agent (as from time to time in effect, the
"CREDIT AGREEMENT"), and is entitled to the benefits thereof and of the other
Credit Documents. As provided in the Credit Agreement, this Note is subject to
mandatory prepayment prior to the maturity date of any Swing Line Loan or the
Maturity Date, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE CREDIT
AGREEMENT AND THIS NOTE, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE
BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY TO THE CREDIT AGREEMENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT THE OTHER PARTIES TO THE CREDIT AGREEMENT HAVE
BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
OM GROUP, INC.
By: _____________________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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TYPE AMOUNT
OF OF
DATE AMOUNT LOAN / OR PRINCIPAL UNPAID
OF OF INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN RATE MATURITY PREPAID BALANCE BY
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EXHIBIT B-1
NOTICE OF BORROWING
[Date]
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services Group
RE: NOTICE OF BORROWING UNDER THE CREDIT AGREEMENT,
DATED AS OF AUGUST 7, 2003
Ladies and Gentlemen:
The undersigned, OM Group, Inc. (the "BORROWER"), refers to the Credit
Agreement, dated as of August 7, 2003 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT", the terms defined therein being used herein as therein defined),
among the Borrower, the financial institutions from time to time party thereto
(the "LENDERS"), and National City Bank, as Administrative Agent for such
Lenders, and hereby gives you notice, irrevocably, pursuant to section 2.3(a) of
the Credit Agreement, that the undersigned hereby requests one or more
Borrowings under the Credit Agreement, and in that connection sets forth in the
schedule attached hereto the information relating to each such Borrowing
(collectively the "PROPOSED BORROWING") as required by section 2.3(a) of the
Credit Agreement.
The undersigned hereby specifies that the Proposed Borrowing will
consist of Loans as indicated in the schedule attached hereto.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of the Credit
Parties contained in the Credit Agreement and the other Credit
Documents are and will be true and correct in all material respects,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds thereof, as though made on such date,
except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations
and warranties were true and correct in all material respects as of the
date when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
OM GROUP, INC.
By:_____________________________
Title:
BORROWING SCHEDULE
PROPOSED BORROWING #1:
INTEREST PERIOD
BUSINESS DAY AND CURRENCY
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
----------------------------------------------------------------------------------------------------------------
Revolving Prime Rate Loans One Month
Facility
Eurocurrency Loans Two Months
______, 20___ Swing Line $____________
Facility Money Market Rate Three Months
Loans with an interest
[Circle one of rate of___% and a Six Months
above] maturity of one
Business Day [Circle one of
above]
[Circle and/or
complete one of
above]
PROPOSED BORROWING #2:
INTEREST PERIOD
BUSINESS DAY AND CURRENCY
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
----------------------------------------------------------------------------------------------------------------
Revolving Prime Rate Loans One Month
Facility
Eurocurrency Loans Two Months
______, 20___ Swing Line $____________
Facility Money Market Rate Three Months
Loans with an interest
[Circle one of rate of___% and a Six Months
above] maturity of one
Business Day [Circle one of
above]
[Circle and/or
complete one of
above]
PROPOSED BORROWING #3:
INTEREST PERIOD
BUSINESS DAY AND CURRENCY
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
----------------------------------------------------------------------------------------------------------------
Revolving Prime Rate Loans One Month
Facility
Eurocurrency Loans Two Months
______, 20___ Swing Line $____________
Facility Money Market Rate Three Months
Loans with an interest
rate of___% and a Six Months
[Circle one of maturity of one
above] Business Day [Circle one of
above]
[Circle and/or
complete one of
above]
PROPOSED BORROWING #4:
INTEREST PERIOD
BUSINESS DAY AND CURRENCY
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
----------------------------------------------------------------------------------------------------------------
Revolving Prime Rate Loans One Month
Facility
Eurocurrency Loans Two Months
______, 20___ Swing Line $____________
Facility Money Market Rate Three Months
Loans with an interest
[Circle one of rate of___% and a Six Months
above] maturity of one
Business Day [Circle one of
above]
[Circle and/or
complete one of
above]
EXHIBIT B-2
NOTICE OF CONVERSION
[Date]
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services Group
RE: NOTICE OF CONVERSION OF LOANS OF ONE TYPE
INTO ANOTHER TYPE, PURSUANT TO THE CREDIT AGREEMENT,
DATED AS OF AUGUST 7, 2003
Ladies and Gentlemen:
The undersigned, OM Group, Inc. (the "BORROWER"), refers to the Credit
Agreement, dated as of August 7, 2003 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT", the terms defined therein being used herein as therein defined),
among the Borrower, the financial institutions from time to time party thereto
(the "LENDERS"), and National City Bank, as Administrative Agent for such
Lenders, and hereby gives you notice, irrevocably, pursuant to section 2.6 of
the Credit Agreement, that the undersigned hereby requests one or more
Conversions of Loans, outstanding pursuant to a Borrowing under a Facility,
consisting of one Type of Loan, into Loans under the same Facility of another
Type, pursuant to section 2.6 of the Credit Agreement, and in that connection
sets forth in the schedule attached hereto the information relating to each such
Conversion.
Very truly yours,
[OM GROUP, INC.]
By: _____________________________
Title:
CONVERSION SCHEDULE
PROPOSED CONVERSION #1
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO THE LOANS DESCRIBED IN THE SECOND TABLE BELOW]
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
---------------------------------------------------------------------------------
One Month
____, 20__ Prime Rate Loans
$________ Two Months
Eurocurrency
Loans Three Months
Six Months
[Circle one of
Above]
[Circle one of
above]
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
---------------------------------------------------------------------------------
One Month
____, 20__ Prime Rate Loans
$________ Two Months
Eurocurrency
Loans Three Months
Six Months
[Circle one of
Above]
[Circle one of
above]
PROPOSED CONVERSION #2
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO THE LOANS DESCRIBED IN THE SECOND TABLE BELOW]
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
---------------------------------------------------------------------------------
One Month
____, 20__ Prime Rate Loans
$________ Two Months
Eurocurrency
Loans Three Months
Six Months
[Circle one of
Above]
[Circle one of
above]
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
---------------------------------------------------------------------------------
One Month
____, 20__ Prime Rate Loans
$________ Two Months
Eurocurrency
Loans Three Months
Six Months
[Circle one of
Above]
[Circle one of
above]
EXHIBIT B-3
LETTER OF CREDIT REQUEST
No. ______________(1)
Dated __________(2)
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: International Department/ Letter of Credit Operations
Ladies and Gentlemen:
The undersigned, OM Group, Inc. (the "BORROWER"), refers to the Credit
Agreement, dated as of August 7, 2003 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT", the capitalized terms defined therein being used herein as therein
defined), among the Borrower, the financial institutions from time to time party
thereto (the "LENDERS"), and National City Bank, as Administrative Agent for
such Lenders.
The undersigned hereby requests that__________________, as a Letter of
Credit Issuer, issue a Letter of Credit on______, 20___ (the "DATE OF
ISSUANCE") in the aggregate amount of [U.S.$________] for the account of
____________________.
The beneficiary of the requested Letter of Credit will be ,(3) and such
Letter of Credit will be in support of____________________ (4) and will have a
stated termination date of_________________.(5)
The undersigned hereby certifies that after giving effect to the
requested issuance of the Letter of Credit:
(i) $_________ principal amount of Revolving Loans will
be outstanding; and
(ii) the Letter of Credit Outstandings will be
$___________.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the Date of Issuance:
----------------------------
(1) Letter of Request Number.
(2) Date of Letter of Request (at least five Business Days prior to the
Date of Issuance or such lesser number as may be agreed by the relevant Letter
of Credit Issuer).
(3) Insert name and address of beneficiary.
(4) Insert description of the supported obligations, name of agreement
and/or the commercial transaction to which this Letter of Credit Request
relates.
(5) Insert last date upon which drafts may be presented (which may not be
beyond the 15th Business Day next preceding the Revolving Maturity Date).
(A) the representations and warranties of the Credit
Parties contained in the Credit Agreement and the other Credit
Documents are and will be true and correct in all material respects,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds thereof, as though made on such date,
except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations
and warranties were true and correct in all material respects as of the
date when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result after giving effect to the issuance of the
Letter of Credit requested hereby.
Copies of all documentation with respect to the supported transaction
are attached hereto.
Very truly yours,
OM GROUP, INC.
By: ____________________________
Title:
EXHIBIT C
FORM OF
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and
Assumption") is dated as of the Effective Date set forth below and is entered
into by and between [Insert name of Assignor] (the "Assignor") and [Insert name
of Assignee] (the "Assignee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Administrative Agent as contemplated below (i) all of the Assignor's
rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of
[identify Lender](6)]
3. Borrower(s): OM Group, Inc.
4. Administrative Agent: National City Bank, as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of August 7,
2003 among OM Group, Inc. and the Lenders
parties thereto, National City Bank, as
Administrative Agent, and the other agents
parties thereto
6. Assigned Interest:
Aggregate Amount of Amount of
Commitment/Loans for all Commitment/Loans Percentage Assigned of
Facility Assigned Lenders* Assigned* Commitment/Loans(7)
-------------------------------------------------------------------------------------------------------
Revolving Facility $ $ %
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$ $ %
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$ $ %
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[7. Trade Date: ___________________________](8)
--------------------------------------------
(6) Select as applicable.
(*) Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
(7) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(8) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
-----------------------
[NAME OF ASSIGNOR]
By:______________________________
Title:
ASSIGNEE
------------------------
[NAME OF ASSIGNEE]
By:______________________________
Title:
[Consented to and] Accepted:
NATIONAL CITY BANK, as
Administrative Agent
By_________________________________
Title:
[Consented to:]
[NAME OF RELEVANT PARTY]
By________________________________
Title:
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Credit Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Credit Document or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates
or any other Person of any of their respective obligations under any Credit
Document.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under
the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
8.1(a) thereof, as applicable, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (v) if it is not a
United States person (as such term is detailed in section 7701(a)(30) of the
Code for federal income tax purposes, attached to the Assignment and Assumption
is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Documents, and
(ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Ohio, without regard to its conflicts of laws principles.
EXHIBIT H
SECTION 5.4(b)(II) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of August 7,
2003, among OM Group, Inc., the financial institutions party thereto from time
to time, and National City Bank, as Administrative Agent (the "CREDIT
AGREEMENT"). Pursuant to the provisions of section 5.4(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF LENDER]
By:______________________________
Title:
Dated:__________
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND TERMS......................................................................... 1
1.1. Certain Defined Terms......................................................................... 1
1.2. Computation of Time Periods................................................................... 19
1.3. Accounting Terms.............................................................................. 19
1.4. Terms Generally............................................................................... 20
1.5. Pro Forma Calculations........................................................................ 20
SECTION 2. AMOUNT AND TERMS OF LOANS..................................................................... 20
2.1. Commitments for Loans......................................................................... 20
2.2. Minimum Borrowing Amounts, etc.; Pro Rata Borrowings.......................................... 21
2.3. Procedures for Borrowing and Disbursement of Funds............................................ 21
2.4. Refunding of, or Participation in, Swing Line Loans........................................... 22
2.5. Notes; Loan Accounts (a) Forms of Notes....................................................... 24
2.6. Voluntary Conversions of Revolving Loans...................................................... 25
2.7. Interest...................................................................................... 25
2.8. Selection and Continuation of Interest Periods................................................ 27
2.9. Increased Costs, Illegality, etc.............................................................. 28
2.10. Breakage Compensation......................................................................... 30
SECTION 3. LETTERS OF CREDIT............................................................................. 31
3.1. Letters of Credit............................................................................. 31
3.2. Letter of Credit Requests: Notices of Issuance................................................ 32
3.3. Agreement to Repay Letter of Credit Drawings.................................................. 32
3.4. Letter of Credit Participations............................................................... 33
3.5. Increased Costs............................................................................... 34
3.6. Guaranty of Letter of Credit Obligations of Other Letter of Credit Obligors.................. 35
SECTION 4. FEES; COMMITMENTS............................................................................. 36
4.1. Fees.......................................................................................... 36
4.2. Voluntary Termination/Reduction of Commitments................................................ 37
4.3. Mandatory Adjustments of Commitments, etc..................................................... 38
SECTION 5. PAYMENTS...................................................................................... 38
5.1. Voluntary Prepayments......................................................................... 38
5.2. Scheduled Repayments and Mandatory Prepayments................................................ 39
5.3. Method and Place of Payment................................................................... 41
5.4. Net Payments.................................................................................. 42
SECTION 6. CONDITIONS PRECEDENT.......................................................................... 43
6.1. Conditions Precedent at Closing Date.......................................................... 43
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6.2. Conditions Precedent to All Credit Events..................................................... 45
SECTION 7. REPRESENTATIONS AND WARRANTIES................................................................ 46
7.1. Corporate Status, etc......................................................................... 46
7.2. Subsidiaries.................................................................................. 46
7.3. Corporate Power and Authority, etc............................................................ 46
7.4. No Violation.................................................................................. 46
7.5. Governmental Approvals........................................................................ 46
7.6. Litigation.................................................................................... 47
7.7. Use of Proceeds; Margin Regulations........................................................... 47
7.8. Financial Statements, etc..................................................................... 47
7.9. No Material Adverse Change.................................................................... 48
7.10. Tax Returns and Payments...................................................................... 48
7.11. Title to Properties, etc...................................................................... 48
7.12. Lawful Operations, etc........................................................................ 48
7.13. Environmental Matters......................................................................... 48
7.14. Compliance with ERISA......................................................................... 49
7.15. Intellectual Property, etc.................................................................... 49
7.16. Investment Company Act, etc................................................................... 49
7.17. Existing Indebtedness......................................................................... 49
7.18. Burdensome Contracts; Labor Relations......................................................... 49
7.19. Security Interests............................................................................ 50
7.20. Indenture..................................................................................... 50
7.21. True and Complete Disclosure.................................................................. 50
SECTION 8. AFFIRMATIVE COVENANTS......................................................................... 50
8.1. Reporting Requirements........................................................................ 50
8.2. Books, Records and Inspections................................................................ 53
8.3. Insurance..................................................................................... 54
8.4. Payment of Taxes and Claims................................................................... 54
8.5. Corporate Franchises.......................................................................... 54
8.6. Maintenance of Properties..................................................................... 54
8.7. Compliance with Statutes, etc................................................................. 55
8.8. Compliance with Environmental Laws............................................................ 55
8.9. Fiscal Years, Fiscal Quarters................................................................. 56
8.10. Hedge Agreements, etc......................................................................... 56
8.11. Certain Subsidiaries to Join in Subsidiary Guaranty........................................... 56
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8.12. Additional Security; Further Assurances....................................................... 57
8.13. Casualty and Condemnation..................................................................... 59
8.14. Landlord/Mortgagee Waivers; Bailee Letters.................................................... 59
8.15. Most Favored Covenant Status.................................................................. 59
8.16. Senior Debt................................................................................... 59
8.17. Certain Subsidiaries.......................................................................... 59
SECTION 9. NEGATIVE COVENANTS............................................................................ 60
9.1. Changes in Business........................................................................... 60
9.2. Consolidation, Merger, Acquisitions, Asset Sales, etc......................................... 60
9.3. Liens......................................................................................... 62
9.4. Indebtedness.................................................................................. 62
9.5. Advances, Investments, Loans and Guaranty Obligations......................................... 63
9.6. Dividends and Other Restricted Payments....................................................... 65
9.7. Consolidated Leverage Ratio................................................................... 65
9.8. Fixed Charge Coverage Ratio................................................................... 66
9.9. Interest Coverage Ratio....................................................................... 66
9.10. Limitation on Certain Restrictive Agreements.................................................. 66
9.11. Prepayments and Refinancings of Other Debt, etc............................................... 67
9.12. Transactions with Affiliates.................................................................. 67
9.13. Plan Terminations, Minimum Funding, etc....................................................... 67
9.14. Amendments to Material Agreements............................................................. 68
SECTION 10. EVENTS OF DEFAULT............................................................................. 68
10.1. Events of Default............................................................................. 68
10.2. Acceleration, etc............................................................................. 70
10.3. Application of Liquidation Proceeds........................................................... 70
SECTION 11. THE ADMINISTRATIVE AGENT...................................................................... 71
11.1. Appointment................................................................................... 71
11.2. Delegation of Duties.......................................................................... 71
11.3. Exculpatory Provisions........................................................................ 71
11.4. Reliance by Administrative Agent.............................................................. 72
11.5. Notice of Default............................................................................. 72
11.6. Non-Reliance.................................................................................. 72
11.7. Indemnification............................................................................... 72
11.8. The Administrative Agent in Individual Capacity............................................... 73
11.9. Successor Administrative Agent................................................................ 73
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11.10. Other Agents.................................................................................. 73
SECTION 12. MISCELLANEOUS................................................................................. 73
12.1. Payment of Expenses etc....................................................................... 73
12.2. Right of Setoff............................................................................... 75
12.3. Notices....................................................................................... 75
12.4. Benefit of Agreement.......................................................................... 75
12.5. No Waiver: Remedies Cumulative................................................................ 78
12.6. Payments Pro Rata; Sharing of Setoffs, etc.................................................... 78
12.7. Calculations: Computations.................................................................... 79
12.8. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial........................ 79
12.9. Counterparts.................................................................................. 80
12.10. Effectiveness; Integration.................................................................... 80
12.11. Headings Descriptive.......................................................................... 80
12.12. Amendment or Waiver........................................................................... 80
12.13. Survival of Indemnities....................................................................... 82
12.14. Domicile of Loans............................................................................. 82
12.15. Confidentiality............................................................................... 82
12.16. Lender Register............................................................................... 83
12.17. Limitations on Liability of the Letter of Credit Issuers...................................... 83
12.18. General Limitation of Liability............................................................... 83
12.19. No Duty....................................................................................... 83
12.20. Lenders and Agent Not Fiduciary to Borrower, etc.............................................. 84
12.21. Survival of Representations and Warranties.................................................... 84
12.22. Severability.................................................................................. 84
12.23. Independence of Covenants..................................................................... 84
12.24. Interest Rate Limitation...................................................................... 84
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ANNEX I - INFORMATION AS TO LENDERS
ANNEX II - INFORMATION AS TO SUBSIDIARIES
ANNEX III - DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV - DESCRIPTION OF EXISTING LIENS
ANNEX V - DESCRIPTION OF EXISTING ADVANCES, LOANS,
INVESTMENTS AND GUARANTEES
ANNEX VI - DESCRIPTION OF LETTERS OF CREDIT DEEMED
ISSUED UNDER THE CREDIT AGREEMENT
ANNEX VII - DESCRIPTION OF EXEMPTED DISPOSITIONS
EXHIBIT A-1 - FORM OF REVOLVING NOTE
EXHIBIT A-2 - FORM OF SWING LINE NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF CONVERSION
EXHIBIT B-3 - FORM OF LETTER OF CREDIT REQUEST
EXHIBIT C - FORM OF ASSIGNMENT AND ASSUMPTION
EXHIBIT D-1 - FORM OF COLLATERAL ASSIGNMENT OF PATENTS
EXHIBIT D-2 - FORM OF COLLATERAL ASSIGNMENT OF TRADEMARKS
EXHIBIT E - FORM OF PLEDGE AGREEMENT
EXHIBIT F - FORM OF SECURITY AGREEMENT
EXHIBIT G - FORM OF SUBSIDIARY GUARANTEE
EXHIBIT D - FORM OF SECTION 5.4(b)(II) CERTIFICATE