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CREDIT AGREEMENT
DATED AS OF SEPTEMBER 20, 2000
AMONG
MIDWAY GAMES INC.,
BANK OF AMERICA N.A.,
AS AGENT,
AND
LETTER OF CREDIT ISSUING BANK
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY BANC OF AMERICA SECURITIES LLC
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ARTICLE I DEFINITIONS...............................................1
1.1 Certain Defined Terms........................................1
1.2 Other Interpretive Provisions...............................17
1.3 Accounting Principles.......................................18
ARTICLE II THE CREDITS..............................................19
2.1 Amounts and Terms of Commitments............................19
2.2 Loan Accounts...............................................19
2.3 Procedure for Borrowing.....................................20
2.4 Conversion and Continuation Elections.......................21
2.5 Voluntary Termination or Reduction of Commitments...........22
2.6 Optional Prepayments........................................22
2.7 Mandatory Prepayments.......................................22
2.8 Repayment...................................................23
2.9 Interest....................................................23
2.10 Commitment Fees.............................................24
2.11 Computation of Fees and Interest............................24
2.12 Payments by the Company.....................................24
2.13 Payments by the Banks to the Agent..........................25
2.14 Sharing of Payments, Etc....................................26
ARTICLE III THE LETTERS OF CREDIT..................................26
3.1 The Letter of Credit Subfacility............................26
3.2 Issuance, Amendment and Renewal of Letters of Credit........28
3.3 Existing Bank of America Letters of Credit; Risk
Participations, Drawings and Reimbursements...............30
3.4 Repayment of Participations.................................32
3.5 Role of the Issuing Bank....................................32
3.6 Obligations Absolute........................................33
3.7 Cash Collateral Pledge......................................34
3.8 Letter of Credit Fees.......................................34
3.9 Uniform Customs and Practice................................35
3.10 Guaranty of the Company.....................................35
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY..................35
4.1 Taxes.......................................................35
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4.2 Illegality..................................................36
4.3 Increased Costs and Reduction of Return.....................37
4.4 Funding Losses..............................................38
4.5 Inability to Determine Rates................................38
4.6 Certificates of Banks.......................................39
4.7 Survival....................................................39
ARTICLE V CONDITIONS PRECEDENT.....................................39
5.1 Conditions of Initial Credit Extensions.....................39
5.2 Conditions to All Credit Extensions.........................41
ARTICLE VI REPRESENTATIONS AND WARRANTIES..........................41
6.1 Corporate Existence and Power...............................42
6.2 Corporate Authorization; No Contravention...................42
6.3 Governmental Authorization..................................42
6.4 Binding Effect..............................................42
6.5 Litigation..................................................43
6.6 No Default..................................................43
6.7 ERISA Compliance............................................43
6.8 Use of Proceeds; Margin Regulations.........................44
6.9 Title to Properties.........................................44
6.10 Taxes.......................................................44
6.11 Financial Condition.........................................44
6.12 Environmental Matters.......................................45
6.13 Regulated Entities..........................................45
6.14 No Burdensome Restrictions..................................45
6.15 Subsidiaries................................................45
6.16 Insurance...................................................45
6.17 Swap Obligations............................................45
6.18 Full Disclosure.............................................45
ARTICLE VII AFFIRMATIVE COVENANTS..................................46
7.1 Financial Statements........................................46
7.2 Certificates; Other Information.............................46
7.3 Notices.....................................................47
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7.4 Preservation of Corporate Existence, Etc....................48
7.5 Maintenance of Property.....................................48
7.6 Insurance...................................................49
7.7 Payment of Obligations......................................49
7.8 Compliance with Laws........................................49
7.9 Compliance with ERISA.......................................49
7.10 Inspection of Property and Books and Records................49
7.11 Environmental Laws..........................................50
7.12 Use of Proceeds.............................................50
7.13 Subsidiary Guaranties.......................................50
7.14 Maintenance of Bank Accounts................................50
7.15 Collateral..................................................50
ARTICLE VIII NEGATIVE COVENANTS....................................51
8.1 Limitation on Liens.........................................51
8.2 Disposition of Assets.......................................52
8.3 Consolidations and Mergers..................................53
8.4 Loans and Investments.......................................53
8.5 Limitation on Indebtedness..................................54
8.6 Transactions with Affiliates................................55
8.7 Use of Proceeds.............................................55
8.8 Contingent Obligations......................................55
8.9 Joint Ventures..............................................55
8.10 Lease Obligations...........................................55
8.11 Restricted Payments........................................56
8.12 ERISA......................................................56
8.13 Change in Business.........................................56
8.14 Accounting Changes.........................................56
8.15 Clean-up/Clean Down Provisions.............................56
8.16 Subordinated Debt..........................................56
ARTICLE IX FINANCIAL COVENANTS....................................57
9.1 Minimum Net Worth..........................................57
9.2 Minimum Liquidity..........................................57
9.3 Quick Ratio................................................57
9.4 Capital Expenditures.......................................57
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ARTICLE X EVENTS OF DEFAULT.......................................57
10.1 Event of Default..........................................57
10.2 Remedies..................................................59
10.3 Rights Not Exclusive......................................60
10.4 Certain Financial Covenant Defaults.......................60
ARTICLE XI THE AGENT..............................................60
11.1 Appointment and Authorization; "Agent\....................61
11.2 Delegation of Duties......................................61
11.3 Liability of Agent........................................61
11.4 Reliance by Agent.........................................62
11.5 Notice of Default.........................................62
11.6 Credit Decision...........................................63
11.7 Indemnification of Agent..................................63
11.8 Agent in Individual Capacity..............................63
11.9 Successor Agent...........................................64
11.10 Withholding Tax...........................................64
ARTICLE XII MISCELLANEOUS.........................................66
12.1 Amendments and Waivers....................................66
12.2 Notices...................................................67
12.3 No Waiver; Cumulative Remedies............................67
12.4 Costs and Expenses........................................68
12.5 Company Indemnification...................................68
12.6 Payments Set Aside........................................68
12.7 Successors and Assigns....................................69
12.8 Assignments, Participations, etc..........................69
12.9 Confidentiality...........................................70
12.10 Set-off...................................................71
12.11 Automatic Debits of Fees..................................71
12.12 Notification of Addresses, Lending Offices, Etc...........72
12.13 Counterparts..............................................72
12.14 Severability..............................................72
12.15 No Third Parties Benefited................................72
12.16 Governing Law and Jurisdiction............................72
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12.17 Waiver of Jury Trial......................................73
12.18 Entire Agreement..........................................73
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SCHEDULES
Schedule 1 Commitments
Schedule 3.3 Existing Bank of America Letters of Credit
Schedule 5.1 Guarantors
Schedule 6.5 Litigation
Schedule 6.7 ERISA
Schedule 6.12 Environmental Matters
Schedule 6.15 Subsidiaries and Minority Interests
Schedule 6.16 Insurance Matters
Schedule 8.1 Permitted Liens
Schedule 8.5 Permitted Indebtedness
Schedule 8.8 Contingent Obligations
Schedule 12.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Promissory Note
Exhibit G Form of Guaranty
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of September 20, 2000, among
MIDWAY GAMES INC., a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Banks"; individually, a "Bank"), and Bank of America, N.A., as letter of credit
issuing bank and as agent for the Banks.
WHEREAS, the Banks have agreed to make available to the Company a revolving
credit facility with letter of credit subfacility upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following meanings:
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
"Account Party" has the meaning specified in Section 3.1.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent" means Bank of America in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 11.9.
"Agent-Related Persons" means Bank of America and any successor agent
arising under Section 11.9 and any successor letter of credit issuing bank
hereunder, together with their respective Affiliates (including, in the case of
Bank of America, the Arranger), and the officers, directors, employees and
attorneys-in-fact of such Persons and Affiliates.
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"Agent's Payment Office" means the address for payments set forth on
Schedule 12.2 or such other address in the United States as the Agent may from
time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" as to any LIBO Rate Loan means "plus 2.00% per annum"
and as to Base Rate Loan means "minus 0.25% per annum."
"Applicable Time" means local time to the Agent's Payment Office.
"Arranger" means Banc of America Securities LLC.
"Assignee" has the meaning specified in subsection 12.8(a).
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel, the reasonable allocated cost of
internal legal services and all reasonable disbursements of internal counsel.
"Bank" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include Bank of America, including in its
capacity as Issuing Bank; for purposes of clarification only, to the extent that
Bank of America may have any rights or obligations in addition to those of the
Banks due to its status as Issuing Bank, its status as such will be specifically
referenced.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
"Base Rate" means a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
"prime rate." Such rate is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Revolving Loan, or an L/C Advance, that bears
interest based on the Base Rate.
"Borrowing" means a borrowing hereunder consisting of Revolving Loans of
the same Type made to the Company on the same day by the Banks under Article II,
and, other than in the case of Base Rate Loans, having the same Interest Period.
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"Borrowing Date" means any date on which a Borrowing occurs under Section
2.3.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in the state
in which Agent's Payment Office is located and, if the applicable Business Day
relates to any LIBO Rate Loan, means such a day on which dealings are carried on
in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Lease" means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person which, in conformity with generally accepted accounting principles, is
accounted for as a capital lease on the balance sheet of such Person.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Agent, for the benefit of the Agent, the Issuing Bank and the Banks, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent and the Issuing
Bank (which documents are hereby consented to by the Banks). Derivatives of such
term shall have corresponding meaning. The Company hereby grants the Agent, for
the benefit of the Agent, the Issuing Bank and the Banks, a security interest in
all such cash and deposit account balances. Cash collateral shall be maintained
in blocked, interest bearing deposit accounts at Bank of America.
"Change of Control" means the occurrence, after the date of this Agreement,
of any of the following: (a) any Person or two or more Persons acting in concert
acquiring beneficial ownership (within the meaning of Rule 13d-3 of the SEC
under the Exchange Act), directly or indirectly, of securities of the Company
(or other securities convertible into such securities) representing 30% or more
of the combined voting power of all securities of the Company entitled to vote
in the election of directors, provided, however, that this clause (a) shall not
apply to any direct or indirect acquisition of beneficial ownership of
securities of the Company (or other securities convertible into such securities)
by Summer X. Xxxxxxxx, National Amusements, Inc. and/or any of their respective
Affiliates or any Person acting in concert with Summer X. Xxxxxxxx, National
Amusements, Inc. and/or any of their respective Affiliates; or (b) during any
period of up to 12 consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 12-month period were directors of the
Company ceasing for any reason to constitute a majority of the Board of
Directors unless the Persons replacing such individuals were nominated by the
Board of Directors of the Company.
"Charge" has the meaning specified in Section 10.4.
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"Closing Date" means the date on which all conditions precedent set forth
in Section 5.1 are satisfied or waived by all Banks (or, in the case of
subsection 5.1(e), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and regulations promulgated
thereunder.
"Collateral Documents" has the meaning set forth in Section 7.15.
"Commitment" means, as to any Bank, such Bank's Pro Rata Share of the Total
Commitment, as the same may be reduced pursuant to Section 2.5 or as a result of
one or more assignments pursuant to Section 12.8.
"Commitment Fee" has the meaning specified in subsection 2.10(b).
"Company" is defined in the preamble.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated Capital Expenditures" shall mean, as of the last day of any
fiscal quarter for the four consecutive fiscal quarter period then ended, the
capital expenditures of the Company and its Subsidiaries for such period, as the
same are (or would in accordance with GAAP be) set forth in the consolidated
statement of changes in financial position of the Company and its Subsidiaries
for such period.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument (other than any Letter of Credit) issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever made or
tendered, or such services
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are ever performed or tendered, or (d) in respect of aFny Swap Contract. The
amount of any Contingent Obligation shall, in the case of Guaranty Obligations,
be deemed equal to the stated or determinable amount of the primary obligation
in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations other than in respect of Swap
Contracts, shall be equal to the maximum reasonably anticipated liability in
respect thereof and, in the case of Contingent Obligations in respect of Swap
Contracts, shall be equal to the Swap Termination Value.
"Consolidated Net Worth" means as of any date of determination,
shareholders equity for the Company and its Subsidiaries as of that date on a
consolidated basis determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section 2.4,
the Company (a) converts Loans of one Type to another Type, or (b) continues as
Loans of the same Type, but with a new Interest Period, Loans having Interest
Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any Revolving Loans
hereunder, and (b) the Issuance of any Letters of Credit hereunder (including
the Existing Bank of America Letters of Credit).
"Default" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Subsidiary" (or "Domestic Wholly-Owned Subsidiary") means any
Subsidiary (or Wholly-Owned Subsidiary ) which is organized under the laws of
one of the United States of America.
"Effective Amount" means (i) with respect to any Revolving Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any Borrowings and prepayments or repayments of Revolving Loans occurring on
such date; and (ii) with respect to any outstanding L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date and any other changes in
the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any Letters of
Credit or any
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reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Eligible Assignee" means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of
a Person of which a Bank is a Subsidiary, or (iii) a Person of which a Bank is a
Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums
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due but not delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the definition
of "LIBO Rate".
"Event of Default" means any of the events or circumstances specified in
Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, and regulations
promulgated thereunder.
"Existing Bank of America Letters of Credit" means the letters of credit
described in Schedule 3.3.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Agent.
"FRB" means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 4.1.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
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"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantor" has the meaning specified in Section 5.1.
"Guarant(ies)" means a guaranty substantially in the form of Exhibit G
hereto.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Honor Date" has the meaning specified in subsection 3.3(c).
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
or account payables entered into in the ordinary course of business on normal
trade terms and wages, benefits, deferred compensation and other accrued
benefits); (c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations with respect to
capital leases; (g) all indebtedness referred to in clauses (a) through (f)
above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (h) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g) above.
"Indemnified Liabilities" has the meaning specified in Section 12.5.
"Indemnified Person" has the meaning specified in Section 12.5.
"Independent Auditor" has the meaning specified in subsection 7.1(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors,
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composition, marshalling of assets for creditors, or other, similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors; undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means, as to any LIBO Rate Loan, the last day of
each Interest Period applicable to such Loan and, as to any Base Rate Loan, the
last Business Day of each calendar month and each date such Loan is converted
into another Type of Loan, provided, however, that if any Interest Period for an
LIBO Rate Loan exceeds three months, the date that falls three months (as the
case may be) after the beginning of such Interest Period and after each Interest
Payment Date thereafter is also an Interest Payment Date.
"Interest Period" means as to any LIBO Rate Loan, the period commencing on
the Borrowing Date of such Loan or on the Conversion/Continuation Date on which
the Loan is converted into or continued as an LIBO Rate Loan, and ending on the
date one, two or three months thereafter (and any other period that is 12 months
or less and is consented to by the Required Banks in the given instance) as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following
Business Day unless, in the case of an LIBO Rate Loan, the result of
such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) any Interest Period pertaining to an LIBO Rate Loan that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the date set
forth in clause (a) of the definition of Revolving Termination Date;
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Issuance Date" has the meaning specified in subsection 3.1(a).
"Issue" means, with respect to any Letter of Credit, to incorporate the
Existing Bank of America Letters of Credit into this Agreement, or to issue or
to extend the expiry of, or to renew
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or increase the amount of, such Letter of Credit; and the terms "Issued,"
"Issuing" and "Issuance" have corresponding meanings.
"Issuing Bank" means Bank of America in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement letter of credit
issuer arising under subsection 11.1(b) or Section 11.9.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other legal arrangement (whether created by
contract or conducted through a separate legal entity) now or hereafter formed
by the Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"L/C Advance" means each Bank's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which shall not have been reimbursed on the date when made
nor converted into a Borrowing of Revolving Loans under subsection 3.3(c).
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and the
commitment of the Banks severally to participate in, Letters of Credit
(including the Existing Bank of America Letters of Credit) from time to time
Issued or outstanding under Article III, in an aggregate amount not to exceed
the following amounts during the following periods:
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PERIOD AMOUNT
------- ------
Closing Date through December 30, 2000 $40,000,000
December 31, 2000 through March 30, 2001 $40,000,000
March 31 2001 through June 29, 2001 $15,000,000
June 30, 2001 and thereafter $35,000,000
as the same shall be reduced as a result of a reduction in the L/C Commitment
pursuant to Section 2.5; it being understood that the L/C Commitment is a part
of the Total Commitment, rather than a separate, independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, plus (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all outstanding L/C
Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications, and any other document relating to any Letter of
Credit, including any of the Issuing Bank's standard form documents for letter
of credit issuances.
"Lending Office" means, as to any Bank, the office or offices of such Bank
specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on Schedule 12.2, or such other office or
offices as such Bank may from time to time notify the Company and the Agent.
"Letters of Credit" means the Existing Bank of America Letters of Credit
and any letters of credit (whether standby letters of credit or commercial
documentary letters of credit) Issued by the Issuing Bank pursuant to Article
III.
"LIBO Rate" means for any Interest Period with respect to any LIBO Rate
Loan, a rate per annum determined by Agent pursuant to the following formula:
LIBO Rate = LIBO Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"LIBO Rate" means, for such Interest Period:
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(a) the rate per annum equal to the rate determined by Agent to be the
offered rate that appears on the page of the Telerate screen that displays
an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by Agent
to be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) in the event the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by Agent as the
rate of interest (rounded upward to the next 1/100th of 1%) at which
deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the LIBO Rate Loan being
made, Continued or Converted by Agent (or its Affiliate) in its capacity
as a Lender and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the offshore
Dollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The LIBO Rate for each
outstanding LIBO Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the LIBO Rate by
Agent shall be conclusive in the absence of manifest error.
"LIBO Rate Loan" means a Loan that bears interest based on the LIBO Rate.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created
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by, arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"Liquidity" has the meaning specified in Section 9.2.
"Loan" means an extension of credit by a Bank to the Company under Article
II or Article III in the form of a Revolving Loan or L/C Advance.
"Loan Documents" means this Agreement, any Notes, the L/C-Related
Documents, the Guaranties, Collateral Documents, the Syndication Letter, and all
other documents delivered to the Agent or any Bank in connection herewith on or
after the Closing Date.
"Margin Stock" means "margin stock" as such term is defined in Regulation
G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or financial
condition of the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company or any Subsidiary to perform under any
Loan Document and to avoid any Event of Default; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against the
Company or any Subsidiary of any Loan Document.
"Multiemployer Plan" means a "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Note" means a promissory note executed by the Company in favor of a Bank
pursuant to subsection 2.2(b), in substantially the form of Exhibit F.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Ordinary Course Investments" means Investments consisting of:
(a) advances in the ordinary course of business to officers, directors and
employees of the Company and Domestic Subsidiaries for travel, entertainment,
relocation and analogous ordinary business purposes;
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(b) loans and advances of the Company to any Subsidiary that is not a
Guarantor or of any Subsidiary to another Subsidiary that is not a Guarantor;
provided, however, that such loans and advances (i) shall not exceed in the
aggregate 10% of the Company's consolidated assets measured at the end of each
fiscal quarter; and (ii) shall be evidenced by a master promissory note pledged
to the Agent pursuant to the Collateral Documents; and
(c) extensions of credit in the ordinary course of business to customers or
suppliers of the Company and any Subsidiary and any Investments received in
satisfaction or partial satisfaction thereof.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company to any
Bank, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents.
"Participant" has the meaning specified in subsection 12.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA which the Company sponsors, maintains, or to which
it makes, is making, or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 8.1.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts; provided, that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in
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the value of securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for purposes of
speculation or taking a "market view;" (b) such Swap Contracts do not contain
any provision ("walk-away" provision) exonerating the non-defaulting party from
its obligation to make payments on outstanding transactions to the defaulting
party, it being understood that any obligations (contingent or otherwise) of the
Company or any Subsidiary existing or arising under any Swap Contract which
provides for payment on early termination based on the 1992 International Swap
Dealers Association, Inc. Master Agreement form providing for "second method and
market quotation" shall satisfy the requirements of this definition.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
which the Company sponsors or maintains or to which the Company makes, is
making, or is obligated to make contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the percentage set
forth opposite such Bank's name on Schedule I, as the same may be adjusted
pursuant to one or more assignments pursuant to Section 12.8.
"Quick Ratio" has the meaning specified in Section 9.3.
"Replacement Bank" has the meaning specified in Section 4.8.
"Reportable Event" means, any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Required Banks" means at any time at least two Banks then holding in
excess of 85% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, at least two Banks then having in
excess of 85% of the Total Commitment.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the president, the
chief financial officer or the controller of the Company, or any other officer
having substantially the same authority and responsibility; or, with respect to
compliance with financial covenants, the chief
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financial officer or the treasurer of the Company, or any other officer having
substantially the same authority and responsibility.
"Revolving Loan" has the meaning specified in Section 2.1, and may be a
Base Rate Loan or an LIBO Rate Loan (each, a "Type" of Revolving Loan).
"Revolving Termination Date" means the earlier to occur of: (a) September
19, 2001 and (b) the date on which the Total Commitment terminates in accordance
with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Subordinated Debt" means Indebtedness of the Company which is subordinated
in priority of payment to the Indebtedness of the Company under this Agreement,
the Notes and the L/C Applications (including refinancings of and post-petition
interest on this Agreement and the Note, and the L/C Applications) in the
Agent's sole opinion.
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, Joint Venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Syndication Letter" has the meaning specified in Section 12.8.
"Swap Contract" means any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the foregoing,
and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for
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any date prior to the date referenced in clause (a) the amount(s) determined as
the xxxx-to-market value(s) for such Swap Contracts, as determined by the Agent
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Bank).
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of which such
Bank or the Agent, as the case may be, is organized or maintains a lending
office.
"Trigger Event" means any of the following:
(a) As of the end of any month set forth below, the Company's Quick
Ratio is less than the ratio applicable thereto as follows:
Month Ending Ratio
September 30, 2000 1.65
October 31, 2000 1.65
November 30, 2000 2.75
December 31, 2000 and thereafter 11.00
or
(b) the Company's Consolidated Net Worth is less than $135,000,000.
"Total Commitment" has the meaning assigned thereto in Section 2.1.
"Type" has the meaning specified in the definition of "Revolving Loan."
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means any Subsidiary in which (other than
directors' qualifying shares required by law or shares required to be held by
foreign nationals) 100% of the capital stock or other equity interests of each
class having ordinary voting power, and 100% of the capital stock or other
equity interests of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.
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1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Banks by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting terms not
expressly
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defined herein shall be construed, and all financial computations required under
this Agreement shall be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans to the Company (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date; provided,
however, that, after giving effect to any Borrowing of Revolving Loans, the
Effective Amount of all Revolving Loans plus the Effective Amount of all L/C
Obligations, shall not at any time exceed the following amounts during the
following periods (any such amount with respect to any such period, as the same
may be reduced pursuant to Section 2.5 or 2.7 being herein called, the "Total
Commitments"):
PERIOD AMOUNT
------ ------
Closing Date through December 30, 2000 $55,000,000
December 31, 2001 through March 30, 2001 $40,000,000
March 31, 2001 through June 29, 2001 $15,000,000
June 30, 2001 and thereafter $35,000,000
provided further, that the Effective Amount of the Revolving Loans of any Bank
plus the participation of such Bank in the Effective Amount of all L/C
Obligations shall not at any time exceed such Bank's Pro Rata Share of the Total
Commitment. Within the limits of each Bank's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.1, prepay under Section 2.6 and reborrow under this Section 2.1.
2.2 Loan Accounts.
(a) The Loans made by each Bank and the Letters of Credit Issued by the
Issuing Bank shall be evidenced by one or more accounts or records maintained by
such Bank or Issuing Bank, as the case may be, in the ordinary course of
business. The accounts or records maintained by the Agent, the Issuing Bank and
each Bank shall be rebuttable presumptive evidence of the amount of the Loans
made by the Banks to the Company and the Letters of
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Credit Issued for the account of the Company, and the interest and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Company hereunder to pay any
amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the Agent, the Loans made by
such Bank may be evidenced by one or more Notes, instead of or in addition to
loan accounts. Each such Bank shall endorse on the schedules annexed to its
Note(s) the date, amount and maturity of each Loan made by it and the amount of
each payment of principal made by the Company with respect thereto. Each such
Bank is irrevocably authorized by the Company to endorse its Note(s) and each
Bank's record shall be conclusive absent manifest error; provided, however, that
the failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice of
Borrowing (or telephonic notice promptly confirmed in writing in the form of a
Notice of Borrowing), which notice must be received by the Agent prior to 10:30
a.m. (Applicable Time) (i) two Business Days prior to the requested Borrowing
Date, in the case of LIBO Rate Loans, or (ii) on the requested Borrowing Date,
in case of Base Rate Loans, in each case specifying:
(A) the amount of the Borrowing, which shall be in an aggregate minimum
amount of $500,000 or any multiple of $250,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of LIBO Rate
Loans, such Loan shall be a Base Rate Loan.
provided, however, that with respect to the Borrowing to be made on the
Closing Date, the Notice of Borrowing shall be delivered to the Agent not later
than 10:30 a.m. (Applicable Time) one Business Day before the Closing Date and
such Borrowing will consist of Base Rate Loans only.
(b) The Agent will promptly notify each Bank of its receipt of any Notice
of Borrowing and of the amount of such Bank's Pro Rata Share of that Borrowing.
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(c) Each Bank will make the amount of its Pro Rata Share of each Borrowing
available to the Agent for the account of the Company at the Agent's Payment
Office by 11:00 a.m. (Applicable Time) on the Borrowing Date requested by the
Company in funds immediately available to the Agent. The proceeds of all such
Loans will then be made available to the Company by the Agent at such office by
crediting the account of the Company on the books of Bank of America with the
aggregate of the amounts made available to the Agent by the Banks.
(d) After giving effect to any Borrowing, unless the Agent shall otherwise
consent, there may not be more than seven different Interest Periods in effect.
2.4 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or
as of the last day of the applicable Interest Period, in the case of LIBO
Rate Loans, to convert any such Loans (or any part thereof in an amount not
less than $500,000, or that is in an integral multiple of $250,000 in
excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to
continue any Revolving Loans having Interest Periods expiring on such day
(or any part thereof in an amount not less than $500,000, or that is in an
integral multiple of $250,000 in excess thereof);
provided, that if at any time the aggregate amount of LIBO Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $500,000, such LIBO Rate Loans shall automatically
convert into Base Rate Loans, and on and after such date the right of the
Company to continue such Loans as, and convert such Loans into, LIBO Rate Loans
shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 10:30 a.m. (Applicable Time) at least (i)
two Business Days in advance of the Conversion/ Continuation Date, if the Loans
are to be converted into or continued as LIBO Rate Loans, and (ii) on the
Business Day in advance of the Conversion/Continuation Date, if the Loans are to
be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
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(D) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to LIBO Rate
Loans, the Company has failed to select timely a new Interest Period to be
applicable to such LIBO Rate Loans or if any Default or Event of Default then
exists, the Company shall be deemed to have elected to convert such LIBO Rate
Loans into Base Rate Loans effective as of the expiration date of such Interest
Period.
(d) The Agent will promptly notify each Bank of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Company, the
Agent will promptly notify each Bank of the details of any automatic conversion.
All conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans with respect to which the
notice was given held by each Bank.
(e) Unless the Required Banks otherwise consent, during the existence of a
Default or Event of Default, the Company may not elect to have a Loan converted
into or continued as an LIBO Rate Loan.
(f) After giving effect to any conversion or continuation of Loans, unless
the Agent shall otherwise consent, there may not be more than seven different
Interest Periods in effect.
2.5 Voluntary Termination or Reduction of Commitments. The Company may,
upon not less than five Business Days' prior notice to the Agent, terminate the
Total Commitment, or permanently reduce the Total Commitment (or the L/C
Commitment) by an aggregate minimum amount of $5,000,000 or any multiple of
$500,000 in excess thereof; unless, after giving effect thereto and to any
prepayments of Loans made on the effective date thereof, (a) the Effective
Amount of all Revolving Loans, and L/C Obligations together would exceed the
amount of the Total Commitment then in effect, or (b) the Effective Amount of
all L/C Obligations then outstanding would exceed the L/C Commitment. Once
reduced in accordance with this Section, the Total Commitment may not be
increased. Any reduction of the Total Commitment shall be applied to each Bank
according to its Pro Rata Share. If and to the extent specified by the Company
in the notice to the Agent, some or all of the reduction in the Total Commitment
shall be applied to reduce the L/C Commitment. All accrued Commitment Fees and
letter of credit fees to, but not including, the effective date of any reduction
or termination of Total Commitment, shall be paid on the effective date of such
reduction or termination.
2.6 Optional Prepayments. Subject to Section 4.4, the Company may, at any
time or from time to time, ratably prepay Loans in whole or in part, in minimum
amounts of $500,000 or any multiple of $250,000 in excess thereof. Such notice
of prepayment shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid. The Agent will promptly notify each Bank of its
receipt of any such notice, and of such
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Bank's Pro Rata Share of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with, in the case of LIBO Rate Loans, accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 4.4.
2.7 Mandatory Prepayments. If on any date the Effective Amount of L/C
Obligations exceeds the L/C Commitment, the Company shall Cash Collateralize on
such date the outstanding Letters of Credit in an amount equal to the excess of
the maximum amount then available to be drawn under the Letters of Credit over
the Aggregate L/C Commitment. Subject to Section 4.4, if on any date after
giving effect to any Cash Collateralization made on such date pursuant to the
preceding sentence, the Effective Amount of all Revolving Loans then outstanding
plus the Effective Amount of all L/C Obligations exceeds the Total Commitment,
the Company shall immediately, and without notice or demand, prepay the
outstanding principal amount of the Revolving Loans and L/C Advances by an
amount equal to the applicable excess.
2.8 Repayment. The Company shall repay to the Banks on the Revolving
Termination Date the aggregate principal amount of Revolving Loans outstanding
on such date.
2.9 Interest.
(a) Each Revolving Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the applicable LIBO Rate or the Base Rate, as the case may be (and subject to
the Company's right to convert to other Types of Loans under Section 2.4), plus
or, in the case of a Base Rate Loan, minus the Applicable Margin.
(b) Interest on each Revolving Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid, in the case of LIBO Rate
Loans, on the date of any prepayment of such Loans under Section 2.6 or 2.7 for
the portion of the Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default, interest shall
be paid on demand of the Agent at the request or with the consent of the
Required Banks.
(c) Notwithstanding subsection (a) of this Section, while any Event of
Default exists or after acceleration, the Company shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the Applicable Margin then in effect for
such Loans and, in the case of Obligations not subject to an Applicable Margin,
at a rate per annum equal to the Base Rate plus 2%; provided, however, that, on
and after the expiration of any Interest Period applicable to any LIBO Rate Loan
outstanding on the
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date of occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, during the continuation of such Event of Default or
after acceleration, bear interest at a rate per annum equal to the Base Rate
plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations of the
Company to any Bank hereunder shall be subject to the limitation that payments
of interest shall not be required for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the provisions of any
law applicable to such Bank limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Bank, and in such event the
Company shall pay such Bank interest at the highest rate permitted by applicable
law.
2.10 Commitment Fees. In addition to certain fees described in Section 3.8,
the Company shall pay to the Agent for the account of each Bank a commitment fee
(the "Commitment Fee") on the average daily unused portion of such Bank's
Commitment, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily utilization for that quarter as
calculated by the Agent, equal to 0.25% per annum. For purposes of calculating
utilization under this subsection, the Total Commitment shall be deemed used to
the extent of the Effective Amount of Revolving Loans then outstanding, plus the
Effective Amount of L/C Obligations then outstanding. Such Commitment Fee shall
accrue from the Closing Date to the Revolving Termination Date and shall be due
and payable quarterly in arrears on the last Business Day of each calendar
quarter, commencing on the first such quarterly date to occur after the Closing
Date, through the Revolving Termination Date, with the final payment to be made
on the Revolving Termination Date; provided that, in connection with any
reduction or termination of Total Commitment under Section 2.5 or Section 2.7,
the accrued Commitment Fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The Commitment
Fees provided in this subsection shall accrue at all times during the
above-mentioned period, including at any time during which one or more
conditions in Article V are not met.
2.11 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
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(b) Each determination of an interest rate by the Agent shall be conclusive
and binding on the Company and the Banks in the absence of manifest error. The
Agent will, at the request of the Company or any Bank, deliver to the Company or
the Bank, as the case may be, a statement showing the quotations used by the
Agent in determining any interest rate and the resulting interest rate.
2.12 Payments by the Company.
(a) All payments to be made by the Company shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Agent for the account of the Banks
at the Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 12:00 p.m. (Applicable Time) on the date
specified herein. The Agent will promptly distribute to each Bank its Pro Rata
Share (or other applicable share as expressly provided herein) of such payment
in like funds as received. Any payment received by the Agent later than 12:00
p.m. (Applicable Time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Company prior to the date on
which any payment is due to the Banks that the Company will not make such
payment in full as and when required, the Agent may assume that the Company has
made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such Bank
until the date repaid.
2.13 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to the Closing
Date or, with respect to any Borrowing after the Closing Date, on the date of
such Borrowing, that such Bank will not make available as and when required
hereunder to the Agent for the account of the Company the amount of that Bank's
Pro Rata Share of the Borrowing, the Agent may assume that each Bank has made
such amount available to the Agent in immediately available funds on the
Borrowing Date and the Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately
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available funds and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Bank's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Company of such failure to fund and, upon demand by the
Agent, the Company shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing Date shall
not relieve any other Bank of any obligation hereunder to make a Loan on such
Borrowing Date, but no Bank shall be responsible for the failure of any other
Bank to make the Loan to be made by such other Bank on any Borrowing Date.
2.14 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Loans and L/C Obligations held by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 12.10) with respect to such
participation as fully as if such Bank were the direct creditor of the Company
in the amount of such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks following
any such purchases or repayments.
ARTICLE III
THE LETTERS OF CREDIT
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3.1 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) the Issuing Bank
agrees, (A) from time to time on any Business Day during the period from the
Closing Date to the Revolving Termination Date to issue Letters of Credit for
the account of the Company and/or, subject to Section 3.10 and subject to Agent
receiving such documentation in form and substance satisfactory to it, for the
joint and several account of the Company and the Domestic Subsidiaries (the
Company and each such Domestic Subsidiary are referred to herein individually as
an "Account Party" and collectively as the "Account Parties"), and to amend or
renew Letters of Credit previously issued by it, in accordance with subsections
3.2(c) and 3.2(d), and (B) to honor drafts under the Letters of Credit; and (ii)
the Banks severally agree to participate in Letters of Credit Issued for the
account of the Account Parties; provided, that the Issuing Bank shall not be
obligated to Issue, and no Bank shall be obligated to participate in, any Letter
of Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date") and after taking into account all repayment of Revolving Loans received
on such date (1) the Effective Amount of all L/C Obligations plus the Effective
Amount of all Revolving Loans exceeds the Total Commitment, (2) the
participation of any Bank in the Effective Amount of all L/C Obligations plus
the Effective Amount of the Revolving Loans of such Bank exceeds such Bank's
Commitment, or (3) the Effective Amount of L/C Obligations exceeds the L/C
Commitment. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Account Parties' ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, the Account Parties may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired, been terminated or which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue any Letter of Credit
if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from Issuing such Letter of Credit, or any Requirement of Law
applicable to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Bank with respect to
such Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(ii) the Issuing Bank has received written notice from any Bank, the
Agent or the applicable Account Party, on or prior to the Business Day
prior to the requested date of Issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Article V is not then
satisfied;
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(iii) the expiry date of any requested Letter of Credit is (A) more
than 360 days after the date of Issuance, unless the Required Banks have
approved such expiry date in writing, or (B) within 90 days after the
Revolving Termination Date, unless all of the Banks have approved such
expiry date in writing or the applicable Account Party has theretofore
agreed in writing in a form reasonably acceptable to the Agent and the
Issuing Bank to provide on or before the Revolving Termination Date Cash
Collateral or a letter of credit in form and substance and issued by a
financial institution reasonably acceptable to the Agent and the Issuing
Bank; it being understood that if the expiry date of any requested Letter
of Credit is within 90 days after the Revolving Termination Date, the
applicable Account Party shall provide on or before the Revolving
Termination Date Cash Collateral in the face amount of such Letter of
Credit.
(iv) the expiry date of any requested Letter of Credit is prior to the
maturity date of any financial obligation to be supported by the requested
Letter of Credit;
(v) any requested Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to the Issuing Bank, or the
Issuance of a Letter of Credit shall violate any applicable policies of the
Issuing Bank; or
(vi) any standby Letter of Credit is for the purpose of supporting the
issuance of any letter of credit by any other Person.
3.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the applicable Account Party received by the Issuing Bank (with a
copy sent by the Account Party to the Agent) at least three Business Days (or
such shorter time as the Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Bank: (i) the proposed date of
issuance of the Letter of Credit (which shall be a Business Day); (ii) the face
amount of the Letter of Credit; (iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary thereof; (v) the documents to be
presented by the beneficiary of the Letter of Credit in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (vii) such other matters as
the Issuing Bank may require.
(b) At least two Business Days prior to the Issuance of any Letter of
Credit (or such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion), the Issuing Bank will confirm with the Agent
(by telephone or in writing) that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the applicable Account Party and,
if not, the Issuing Bank will provide the Agent with a copy thereof. Unless the
Issuing Bank has received notice on or before the Business Day immediately
preceding the
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date the Issuing Bank is to issue a requested Letter of Credit from the Agent
(A) directing the Issuing Bank not to issue such Letter of Credit because such
issuance is not then permitted under subsection 3.1(a) as a result of the
limitations set forth in clauses (1) through (3) thereof; or (B) that one or
more conditions specified in Article V are not then satisfied; then, subject to
the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the applicable Account Parties in
accordance with the Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and prior to
the Revolving Termination Date, the Issuing Bank will, upon the written request
of the applicable Account Parties received by the Issuing Bank (with a copy sent
by the applicable Account Party to the Agent) at least five days (or such
shorter time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Letter of Credit
issued by it. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original writing, made in the
form of an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall be under no
obligation to amend any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended form under
the terms of this Agreement; or (B) the beneficiary of any such letter of Credit
does not accept the proposed amendment to the Letter of Credit. The Agent will
promptly notify the Banks of the receipt by it of any L/C Application or L/C
Amendment Application.
(d) The Issuing Bank and the Banks agree that, while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, at the option of the
applicable Account Party and upon the written request of the applicable Account
Party received by the Issuing Bank (with a copy sent by the applicable Account
Party to the Agent) at least five days (or such shorter time as the Issuing Bank
may agree in a particular instance in its sole discretion) prior to the proposed
date of notification of renewal, the Issuing Bank shall be entitled to authorize
the automatic renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment Application,
and shall specify in form and detail satisfactory to the Issuing Bank: (i) the
Letter of Credit to be renewed; (ii) the proposed date of notification of
renewal of the Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of the Letter of Credit; and (iv) such other matters as the
Issuing Bank may require. The Issuing Bank shall be under no obligation so to
renew any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to issue or amend such Letter of Credit in its renewed form under the
terms of this Agreement; or (B) the beneficiary of any such Letter of Credit
does not accept the proposed renewal of the Letter of Credit. If any outstanding
Letter of Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that
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such Letter of Credit shall not be renewed, and if at the time of renewal the
Issuing Bank would be entitled to authorize the automatic renewal of such Letter
of Credit in accordance with this subsection 3.2(d) upon the request of the
Account Party but the Issuing Bank shall not have received any L/C Amendment
Application from an applicable Account Party with respect to such renewal or
other written direction by the applicable Account Party with respect thereto,
the Issuing Bank shall nonetheless be permitted to allow such Letter of Credit
to renew, and the applicable Account Party and the Banks hereby authorize such
renewal, and, accordingly, the Issuing Bank shall be deemed to have received an
L/C Amendment Application from the applicable Account Party requesting such
renewal.
(e) Subject to the provisions of subsection 3.1(b)(iii), the Issuing Bank
may, at its election (or as required by the Agent at the direction of the
Required Banks), deliver any notices of termination or other communications to
any Letter of Credit beneficiary or transferee, and take any other action as
necessary or appropriate, at any time and from time to time, in order to cause
the expiry date of such Letter of Credit to be a date not later than the
Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent, concurrently or
promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
3.3 Existing Bank of America Letters of Credit; Risk Participations,
Drawings and Reimbursements.
(a) On and after the Closing Date, the Existing Bank of America Letters of
Credit shall be deemed for all purposes, including for purposes of the fees to
be collected pursuant to subsections 3.8(a) and 3.8(c), and reimbursement of
costs and expenses to the extent provided herein, Letters of Credit outstanding
under this Agreement and entitled to the benefits of this Agreement and the
other Loan Documents, and shall be governed by the applications and agreements
pertaining thereto and by this Agreement. Each Bank shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank
on the Closing Date a participation in each such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) such Bank's Pro Rata
Share times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For purposes of subsection
2.1(b) and subsection 2.10(b), the Existing Bank of America Letters of Credit
shall be deemed to utilize pro rata the Commitment of each Bank.
(b) Immediately upon the Issuance of each Letter of Credit in addition to
those described in subsection 3.3(a), each Bank shall be deemed to, and hereby
irrevocably and
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unconditionally agrees to, purchase from the Issuing Bank a participation in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Pro Rata Share of such Bank, times (ii) the maximum amount
available to be drawn under such Letter of Credit or Time Draft and the amount
of such drawing, respectively. For purposes of subsection 2.1, each Issuance of
a Letter of Credit shall be deemed to utilize the Commitment of each Bank by an
amount equal to the amount of such participation.
(c) In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the Issuing Bank will promptly notify the
applicable Account Party, which notification will, in any event, be received by
the applicable Account Party on the same Business Day any such request is
received by the Issuing Bank before 4 p.m. and on the next Business Day, if such
request is received after 4 p.m. The applicable Account Party shall reimburse
the Issuing Bank prior to 10:30 a.m. (Applicable Time), on each date that any
amount is paid by the Issuing Bank under any Letter of Credit (each such date,
an "Honor Date"), in an amount equal to the amount so paid by the Issuing Bank.
In the event the applicable Account Party fails to reimburse the Issuing Bank
for the full amount of any drawing under any Letter of Credit by 10:30 a.m.
(Applicable Time) on the Honor Date, the Issuing Bank will promptly notify the
Agent and the Agent will promptly notify each Bank thereof, and the Company
shall be deemed to have requested that Base Rate Loans be made by the Banks to
be disbursed to the Company on the Honor Date under such Letter of Credit,
subject to the Effective Amount of the unutilized portion of the Total
Commitment and subject to the conditions set forth in Section 5.2. Any notice
given by the Issuing Bank or the Agent pursuant to this subsection 3.3(c) may be
oral if immediately confirmed in writing (including by facsimile); provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to subsection 3.3(c) make
available to the Agent for the account of the Issuing Bank an amount in Dollars
and in immediately available funds equal to its Pro Rata Share of the amount of
the drawing, whereupon the participating Banks shall (subject to subsection
3.3(e)) each be deemed to have made a Revolving Loan consisting of a Base Rate
Loan to the Company in that amount. If any Bank so notified fails to make
available to the Agent for the account of the Issuing Bank the amount of such
Bank's Pro Rata Share of the amount of the drawing by no later than 12:00 noon
(Applicable Time) on the Honor Date, then interest shall accrue on such Bank's
obligation to make such payment, from the Honor Date to the date such Bank makes
such payment, at a rate per annum equal to the Federal Funds Rate in effect from
time to time during such period. The Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Agent to give any such notice
on the Honor Date or in sufficient time to enable any Bank to effect such
payment on such date shall not relieve such Bank from its obligations under this
Section 3.3.
(e) With respect to any unreimbursed drawing that is not converted into
Revolving Loans consisting of Base Rate Loans to the Company in whole or in
part, because of the Company's failure to satisfy the conditions set forth in
Section 5.2 or for any other reason, the
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Company shall be deemed to have incurred from the Issuing Bank an L/C Borrowing
in the amount of such drawing, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at a rate per annum
equal to the Base Rate plus 2% per annum, and each Bank's payment to the Issuing
Bank pursuant to subsection 3.3(d) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Bank in satisfaction of its participation obligation under this Section
3.3.
(f) Each Bank's obligation in accordance with this Agreement to make the
Revolving Loans or L/C Advances, as contemplated by this Section 3.3, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the Issuing Bank, the
Account Party or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default, an Event of Default or a Material Adverse Effect;
or (iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, however, that each Bank's obligation
to make Revolving Loans under this Section 3.3 is subject to the conditions set
forth in Section 5.2.
3.4 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of the
Issuing Bank of immediately available funds from the applicable Account Party
(i) in reimbursement of any payment made by the Issuing Bank under the Letter of
Credit with respect to which any Bank has paid the Agent for the account of the
Issuing Bank for such Bank's participation therein pursuant to Section 3.3 or
(ii) in payment of interest thereon, the Agent will pay to each Bank, in the
same funds as those received by the Agent for the account of the Issuing Bank,
the amount of such Bank's Pro Rata Share of such funds, and the Issuing Bank
shall receive the amount of the Pro Rata Share of such funds of any Bank that
did not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to return to
the applicable Account Party, or to a trustee, receiver, liquidator, custodian,
or any official in any Insolvency Proceeding, any portion of the payments made
by the Company or the other applicable Account Party to the Agent for the
account of the Issuing Bank pursuant to subsection 3.4(a) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Agent, forthwith return to the Agent or the Issuing Bank
the amount of its Pro Rata Share of any amounts so returned by the Agent or the
Issuing Bank plus interest thereon from the date such demand is made to the date
such amounts are returned by such Bank to the Agent or the Issuing Bank, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Bank.
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(a) Each Bank, the Company and the other Account Parties agree that, in
paying any drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft, document and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy (other than conformity with the draw
requirements of such Letter of Credit) of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Bank shall be liable to any Bank for:
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Banks (including the Required Banks, as applicable); (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company and the other Account Parties hereby assume all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Company's or any other Account Party's pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the Issuing Bank, shall
be liable or responsible for any of the matters described in clauses (i) through
(vii) of Section 3.6; provided, however, anything in such clauses to the
contrary notwithstanding, that the Company or the other Account Parties may have
a claim against the Issuing Bank, and the Issuing Bank may be liable to the
Company or the other Account Parties, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered by the
Company or the other Account Parties which were caused by the Issuing Bank's
willful misconduct or gross negligence (which shall include payment against
non-conforming draw request documentation) or the Issuing Bank's willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft, documents and certificate(s) strictly complying
with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; and (ii)
the Issuing Bank shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of each Account Party under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-
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Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or any
L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Company in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other right that
the Company may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with this Agreement, the transactions contemplated
hereby or by the L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment made by the Issuing Bank under any Letter of Credit
to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of
any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.
3.7 Cash Collateral Pledge. Upon (i) the request of the Agent, (A) if the
Issuing Bank has honored any full or partial drawing request on any Letter of
Credit and such drawing has resulted in an L/C Borrowing hereunder, or (B) if,
as of the date which is 30 Business Days prior to the Revolving Termination
Date, any Letters of Credit may for any reason remain outstanding and partially
or wholly undrawn, or (ii) the occurrence of the circumstances described in
Section 2.7 requiring the Company to Cash Collateralize
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Letters of Credit, then, the Company shall immediately Cash Collateralize the
L/C Obligations in the amount required by Section 2.7.
3.8 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the ratable account of each of
the Banks a letter of credit fee with respect to the Letters of Credit, such fee
to be equal to (i) in the case of each standby Letter of Credit, 1.75% per annum
on the average daily maximum amount available to be drawn on such standby Letter
of Credit, and (ii) in the case of each commercial or trade Letter of Credit,
such fees customarily charged by the Issuing Bank in connection with the
issuance, negotiation and payment of letters of credit and drafts drawn
thereunder. Such fees shall be computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter based upon Letters of Credit
outstanding for that quarter, as calculated by the Agent. Such letter of credit
fees shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter during which Letters of Credit are outstanding, commencing
on the first such quarterly date to occur after the Closing Date, through the
Revolving Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on the
Revolving Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a letter of credit such
fronting fees for each Letter of Credit Issued by the Issuing Bank after the
Closing Date as are customarily charged by the Issuing Bank in connection with
the issuance, negotiation and payment of letters of credit and drafts drawn
thereunder. Such Letter of Credit fronting fee shall be due and payable on each
date of Issuance of a Letter of Credit.
(c) The Company shall pay to the Issuing Bank from time to time on demand
the normal issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the Issuing Bank relating to letters of
credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of Credit.
3.10 Guaranty of the Company. The Company hereby unconditionally guaranties
all L/C Obligations of all Account Parties and agrees to pay or cause each
Account Party to pay to the Issuing Bank when due all L/C Obligations of such
Account Party.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.
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(a) Any and all payments by the Company to each Bank or the Agent under
this Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, the Company shall
pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section),
such Bank or the Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no such deductions
or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with applicable
law; and
(iv) the Company shall also pay to each Bank or the Agent for the
account of such Bank, at the time interest is paid, Further Taxes in the
amount that the respective Bank specifies in good faith as necessary to
preserve the after-tax yield the Bank would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Bank and the
Agent for the full amount of i) Taxes, ii) Other Taxes, and iii) Further Taxes
in the amount that the respective Bank specifies in good faith as necessary to
preserve the after-tax yield the Bank would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date the Bank or the Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the Company of Taxes,
Other Taxes or Further Taxes, the Company shall furnish to each Bank or the
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to such Bank or the Agent.
(e) If the Company is required to pay any amount to any Bank or the Agent
pursuant to subsection (b) or (c) of this Section, then such Bank shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Company which may thereafter accrue, if such change in the sole
judgment of such Bank is not otherwise disadvantageous to such Bank.
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4.2 Illegality.
(a) If any Bank determines that the introduction of any Requirement of Law,
or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable Lending Office to make LIBO Rate Loans, then, on
notice thereof by the Bank to the Company through the Agent, any obligation of
that Bank to make LIBO Rate Loans shall be suspended until the Bank notifies the
Agent and the Company that the circumstances giving rise to such determination
no longer exist.
(b) If a Bank determines that it is unlawful to maintain any LIBO Rate
Loan, the Company shall, upon its receipt of notice of such fact and demand from
such Bank (with a copy to the Agent), prepay in full such LIBO Rate Loans of
that Bank then outstanding, together with interest accrued thereon and amounts
required under Section 4.4, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such LIBO Rate Loans to
such day, or immediately, if the Bank may not lawfully continue to maintain such
LIBO Rate Loan. If the Company is required to so prepay any LIBO Rate Loan, then
concurrently with such prepayment, the Company shall borrow from the affected
Bank, and the affected Bank shall lend in the amount of such repayment, a Base
Rate Loan.
(c) If the obligation of any Bank to make or maintain LIBO Rate Loans has
been so terminated or suspended, the Company may elect, by giving notice to the
Bank through the Agent that all Loans which would otherwise be made by the Bank
as LIBO Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section, the affected
Bank shall designate a different Lending Office with respect to its LIBO Rate
Loans if such designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of the Bank, be illegal or otherwise
disadvantageous to the Bank.
4.3 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the introduction of or
any change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the LIBO Rate or in respect of the
assessment rate payable by any Bank to the FDIC for insuring U.S. deposits) in
or in the interpretation of any law or regulation or (ii) the compliance by that
Bank with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to such Bank of agreeing to make or making, funding or maintaining
any LIBO Rate Loans or participating in Letters of Credit, or, in the case of
the Issuing Bank, any increase in the cost to the Issuing Bank of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to time, upon demand
(with a
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copy of such demand to be sent to the Agent), pay to the Agent for the account
of such Bank, additional amounts as are sufficient to compensate such Bank for
such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank with any Capital
Adequacy Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitment, loans, credits or obligations under this Agreement, then, upon
demand of such Bank to the Company through the Agent, the Company shall pay to
the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
4.4 Funding Losses. The Company shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely basis any payment of
principal of any LIBO Rate Loan;
(b) the failure of the Company to borrow, continue or convert a LIBO Rate
Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment of a LIBO Rate Loan
in accordance with any notice delivered under Section 2.6;
(d) the prepayment (including pursuant to Section 2.7) or other payment
(including after acceleration thereof) of an LIBO Rate Loan on a day that is not
the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any LIBO Rate Loan to a
Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBO Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Banks under this Section and
under subsection 4.3(a), each LIBO Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be
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conclusively deemed to have been funded at the IBOR used in determining the LIBO
Rate for such LIBO Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such LIBO Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If any Bank or the Agent determines that
for any reason adequate and reasonable means do not exist for determining the
LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate
Loan or that the LIBO Rate applicable for any requested Interest Period with
respect to a proposed LIBO Rate Loan does not adequately and fairly reflect the
cost to such Banks of funding such Loan, the Agent will promptly so notify the
Company and each Bank. Thereafter, the obligation of the Banks to make or
maintain LIBO Rate Loans hereunder shall be suspended until the Agent upon the
instruction of the Required Banks revokes such notice in writing. Upon receipt
of such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate Loans
instead of LIBO Rate Loans.
4.6 Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article IV shall deliver to the Company (with a copy to the Agent)
within six months of the date on which such Bank becomes entitled to claim such
reimbursement or compensation a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
4.7 Survival. The agreements and obligations of the Company in this Article
IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions. The obligation of each Bank to
make its initial Credit Extension hereunder is subject to the condition that the
Agent shall have received on or before all of the following, in form and
substance satisfactory to the Agent and each Bank, and in sufficient copies for
each Bank:
(a) Credit Agreement, Notes and Guaranties. (i) This Agreement and the
Notes (if any) executed by the Company and (ii) the Guaranties executed by
Domestic Subsidiaries set forth on Schedule 5.1 (such Domestic Subsidiaries and
any additional Domestic Subsidiaries that the Agent may request from time to
time to execute the Guaranty are referred to herein collectively as the
"Guarantors");
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(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Company and each Guarantor authorizing the transactions contemplated
hereby, certified as of the Closing Date by the Secretary or an Assistant
Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company and each Guarantor certifying the names and true signatures of the
officers of the Company or such Guarantor authorized to execute, deliver
and perform, as applicable, this Agreement and all other Loan Documents to
be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following documents:
(i) the articles or certificate of incorporation or formation and the
bylaws or operating agreements, as applicable, of the Company and each
Guarantor, as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company or such Guarantor as of the Closing
Date; and
(ii) a good standing and, where applicable, tax good standing
certificate for the Company and each Guarantor from the Secretary of State
(or similar, applicable Governmental Authority) of its state of
incorporation or formation, as applicable, as of a recent date;
(d) Legal Opinions. An opinion of Xxxxxxx X. Xxxxxx, Vice President,
Secretary and General Counsel of the Company and addressed to the Agent and the
Banks, substantially in the form of Exhibit D;
(e) Payment of Fees. Evidence of payment by the Company of all accrued and
unpaid fees, costs and expenses to the extent then due and payable hereunder on
the Closing Date, together with Attorney Costs of Bank of America to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute Bank of America's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and Bank of America); including any such costs,
fees and expenses arising under or referenced in Sections 2.10 and 12.4;
(f) Certificate. A certificate signed by a Responsible Officer, dated as of
the Closing Date, stating that:
(i) the representations and warranties contained in Article VI are
true and correct in all material respects on and as of such date, as though
made on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date,
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in which case they shall be true and correct in all material respects as of
such earlier date);
(ii) no Default or Event of Default exists or would result from the
Credit Extension; and
(iii) there has occurred since March 31, 2000, no event or circumstance
that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(g) Existing Credit Facilities. Evidence that all Indebtedness, if any,
(other than the Existing Bank of America Letters of Credit) under that certain
Credit Agreement, dated as of October 15, 1996, as amended, by and between the
Company and Bank of America Illinois, as the Lender, has been repaid; it being
understood, and the Company hereby acknowledges and agrees, that as of the
Closing Date all of the commitments of Bank of America to extend credit
thereunder have been terminated and that, to the extent that any Indebtedness
and other amounts (other than the Existing Bank of America Letters of Credit)
are outstanding thereunder as of the Closing Date, the proceeds of the initial
Loans hereunder shall be used to repay in full such Indebtedness and other
amounts.
(h) Other Documents. Such other approvals, opinions, documents or materials
as the Agent or any Bank may request.
5.2 Conditions to All Credit Extensions. The obligation of each Bank to
make any Revolving Loan to be made by it (including its initial Revolving Loan)
or to continue or convert any Revolving Loan under Section 2.4 and the
obligation of the Issuing Bank to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date, Conversion/Continuation
Date or Issuance Date:
(a) Notice, Application. The Agent shall have received (with, in the case
of the initial Revolving Loan only, a copy for each Bank) a Notice of Borrowing
or a Notice of Conversion/Continuation, as applicable or in the case of any
Issuance of any Letter of Credit, the Issuing Bank and the Agent shall have
received an L/C Application or L/C Amendment Application, as required under
Section 3.2;
(b) Continuation of Representations and Warranties. The representations and
warranties in Article VI shall be true and correct in all material respects on
and as of such Borrowing Date or Conversion/Continuation Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier
date); and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from
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such Borrowing or continuation or conversion or Issuance.
Each Notice of Borrowing, Notice of Conversion/Continuation and L/C
Application or L/C Amendment Application submitted by the Company hereunder
shall constitute a representation and warranty by the Company hereunder, as of
the date of each such notice and as of each Borrowing Date,
Conversion/Continuation Date, or Issuance Date, as applicable, that the
conditions in this Section 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.1 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law; except, in each case
referred to in clause (b), clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.2 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company and its Subsidiaries of this Agreement and each other
Loan Document to which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's Organization Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any material Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
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(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of the Agreement or any other Loan Document to which
each is a party.
6.4 Binding Effect. This Agreement and each other Loan Document to which
the Company or any of its Subsidiaries is a party constitute the legal, valid
and binding obligations of the Company and any of its Subsidiaries to the extent
it is a party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
6.5 Litigation. Except as specifically disclosed in Schedule 6.5, there are
no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Company, threatened, at law, in equity, in arbitration or
before any Governmental Authority, against the Company, or its Subsidiaries or
any of their respective properties which:
(a) purport to affect to this Agreement or any other Loan Document, or any
of the transactions contemplated hereby or thereby; or
(b) would reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
6.6 No Default. As of the date of incurrence of any Obligations by the
Company, no Default or Event of Default exists or would result from such
incurrence. As of the Closing Date, neither the Company nor any Subsidiary is in
default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that would, if such default had
occurred after the Closing Date, create an Event of Default under subsection
10.1(e).
6.7 ERISA Compliance. Except as specifically disclosed in Schedule 6.7:
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law. Each Plan which is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the
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best knowledge of the Company, nothing has occurred which would cause the loss
of such qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) the aggregate Unfunded Pension Liability for all Pension Plans is less than
$1,000,000; (iii) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability in excess of $500,000 under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability in excess
of $500,000 (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Company
nor any ERISA Affiliate has engaged in a transaction that reasonably could be
subject to Section 4069 or 4212(c) of ERISA.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 7.12 and
Section 8.7. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 Title to Properties. The Company and each Subsidiary have good record
and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not reasonably,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required by law to be filed, and have
paid all Federal and other material taxes, assessments, fees and other
governmental charges thereby shown to be owing except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that would, if made, have a
Material Adverse Effect.
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6.11 Financial Condition.
(a) The audited consolidated financial statements of the Company and its
Subsidiaries dated June 30, 1999, the unaudited consolidated and consolidating
financial statements of the Company and its Subsidiaries dated March 31, 2000
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal year or quarter, as the case may be, ended
on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein and, in the case of the unaudited financial statements, subject to
ordinary, good faith year end audit adjustments and the absence of complete
footnotes;
(ii) fairly present the financial condition of the Company and its
Subsidiaries as of the respective dates thereof and results of operations
for the period covered thereby;
(b) Since June 30, 2000 there has been no Material Adverse Effect.
6.12 Environmental Matters. The Company conducts in the ordinary course of
business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in Schedule 6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other similar
Federal or state statute or regulation limiting its ability to incur
Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary is
a party to or bound by any Contractual Obligation, or subject to any restriction
in any Organization Document, or any Requirement of Law, which could reasonably
be expected to have a Material Adverse Effect.
6.15 Subsidiaries. As of the Closing Date, the Company has no Subsidiaries
other than those specifically disclosed in part (a) of Schedule 6.15 hereto and
has no equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.15.
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6.16 Insurance. Except as specifically disclosed in Schedule 6.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
6.17 Swap Obligations. Neither the Company nor any of its Subsidiaries has
any outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations. The Company has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has considered appropriate
means of mitigating and managing risks associated with such matters.
6.18 Full Disclosure. None of the representations or warranties made by the
Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary under the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as of
the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in writing:
7.1 Financial Statements. The Company shall deliver to the Agent, in form
and detail reasonably satisfactory to the Agent, with sufficient copies for each
Bank:
(a) as soon as available, but not later than 90 days after the end of each
fiscal year (commencing with the fiscal year ended June 30, 2000), a copy of the
audited consolidated balance sheet of the Company and its Subsidiaries as at the
end of such year and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of Ernst & Young LLP or another nationally-recognized
independent public accounting firm ("Independent Auditor") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of
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any material portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the end of each
fiscal quarter (commencing with the fiscal quarter ended September 30, 2000), a
copy of the unaudited consolidated and consolidating balance sheets of the
Company and its Subsidiaries as of the end of such fiscal quarter and the
related consolidated statements of income, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of such
fiscal quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit adjustments
and the absence of complete footnotes), the financial position and the results
of operations of the Company and the Subsidiaries; and
(c) as soon as available, but not later than 90 days after the end of each
fiscal year (commencing with the fiscal year ended June 30, 2000), a copy of an
unaudited consolidating balance sheet of the Company and its Subsidiaries as at
the end of such year and the related consolidating statement of income for such
year, certified by a Responsible Officer as having been developed and used in
connection with the preparation of the financial statements referred to in
subsection 7.1(a).
7.2 Certificates; Other Information. The Company shall furnish to the
Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements referred to
in subsection 7.1(a) (but commencing with fiscal year ended June 30, 2001), a
certificate of the Independent Auditor stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) no later than 30 days after the end of each month, a Compliance
Certificate executed by a Responsible Officer;
(c) promptly, copies of all financial statements and reports that the
Company sends to its shareholders generally, and copies of all financial
statements and regular, periodical or special reports (including Forms 10K, 10Q
and 8K) that the Company or any Subsidiary may make to, or file with, the SEC;
(d) promptly, such additional information regarding the business, financial
or corporate affairs of the Company or any Subsidiary as the Agent, at the
request of any Bank, may from time to time reasonably request; and
(e) as soon as available, but not later than 90 days after the commencement
of each fiscal year, an annual budget for the Company and its Subsidiaries on a
consolidated basis by quarter for such fiscal year.
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7.3 Notices. The Company shall promptly notify the Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or reasonably may result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the Company
or any Subsidiary and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding affecting the
Company or any Subsidiary; including pursuant to any applicable Environmental
Laws;
(c) of the occurrence of any of the following events affecting the Company
or any ERISA Affiliate (but in no event more than 10 days after such event
becomes known to the Company), and deliver to the Agent and each Bank a copy of
any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Company or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iii) the adoption of, or the commencement of contributions to, any
Plan subject to Section 412 of the Code by the Company or any ERISA
Affiliate; or
(iv) the adoption of any amendment to a Plan subject to Section 412 of
the Code, if such amendment results in a material increase in contributions
or Unfunded Pension Liability.
(d) of any material change in accounting policies or financial reporting
practices by the Company or any of its consolidated Subsidiaries; and
(e) upon the request from time to time of the Agent, the Swap Termination
Values, together with a description of the method by which such values were
determined, relating to any then-outstanding Swap Contracts to which the Company
or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a written statement
by a Responsible Officer setting forth details of the occurrence referred to
therein, and stating what action the Company or any affected Subsidiary proposes
to take with respect thereto and at what time. Each notice under subsection
7.3(a) shall describe with particularity any and all clauses or provisions of
this Agreement or other Loan Document that have been (or foreseeably will be)
breached or violated.
7.4 Preservation of Corporate Existence, Etc. The Company shall, and shall
cause each Subsidiary to:
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(a) preserve and maintain in full force and effect its corporate existence
and good standing under the laws of its state or jurisdiction of incorporation
except in connection with transactions permitted by Section 8.3 and except for
the non-preservation of which could not be reasonably expected to have a
Material Adverse Effect;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business except in connection with
transactions permitted by Section 8.3 and sales of assets permitted by Section
8.2 and except for the non-preservation of which could not be reasonably
expected to have a Material Adverse Effect;
(c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could not be reasonably
expected to have a Material Adverse Effect.
7.5 Maintenance of Property. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good repair and working order and condition, ordinary
wear and tear excepted and make necessary repairs thereto and renewals and
replacements thereof so that its business carried on in connection therewith may
be properly conducted, unless the Company determines in good faith that the
continued maintenance of any specific property is no longer economically
desirable and except for non-maintenance of any specific property which could
not be reasonably expected to have a Material Adverse Effect.
7.6 Insurance. The Company shall maintain, and shall cause each Subsidiary
to maintain, with financially sound and reputable independent insurers,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all material tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
(b) all material lawful claims which, if unpaid, would by law become a
Lien (other than a Permitted Lien) upon its property, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; and
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(c) all indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
7.8 Compliance with Laws. The Company shall comply, and shall cause each
Subsidiary to comply, with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act), except such as may be contested in good faith or as to which a
bona fide dispute may exist or if noncompliance could not reasonably be expected
to have a Material Adverse Effect.
7.9 Compliance with ERISA. The Company shall, and shall cause each of its
ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at the expense of
the Company and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, when an Event of Default exists the Agent or any
Bank may do any of the foregoing at the expense of the Company at any time
during normal business hours and without advance notice.
7.11 Environmental Laws. The Company shall, and shall cause each Subsidiary
to, conduct its operations and keep and maintain its property in compliance with
all Environmental Laws, except to the extent any failure to do so could not
reasonably be expected to have a Material Adverse Effect.
7.12 Use of Proceeds. The Company shall use the proceeds of the Loans (i)
to refinance existing Indebtedness, and (ii) for working capital purposes.
7.13 Subsidiary Guaranties. (i) Within 60 days after the acquisition or
creation of any Domestic Subsidiary, cause such Subsidiary to execute and
deliver to the Agent a
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Guaranty, accompanied by such supporting documentation, including resolutions,
an incumbency certificate, and an opinion of counsel, as Agent may require, and
(ii) thereafter cause such Subsidiary to keep such Guaranty in full force and
effect.
7.14 Maintenance of Bank Accounts. To provide additional security for the
Obligations, including set-off rights under Section 12.10, maintain or cause to
be maintained with the Agent all of the primary bank accounts of the Company and
any Subsidiary having a principal office located within any of the 00 xxxxxxxxxx
xxxxxx xx xxx Xxxxxx Xxxxxx.
7.15 Collateral. No later than 30 days after the Closing Date, the Company
(i) shall grant and cause each of its Subsidiaries to grant to the Agent, for
the prorata benefit of the Banks, as security for the Obligations, and subject
to Permitted Liens, a first lien upon and security interest in all of the assets
of every description (whether now or hereafter existing or acquired) of the
Company and its Subsidiaries, and (ii) at its expense, execute and deliver and
cause to be executed and delivered to the Agent such security agreements, pledge
agreements, UCC financing statements, stock or bond powers, waivers and
consents, opinions of counsel and other documents as the Agent or the Required
Banks shall request (collectively, "Collateral Documents"), and take such
further action as may be required under applicable law, or as the Agent or the
Required Banks may request, in order to grant, preserve, protect and perfect the
validity and first priority of the security interests created pursuant to such
Collateral Documents; it being understood, that the grant of such lien and
security interest shall only be effective on the occurrence of the earlier of
(a) Default or Event of Default or (b) Trigger Event (the date of such
effectiveness is hereinafter referred to as the "Attachment Date").
Notwithstanding the foregoing, (A) the Company shall not be required to grant or
cause any of its Subsidiaries to grant to the Agent a lien upon or security
interest in real property (except, however, insofar as personal property
constitutes fixtures), (B) no UCC financing statements, security agreements or
other Collateral Documents shall be filed or made of record before the
Attachment Date (but shall be filed and made of record on or after the
Attachment Date as the Agent shall determine; the Agent shall give notice of
such filing to the Company, but the failure to give such notice shall not affect
the validity or effectiveness of such filing) and (C) the Company shall make
disclosure of the grant of liens and security interests and the conditions of
their effectiveness pursuant to this Section 7.15 in its filings with the SEC
and in its financial statements, and, additionally, in other public documents
where such disclosure is required or where its omission would be misleading.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in writing:
8.1 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any Subsidiary on the
Closing Date and set forth in Schedule 8.1;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which
are not delinquent or remain payable without penalty, or to the extent that
non-payment thereof is permitted by Section 7.7;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges or
deposits required in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation;
(f) Liens on the property of the Company or any Subsidiary securing (i)
the non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) contingent obligations on surety and
appeal bonds, and (iii) other non-delinquent obligations of a like nature; in
each case (other than (ii) above), incurred in the ordinary course of business,
provided all such Liens in the aggregate would not (even if enforced) cause a
Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, provided
that such Liens have been in existence less than 30 days or the enforcement of
such Liens is effectively stayed and all such liens in the aggregate at any time
outstanding for the Company and its Subsidiaries to the extent not covered by
insurance do not exceed $500,000;
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(h) purchase money security interests on any property acquired or held by
the Company or its Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property; provided, that (i) any such Lien attaches
to such property concurrently with or within 90 days after the acquisition
thereof, (ii) such Lien attaches solely to the property so acquired in such
transaction, (iii) the principal amount of the debt secured thereby does not
exceed 100% of the cost of such property, and (iv) the principal amount of the
Indebtedness secured by any and all such purchase money security interests shall
not at any time exceed, together with Indebtedness permitted under subsection
8.5(d), $2,500,000;
(i) Liens securing obligations in respect of Capital Leases on assets
subject to such leases, provided that such Capital Leases are otherwise
permitted hereunder;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided, that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution; and
(k) Liens consisting of pledges of cash collateral or government
securities to secure on a xxxx-to-market basis Permitted Swap Obligations only,
provided that (i) the counterparty to any Swap Contract relating to such
Permitted Swap Obligation is under a similar requirement to deliver similar
collateral from time to time to the Company or the Subsidiary party thereto on a
xxxx-to-market basis; and (ii) the aggregate value of such collateral so pledged
by the Company and the Subsidiaries together in favor of any counterparty does
not at any time exceed $500,000.
8.2 Disposition of Assets. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
any property (including accounts and notes receivable, with or without recourse)
or enter into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus equipment, all
in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is exchanged
for credit against the purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to the purchase price of
such replacement equipment;
(c) dispositions of property by the Company or a Domestic Wholly-Owned
Subsidiary to a Domestic Wholly-Owned Subsidiary that is a Guarantor or by a
Subsidiary to the Company or a Domestic Wholly-Owned Subsidiary that is a
Guarantor; and
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(d) dispositions of property in connection with transactions permitted by
Section 8.3;
(e) other dispositions (but in any event not involving the sale or
transfer of domestic accounts receivable) which are made for fair market value;
provided, that (i) at the time of any disposition, no Event of Default shall
exist or shall result from such disposition, (ii) the aggregate sales price from
such disposition shall be paid in cash, and (iii) the aggregate value of all
assets so sold by the Company and its Subsidiaries, together, shall not exceed
in any fiscal year $1,000,000.
8.3 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Subsidiary to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided that the Company
shall be the continuing or surviving corporation, or with any one or more other
Subsidiaries, provided that if any transaction shall be between a Subsidiary and
a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing
or surviving corporation and is a Guarantor; and
(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to the Company or another Wholly-Owned
Subsidiary that is a Guarantor.
8.4 Loans and Investments. The Company shall not purchase or acquire, or
suffer or permit any Subsidiary to purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person, or make or commit to make any
Acquisitions, or make or commit to make any advance, loan, extension of credit
(including Contingent Obligations) or capital contribution to or any other
investment in, any Person including any Affiliate of the Company (together,
"Investments"), except for:
(a) Investments held by the Company or Subsidiary in the form of cash
equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business;
(c) extensions of credit in the ordinary course of business by the Company
to any Domestic Subsidiary that is a Guarantor or by any Domestic Subsidiary
that is a Guarantor to the Company or to another Domestic Subsidiary that is a
Guarantor;
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(d) Ordinary Course Investments;
(e) Investments constituting Permitted Swap Obligations or payments or
advances under Swap Contracts relating to Permitted Swap Obligations; and
(f) Investments made prior to the date hereof by the Company in any of its
Subsidiaries, or by any such Subsidiary in the Company or any of its other
Subsidiaries.
8.5 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other Loan
Documents;
(b) Indebtedness consisting of Contingent Obligations permitted pursuant
to Section 8.8;
(c) Indebtedness existing on the Closing Date and set forth in Schedule
8.5;
(d) Indebtedness of any Subsidiaries and other Indebtedness secured by
Liens permitted by subsection 8.1(h) and (i); provided, that the aggregate
amount of all such Indebtedness shall not exceed at any time $2,500,000;
(e) Indebtedness of the Company's Subsidiaries constituting Investments
permitted pursuant to subsection 8.4(c);
(f) other Indebtedness not otherwise permitted by this Section 8.5,
provided that the aggregate of all such other Indebtedness shall not exceed
$2,500,000; and
(g) refinancing of Indebtedness permitted under clause (c) above so long
as the Indebtedness shall not be increased and the terms thereof shall be not
materially less favorable to the Company and its Subsidiaries;
8.6 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary.
8.7 Use of Proceeds. The Company shall not, and shall not suffer or permit
any Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) in violation of Regulations T, U or X of the FRB, or
(ii) to acquire any security of any Person other than the Company in any
transaction that is subject to Section 13 or 14 of the Exchange Act.
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8.8 Contingent Obligations. The Company shall not, and shall not suffer or
permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) Contingent Obligations incurred pursuant to this Agreement;
(b) endorsements for collection or deposit in the ordinary course of
business;
(c) Permitted Swap Obligations;
(d) Contingent Obligations of the Company and its Subsidiaries existing as
of the Closing Date and listed in Schedule 8.8;
(e) Contingent Obligations with respect to Surety Instruments incurred in
the ordinary course of business and not exceeding at any time $100,000 in the
aggregate in respect of the Company and its Subsidiaries together; and
(f) Contingent Obligations with respect to Indebtedness permitted by
subsections 8.5(d).
8.9 Joint Ventures. The Company shall not, and shall not suffer or permit
any Subsidiary to enter into any Joint Venture.
8.10 Lease Obligations. The Company shall not, and shall not suffer or
permit any Subsidiary to, create or suffer to exist any obligations for the
payment of rent for any property under lease or agreement to lease, except for:
(a) leases of the Company and of Subsidiaries in existence on the Closing
Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any Subsidiary after
the Closing Date in the ordinary course of business; provided, that the
aggregate amount of rental obligations accruing during any fiscal year under all
such operating leases shall not exceed at any time $3,800,000; and
(c) Capital Leases (other than those permitted under clauses (a) of this
Section), comprising Indebtedness permitted under Section 8.5.
8.11 Restricted Payments. The Company shall not declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock, or purchase, redeem or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding; except that the Company may declare and make dividend
payments or other distributions payable solely in its common stock.
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8.12 ERISA. The Company shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the Company in an
aggregate amount in excess of $500,000; or (b) engage in a transaction that
could reasonably be subject to Section 4069 or 4212(c) of ERISA.
8.13 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
8.14 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
8.15 Clean-up/Clean Down Provisions. Notwithstanding any other provision
contained in this Agreement to the contrary, the Company agrees that from March
31 of each Fiscal Year during the term of this Agreement, commencing March 31,
2001, and for a period of sixty (60) consecutive days thereafter the Effective
Amount of all Revolving Loans shall be zero (0) and the Effective Amount of the
outstanding Letters of Credit shall be less than or equal to $10,000,000. The
Company agrees to make any prepayment of the Revolving Loans or the L/C
Obligations which may be necessary to comply with the terms of this Section
8.15.
8.16 Subordinated Debt. The Company shall not, and shall not permit any
Subsidiary, to prepay any Subordinated Debt.
ARTICLE IX
FINANCIAL COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in writing:
9.1 Minimum Net Worth. The Company shall not permit at any time its
Consolidated Net Worth to be less than $130,000,000.
9.2 Minimum Liquidity. The Company shall not permit its Liquidity to be
less than (i) $5,000,000 through December 31, 2000, or (ii) $10,000,000
thereafter. For purposes
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hereof, "Liquidity" means the sum of (i) the aggregate unused Commitments under
this Agreement plus (ii) the aggregate of all nonrestricted and unencumbered
cash and cash equivalents of the Company and its Subsidiaries
9.3 Quick Ratio. As of the end of any month set forth below, the Company
will not permit its Quick Ratio to be less than the ratio applicable thereto as
follows:
Month Ending Ratio
------------ -----
September 30, 2000 1.50
October 31, 2000 1.50
November 30, 2000 2.50
December 31, 2000 and thereafter 10.00
For purposes hereof, "Quick Ratio" means the ratio of (i) the aggregate accounts
receivable of the Company and its subsidiaries net of reserves for doubtful
accounts consistent with the historical levels and past practices (ii) the
aggregate Effective Amount of Revolving Loans and L/C Obligations under this
Agreement.
9.4 Capital Expenditures. The Company shall not permit Consolidated
Capital Expenditures to exceed $18,000,000 for any fiscal year.
ARTICLE X
EVENTS OF DEFAULT
10.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to pay, (i) when and as required to be
paid herein, any amount of principal of any Loan, (ii) within one Business Day
after the same becomes due, any L/C Obligation, or (iii) within 5 Business Days
after the same becomes due, any interest, fee or any other amount payable
hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
Company or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Company, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 7.1, 7.2, 7.3, 7.9, 7.13 or
7.15 or in Articles VIII or IX; or
(d) Other Defaults. The Company or any Subsidiary party thereto fails to
perform or observe any other term or covenant contained in this Agreement or any
other Loan Document,
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and such default shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible Officer knew or reasonably
should have known of such failure or (ii) the date upon which written notice
thereof is given to the Company by the Agent or any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any
payment in respect of any Indebtedness or Contingent Obligation (other than in
respect of Swap Contracts), when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure; or (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect thereof to
be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any Subsidiary (i)
ceases or fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Company or any Subsidiary, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of the Company's or any Subsidiary's properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or levy; (ii) the Company
or any Subsidiary admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company or
any Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $500,000; the
aggregate amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $500,000; or (iii) the Company or any ERISA Affiliate shall fail to
pay when due, after the expiration of any applicable grace period, any
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installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$500,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $500,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30 days after
the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree is
entered against the Company or any Subsidiary which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control; or
(l) Guarantor Defaults. Any Guarantor fails in any material respect to
perform or observe any term, covenant or agreement in the Guaranty; or the
Guaranty is for any reason partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise ceases to be in full force and
effect, or any Guarantor or any other Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at subsections (f) or (g) of this
Section occurs with respect to any Guarantor; or
10.2 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Required Banks,
(a) declare the commitment of each Bank to make Loans and any obligation
of the Issuing Bank to Issue Letters of Credit to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is or at
any time thereafter may become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and payable, and
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
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provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 10.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of the Issuing Bank to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent, the Issuing Bank or any Bank.
10.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
10.4 Certain Financial Covenant Defaults. In the event that, after taking
into account any extraordinary charge to earnings taken or to be taken as of the
end of any fiscal period of the Company (a "Charge"), and if solely by virtue of
such Charge, there would exist an Event of Default due to the breach of any
provision of Article IX as of such fiscal period end date, such Event of Default
shall be deemed to arise upon the earlier of (a) the date after such fiscal
period end date on which the Company announces publicly it will take, is taking
or has taken such Charge (including an announcement in the form of a statement
in a report filed with the SEC) or, if such announcement is made prior to such
fiscal period end date, the date that is such fiscal period end date, and (b)
the date the Company delivers to the Agent its audited annual or unaudited
quarterly financial statements in respect of such fiscal period reflecting such
Charge as taken.
ARTICLE XI
THE AGENT
11.1 Appointment and Authorization; "Agent".
(a) Each Bank hereby irrevocably (subject to Section 11.9) appoints,
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the generality
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of the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Bank shall act on behalf of the Banks with respect to any
Letters of Credit Issued by it and the documents associated therewith until such
time and except for so long as the Agent may agree at the request of the
Required Banks to act for such Issuing Bank with respect thereto; provided,
however, that the Issuing Bank shall have all of the benefits and immunities (i)
provided to the Agent in this Article XI with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent", as used in this Article XI, included the Issuing Bank with respect
to such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuing Bank.
11.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
11.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
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11.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation reasonably believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions specified
in Section 5.1, each Bank that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank.
11.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Required Banks in accordance with Article
IX; provided, however, that unless and until the Agent has received any such
request, the 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 or in the best interest of the Banks.
11.6 Credit Decision. Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the
Agent hereinafter taken, including any review of the affairs of the Company and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Bank. Each Bank represents to the Agent that
it has, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement
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and to extend credit to the Company hereunder. Each Bank also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the Agent, the Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which may come
into the possession of any of the Agent-Related Persons.
11.7 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), Pro Rata, from and against any
and all Indemnified Liabilities; provided, however, that no Bank shall be liable
for the payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
11.8 Agent in Individual Capacity. Bank of America and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though Bank of America were not the Agent or the
Issuing Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not the Agent or the
Issuing Bank.
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11.9 Successor Agent. The Agent may, and at the request of the Required
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Required Banks shall appoint from among the
Banks a successor agent for the Banks (which successor agent shall be subject to
the approval of the Company if no Default or Event of Default then exists,
provided that such approval shall not be unreasonably withheld or delayed). If
no successor agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article XI and Sections 12.4 and 12.5
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Agent hereunder until such time, if any, as the Required Banks appoint a
successor agent as provided for above. Notwithstanding the foregoing, however,
Bank of America may not be removed as the Agent at the request of the Banks
unless Bank of America shall also simultaneously be replaced as "Issuing Bank"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
11.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or trust" within the
meaning of the Code and such Bank claims exemption from, or a reduction of, U.S.
withholding tax under Sections 1441 or 1442 of the Code, such Bank agrees with
and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
and executed copies of IRS Form 1001 before the payment of any interest in
the first calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Bank, two properly
completed and executed copies of IRS Form 4224 before the payment of any
interest is due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may be paid
under this Agreement; and
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(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form 1001 and such Bank sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to notify the Agent of
the percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Bank. To the extent of such percentage
amount, the Agent will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States withholding tax by
filing IRS Form 4224 with the Agent sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the Company to such
Bank, such Bank agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable withholding
tax, the Agent may withhold from any interest payment to such Bank an amount
equivalent to the applicable withholding tax after taking into account such
reduction. However, if the forms or other documentation required by subsection
(a) of this Section are not delivered to the Agent, then the Agent may withhold
from any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any Bank (because the appropriate
form was not delivered or was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Bank shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Banks under this subsection shall survive
the payment of all Obligations and the resignation or replacement of the Agent.
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ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Banks
(or by the Agent at the written request of the Required Banks) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following:
(i) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 10.2);
(ii) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Banks (or any of them) hereunder or under any other Loan
Document;
(iii) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (iii) below) any fees or other
amounts payable hereunder or under any other Loan Document;
(iv) change the Pro Rata percentage of the aggregate unpaid principal
amount of the Loans which is required for the Banks or any of them to take
any action hereunder;
(v) amend this Section, or Section 2.14, or any provision herein
providing for consent or other action by all Banks; or
(vi) release any Guarantor from its obligations under the Guaranties
unless in accordance with this Agreement such Guarantor is no longer a
Subsidiary in which event the Agent shall execute and deliver a release of
the respective Guaranty in form reasonably acceptable to the Company;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Required Banks or all
the Banks, as the case may be, affect the rights or duties of the Issuing Bank
under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it, and (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Required
Banks or all the Banks, as the case may be, affect the rights or duties of the
Agent under this Agreement or any other Loan Document.
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12.2 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing and mailed, faxed or delivered (including,
unless the context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on Schedule 12.2, and (ii) shall be followed promptly by delivery of a
hard copy original thereof) to the address or facsimile number specified for
notices on Schedule 12.2; or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Agent.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except that notices pursuant
to Article II, III or X to the Agent shall not be effective until actually
received by the Agent, and notices pursuant to Article III to the Issuing Bank
shall not be effective until actually received by the Issuing Bank at the
address specified for the "Issuing Bank" on the applicable signature page
hereof.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any liability to the
Company or other Person on account of any action taken or not taken by the Agent
or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by the Agent and the Banks
to receive written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is at variance with
the terms understood by the Agent and the Banks to be contained in the
telephonic or facsimile notice.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
12.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse Bank of America (including in its capacity as Agent and Issuing
Bank) within five Business Days after demand (subject to subsection 5.1(e)) for
all reasonably costs and expenses incurred by Bank of America (including in its
capacity as Agent and Issuing Bank) in connection with the development,
preparation, delivery, administration and execution of, and any
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amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs incurred by
Bank of America (including in its capacity as Agent and Issuing Bank) with
respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank within five
Business Days after demand (subject to subsection 5.1(e)) for all reasonably
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
12.5 Company Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the
Agent-Related Persons, and each Bank and each of its respective officers,
directors, employees, and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including reasonable Attorney Costs) of any kind or nature whatsoever which may
at any time (including at any time following repayment of the Loans, the
termination of the Letters of Credit and the termination, resignation or
replacement of the Agent or replacement of any Bank) be imposed on, incurred by
or asserted against any such Person in any way relating to or arising out of
this Agreement or any Loan Document, or the transactions contemplated hereby, or
any action taken or omitted by any such Person under or in connection with any
of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or Letters of Credit or the use
of the proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities to the extent resulting solely
from the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other Obligations.
12.6 Payments Set Aside. To the extent that the Company makes a payment to
the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such
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payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Agent upon demand its Pro Rata Share of any
amount so recovered from or repaid by the Agent.
12.7 Successors and Assigns. Subject to Section 12.8, the provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Company may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each Bank.
12.8 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company at all times
other than during the existence of an Event of Default and the Agent and the
Issuing Bank, which consent of the Company shall not be unreasonably withheld,
at any time assign and delegate to one or more Eligible Assignees (provided that
no written consent of the Company, the Agent or the Issuing Bank shall be
required in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank) (each an "Assignee") all,
or any ratable part of all, of the Loans, the Commitments, the L/C Obligations
and the other rights and obligations of such Bank hereunder, in a minimum amount
of $5,000,000; provided, however, that the Company and the Agent may continue to
deal solely and directly with such Bank in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Agent by such Bank and
the Assignee; (ii) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance in the form of Exhibit E
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment; (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $4,000 and (iv) the Agent and, if applicable,
the Company shall have consented thereto.
(b) From and after the date that the Agent notifies the assignor Bank that
it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it and assumed by the Assignees pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Loan
Documents.
(c) Within five Business Days after its receipt of notice by the Agent that
it has received an executed Assignment and Acceptance and payment of the
processing fee, (and provided that it consents to such assignment in accordance
with subsection 12.8(a)), the Company shall execute
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and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans
and Commitment and, if the assignor Bank has retained a portion of its Loans and
its Commitment, replacement Notes in the principal amount of the Revolving Loans
retained by the assignor Bank (such Notes to be in exchange for, but not in
payment of, the Notes held by such Bank). Following receipt by the Agent of all
consents to such assignment required hereby and of the Agent's processing fee
payment under the Assignment and Acceptance, this Agreement shall be deemed to
be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks or other
Persons not Affiliates of the Company (a "Participant") participating interests
in any Loans, the Commitment of that Bank and the other interests of that Bank
(the "originating Bank") hereunder and under the other Loan Documents; provided,
however, that (i) the originating Bank's obligations under this Agreement shall
remain unchanged, (ii) the originating Bank shall remain solely responsible for
the performance of such obligations, (iii) the Company, the Issuing Bank and the
Agent shall continue to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Banks as described in the first proviso
to Section 12.1. In the case of any such participation, the Participant shall be
entitled to the benefit of Sections 4.1, 4.3 and 12.5 as though it were also a
Bank hereunder, and if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank may at
any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement and the Note held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.
12.9 Confidentiality. Each Bank agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Company and provided to it by the Company or any Subsidiary, or by the Agent
on the Company's or such
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Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank, or (ii) was or becomes available on a
non-confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company known to the
Bank; provided, however, that any Bank may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination of such Bank by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Bank's independent auditors and other professional advisors, provided
that such Person agrees in writing to keep such information confidential to the
same extent required of the Banks hereunder; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Banks hereunder; (H)
as to any Bank or its Affiliate, as expressly permitted under the terms of any
other document or agreement regarding confidentiality to which the Company or
any Subsidiary is party or is deemed party with such Bank or such Affiliate; and
(I) to its Affiliates.
12.10 Set-off. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank is authorized at any time and from time to time, without prior notice to
the Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Company against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Company and the Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
12.11 Automatic Debits of Fees. With respect to any fee, or any other cost
or expense (including Attorney Costs) due and payable to the Agent, the Issuing
Bank, the Arranger, Bank of America under the Loan Documents, the Company hereby
irrevocably authorizes Bank of America to debit the deposit account of the
Company with Bank of
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America, number 8666302112, in an amount such that the aggregate amount debited
from all such deposit accounts does not exceed such fee or other cost or
expense. If there are insufficient funds in such deposit accounts to cover the
amount of the fee or other cost or expense then due, such debits will be
reversed (in whole or in part, in Bank of America's sole discretion) and such
amount not debited shall be deemed to be unpaid. No such debit under this
Section shall be deemed a set-off.
12.12 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
12.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
12.14 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
12.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Banks, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
12.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR
OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE
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BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
12.17 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.18 Entire Agreement. This Agreement, together with the other Loan
Documents, including the side letter agreement concerning syndication after the
Closing Date dated as of the date hereof (the "Syndication Letter"), embodies
the entire agreement and understanding among the Company, the Banks and the
Agent, and supersedes all prior agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
MIDWAY GAMES INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
Title: Executive Vice President - Finance, Treasurer and Chief Financial Officer
BANK OF AMERICA N.A.,
as Agent
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA N.A., as
Issuing Bank
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA N.A., as a Bank
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President
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LIST OF SCHEDULES
-----------------
Schedule I Commitments
Schedule 3.3 Existing Bank of America Letters of Credit
Schedule 5.1 Guarantors
Schedule 6.5 Litigation
Schedule 6.7 ERISA
Schedule 6.12 Environmental Matters
Schedule 6.15 Subsidiaries and Minority Interests
Schedule 6.16 Insurance Matters
Schedule 8.1 Permitted Liens
Schedule 8.5 Permitted Indebtedness
Schedule 8.8 Contingent Obligations
Schedule 12.2 Lending Offices; Addresses for Notices
LIST OF EXHIBITS
----------------
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Promissory Note
Exhibit G Form of Guaranty
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