EXECUTION COPY
3-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 5, 2001
AMONG
XXXXXXXX'X INTERNATIONAL, INC.
as the Borrower
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent
and
BANK OF AMERICA, N.A. and FLEET NATIONAL BANK,
as Documentation Agents
and
SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agents
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BANC ONE CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Sole Book Runner
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SIDLEY XXXXXX XXXXX & XXXX
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................1
1.1. Certain Defined Terms.......................................................................1
1.2. References.................................................................................18
ARTICLE II THE CREDITS..........................................................................................19
2.1. Commitment.................................................................................19
2.2. Swing Line Loans...........................................................................19
2.2.1. Amount of Swing Line Loans........................................................19
2.2.2. Borrowing Notice..................................................................19
2.2.3. Making of Swing Line Loans........................................................20
2.2.4. Repayment of Swing Line Loans.....................................................20
2.3. Required Payments; Termination.............................................................21
2.3.1. Required Payments.................................................................21
2.3.2. Termination.......................................................................21
2.4. Ratable Loans..............................................................................21
2.5. Types of Advances..........................................................................21
2.6. Commitment Fee; Reductions in Aggregate Commitment; Increases in Aggregate Commitment......21
2.6.1. Commitment Fee....................................................................21
2.6.2. Reductions in Aggregate Commitment................................................21
2.6.3. Increase of Aggregate Commitment..................................................22
2.7. Minimum Amount of Each Advance.............................................................24
2.8. Optional Principal Payments................................................................24
2.9. Method of Selecting Types and Interest Periods for New Advances; Method of Borrowing.......25
2.9.1. Method of Selecting Types and Interest Periods for New Advances...................25
2.9.2. Method of Borrowing...............................................................25
2.10. Conversion and Continuation of Outstanding Advances........................................25
2.11. Changes in Interest Rate, etc..............................................................26
2.12. Rates Applicable After Default.............................................................26
2.13. Method of Payment..........................................................................27
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2.14. Noteless Agreement; Evidence of Indebtedness...............................................27
2.15. Telephonic Notices.........................................................................28
2.16. Interest Payment Dates; Interest and Fee Basis.............................................28
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions............29
2.18. Lending Installations......................................................................29
2.19. Non-Receipt of Funds by the Administrative Agent...........................................29
2.20. Replacement of Lender......................................................................30
2.21. Facility LCs...............................................................................30
2.21.1. Issuance; Transitional Facility LCs...............................................30
2.21.2. Participations....................................................................31
2.21.3. Notice............................................................................31
2.21.4. LC Fees...........................................................................32
2.21.5. Administration; Reimbursement by Lenders..........................................32
2.21.6. Reimbursement by Borrower.........................................................33
2.21.7. Obligations Absolute..............................................................33
2.21.8. Actions of LC Issuers.............................................................34
2.21.9. Indemnification...................................................................34
2.21.10. Lenders' Indemnification..........................................................35
2.21.11. Facility LC Collateral Account....................................................35
2.21.12. Rights as a Lender................................................................35
ARTICLE III YIELD PROTECTION; TAXES.............................................................................35
3.1. Yield Protection...........................................................................35
3.2. Changes in Capital Adequacy Regulations....................................................36
3.3. Availability of Types of Advances..........................................................37
3.4. Funding Indemnification....................................................................37
3.5. Taxes......................................................................................37
3.6. Lender Statements; Survival of Indemnity...................................................39
ARTICLE IV CONDITIONS PRECEDENT.................................................................................40
4.1. Initial Credit Extension...................................................................40
4.2. Each Credit Extension......................................................................41
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................................42
5.1. Existence and Standing.....................................................................42
ii
5.2. Authorization and Validity.................................................................42
5.3. No Conflict; Government Consent............................................................42
5.4. Financial Statements.......................................................................43
5.5. Material Adverse Change....................................................................43
5.6. Taxes......................................................................................43
5.7. Litigation and Contingent Obligations......................................................44
5.8. Subsidiaries...............................................................................44
5.9. Accuracy of Information....................................................................44
5.10. Regulation U...............................................................................44
5.11. Material Agreements........................................................................44
5.12. Compliance With Laws.......................................................................45
5.13. Ownership of Properties....................................................................45
5.14. ERISA; Foreign Pension Matters.............................................................45
5.15. Plan Assets; Prohibited Transactions.......................................................45
5.16. Environmental Matters......................................................................45
5.17. Investment Company Act.....................................................................46
5.18. Public Utility Holding Company Act.........................................................46
5.19. Insurance..................................................................................46
ARTICLE VI COVENANTS............................................................................................46
6.1. Financial Reporting........................................................................46
6.2. Use of Proceeds............................................................................48
6.3. Notice of Default..........................................................................48
6.4. Conduct of Business........................................................................48
6.5. Taxes......................................................................................49
6.6. Insurance..................................................................................49
6.7. Compliance with Laws.......................................................................49
6.8. Maintenance of Properties..................................................................49
6.9. Inspection; Keeping of Books and Records...................................................49
6.10. Addition of Guarantors.....................................................................49
6.11. Dividends and Distributions................................................................50
6.12. Capital Expenditures.......................................................................50
6.13. Merger.....................................................................................50
6.14. Sale of Assets.............................................................................50
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6.15. Investments and Acquisitions...............................................................51
6.16. Liens......................................................................................53
6.17. Transactions with Affiliates...............................................................54
6.18. Financial Contracts........................................................................54
6.19. ERISA......................................................................................54
6.20. Environmental Compliance...................................................................55
6.21. Financial Covenants........................................................................55
6.21.1. Maximum Leverage Ratio............................................................55
6.21.2. Minimum Fixed Charge Coverage Ratio...............................................55
6.21.3. Maximum Ratio of Indebtedness to Total Capitalization.............................55
ARTICLE VII DEFAULTS............................................................................................55
7.1. Breach of Representations or Warranties....................................................55
7.2. Failure to Make Payments When Due..........................................................55
7.3. Breach of Covenants........................................................................56
7.4. Other Breaches.............................................................................56
7.5. Default as to Other Indebtedness...........................................................57
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc.........................................57
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc.......................................57
7.8. Custody or Control of Property.............................................................57
7.9. Judgments..................................................................................58
7.10. Unfunded Liabilities.......................................................................58
7.11. Other ERISA Liabilities....................................................................58
7.12. Environmental Matters......................................................................58
7.13. Change in Control..........................................................................58
7.14. The Guaranty...............................................................................58
7.15. The Loan Documents.........................................................................59
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.....................................................59
8.1. Acceleration...............................................................................59
8.2. Amendments.................................................................................60
8.3. Preservation of Rights.....................................................................61
ARTICLE IX GENERAL PROVISIONS...................................................................................61
9.1. Survival of Representations................................................................61
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9.2. Governmental Regulation....................................................................61
9.3. Headings...................................................................................62
9.4. Entire Agreement...........................................................................62
9.5. Several Obligations; Benefits of this Agreement............................................62
9.6. Expenses; Indemnification..................................................................62
9.7. Numbers of Documents.......................................................................63
9.8. Accounting.................................................................................63
9.9. Severability of Provisions.................................................................63
9.10. Nonliability of Lenders....................................................................64
9.11. Confidentiality............................................................................64
9.12. Lenders Not Utilizing Plan Assets..........................................................64
9.13. Nonreliance................................................................................64
9.14. Disclosure.................................................................................65
9.15. Subordination of Intercompany Indebtedness.................................................65
ARTICLE X THE AGENTS............................................................................................66
10.1. Appointment; Nature of Relationship........................................................66
10.2. Powers.....................................................................................66
10.3. General Immunity...........................................................................67
10.4. No Responsibility for Loans, Recitals, etc.................................................67
10.5. Action on Instructions of Lenders..........................................................67
10.6. Employment of Agents and Counsel...........................................................67
10.7. Reliance on Documents; Counsel.............................................................68
10.8. Agents' Reimbursement and Indemnification..................................................68
10.9. Notice of Default..........................................................................68
10.10. Rights as a Lender.........................................................................69
10.11. Lender Credit Decision.....................................................................69
10.12. Successor Agents...........................................................................69
10.13. Agent and Arranger Fees....................................................................70
10.14. Delegation to Affiliates...................................................................70
10.15. Release of Guarantors......................................................................70
ARTICLE XI SETOFF; RATABLE PAYMENTS.............................................................................70
11.1. Setoff.....................................................................................70
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11.2. Ratable Payments...........................................................................71
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................71
12.1. Successors and Assigns; Designated Lenders.................................................71
12.1.1. Successors and Assigns............................................................71
12.1.2. Designated Lenders................................................................72
12.2. Participations.............................................................................73
12.2.1. Permitted Participants; Effect....................................................73
12.2.2. Voting Rights.....................................................................73
12.2.3. Benefit of Certain Provisions.....................................................74
12.3. Assignments................................................................................74
12.3.1. Permitted Assignments.............................................................74
12.3.2. Effect; Effective Date............................................................74
12.3.3. The Register......................................................................75
12.4. Dissemination of Information...............................................................75
12.5. Tax Treatment..............................................................................76
ARTICLE XIII NOTICES............................................................................................76
13.1. Notices....................................................................................76
13.2. Change of Address..........................................................................76
ARTICLE XIV COUNTERPARTS........................................................................................76
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................................77
15.1. CHOICE OF LAW..............................................................................77
15.2. CONSENT TO JURISDICTION....................................................................77
15.3. WAIVER OF JURY TRIAL.......................................................................77
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EXHIBITS
Exhibit A-1....... - Form of Borrower's and Guarantors' Counsel's Opinion
Exhibit A-2....... Form of Administrative Agent's Counsel's Opinion
Exhibit B......... - Form of Compliance Certificate
Exhibit C......... - Form of Assignment Agreement
Exhibit D......... - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E......... - Form of Promissory Note (if requested)
Exhibit F......... - List of Closing Documents
Exhibit G......... - Form of Designation Agreement
Exhibit H......... - Form of Guaranty
Exhibit I......... - Form of Commitment and Acceptance
SCHEDULES
Pricing Schedule
Commitment Schedule
Schedule 2.21..... - Existing Letters of Credit
Schedule 5.8...... - Subsidiaries
Schedule 5.16..... - Environmental Matters
Schedule 6.15..... - Existing Investments
Schedule 6.16..... - Existing Liens
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3-YEAR REVOLVING CREDIT AGREEMENT
This 3-Year Revolving Credit Agreement, dated as of November 5, 2001, is
among XXXXXXXX'X INTERNATIONAL, INC., the institutions from time to time parties
hereto as Lenders (whether by execution of this Agreement or an assignment
pursuant to Section 12.3), BANK ONE, NA, a national banking association having
its principal office in Chicago, Illinois, as Swing Line Lender, LC Issuer and
Administrative Agent, SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION, as
Syndication Agents, and BANK OF AMERICA, N.A. and FLEET NATIONAL BANK, as
Documentation Agents. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person, or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
ownership interests of a partnership or limited liability company.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of several Loans (i) made by some or all of the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date
of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period. The term "Advance" shall include Swing Line
Loans unless otherwise expressly provided.
"Affected Lender" is defined in Section 2.20.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of ten percent (10%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of voting
securities, by contract or otherwise. Notwithstanding the previous sentence, any
institutional investors who purchase their interest in the Borrower in a public
market shall not be considered Affiliates of the Borrower.
1
"Agent" means any of the Administrative Agent, the Syndication Agents
and the Documentation Agents, as appropriate, and "Agents" means, collectively,
the Administrative Agent, the Syndication Agents and the Documentation Agents.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as may be adjusted from time to time pursuant to the terms hereof.
The initial Aggregate Commitment is $150,000,000.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this 3-Year Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified and as in effect from time
to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of financial ratios and other
financial tests required by this Agreement, "Agreement Accounting Principles"
means generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that used
in preparing the financial statements of the Borrower referred to in Section 5.4
hereof.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of (a)
the Federal Funds Effective Rate for such day and (b) one-half of one percent
(0.5%) per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
2
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the chief executive officer, chief
financial officer, chief accounting officer or treasurer of the Borrower, acting
singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Xxxxxxxx'x International, Inc., a Delaware
corporation, and its permitted successors and assigns (including, without
limitation, a debtor-in-possession on its behalf).
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.1.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks are not authorized or required to close in Chicago, Illinois or New
York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks are not authorized or required to close in Chicago, Illinois or New
York City for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Buying Lender" is defined in Section 2.6.3(ii).
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Account Principles, excluding
(i) Permitted Acquisitions, (ii) expenditures of insurance proceeds to rebuild
or replace any asset after a casualty loss and (iii) leasehold improvement
expenditures for which the Borrower or a Subsidiary is reimbursed promptly by
the lessor.
3
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalent Investments" means, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any investment grade commercial bank having, or which is the
principal banking subsidiary of an investment grade bank holding company
organized under the laws of the United States, any State thereof, the District
of Columbia or any foreign jurisdiction having capital, surplus and undivided
profits aggregating in excess of $500,000,000, with maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than ninety (90) days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, provided that such
repurchase obligations are secured by a first priority security interest in such
underlying securities which have, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 by S&P or P-1 by Xxxxx'x and in each case maturing not more than 270
days after the date of acquisition by such Person, (v) investments in money
market funds substantially all of the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above, and (vi)
demand deposit accounts maintained in the ordinary course of business.
"Change" is defined in Section 3.2.
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of thirty-three percent (33%) or
more of the outstanding shares of voting stock of the Borrower; or (ii) the
majority of the Board of Directors of the Borrower fails to consist of
Continuing Directors; or (iii) except as expressly permitted under the terms of
this Agreement, the Borrower consolidates with or merges into another Person or
conveys, transfers or leases all or substantially all of its property to any
Person, or any Person consolidates with or merges into the Borrower, in either
event pursuant to a transaction in which the outstanding Capital Stock of the
Borrower is reclassified or changed into or exchanged for cash, securities or
other property.
4
"Closing Date" means November 5, 2001.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral Shortfall Amount" is defined in Section 8.1(i).
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans to, and participate in Swing Line Loans and in Facility LCs
issued upon the application of, the Borrower in an aggregate amount not
exceeding the amount set forth on the Commitment Schedule or in an Assignment
Agreement executed pursuant to Section 12.3 or in a Commitment and Acceptance
executed pursuant to Section 2.6.3, as it may be modified as a result of any
assignment that has become effective pursuant to Section 12.3.2 or as otherwise
modified from time to time pursuant to the terms hereof.
"Commitment and Acceptance" is identified in Section 2.6.3.
"Commitment Fee" is defined in Section 2.6.1.
"Commitment Increase Notice" is defined in Section 2.6.3(i) hereof.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Closing Date attached hereto and identified as such.
"Consolidated Funded Indebtedness" means at any time the Funded
Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, for any period, the total gross
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, whether paid or accrued, including, without
duplication, the interest component of Capitalized Leases, commitment and letter
of credit fees, the discount or implied interest component of Off-Balance Sheet
Liabilities, capitalized interest expense, pay-in-kind interest expense,
amortization of debt documents and net payments (if any) pursuant to Financial
Contracts relating to interest rate protection (other than any such payments
pursuant to Financial Contracts in effect prior to the date hereof which are
being terminated substantially concurrently with the execution and delivery
hereof).
5
"Consolidated Net Income" means, with reference to any period, the net
after-tax income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, excluding the net after-tax income (or loss)
allocated to minority interests in accordance with Agreement Accounting
Principles.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Rentals" means, for any period, the Rentals of the
Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
"Consolidated Total Assets" means at any time the total assets of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Indebtedness plus Consolidated Net Worth, each calculated as of
such time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter (the obligations
in respect of which shall be measured based on actual amounts owing on any given
measurement date), operating agreement, take-or-pay contract or the obligations
of any such Person as general partner of a partnership with respect to the
liabilities of the partnership.
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
6
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender,
each Eligible Designee designated by such Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Documentation Agent" means each of Bank of America, N.A. and Fleet
National Bank, in each case in its capacity as the documentation agent for the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
and any successor Documentation Agent appointed pursuant to Article X.
"Domestic Subsidiary" means a Subsidiary of the Borrower organized
under the laws of a jurisdiction located in the United States of America.
"EBITDA" means, for any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii)
depreciation, (iv) amortization, (v) extraordinary losses incurred other than in
the ordinary course of business, and (vi) other non-cash losses (except any
non-cash losses that require accrual of a reserve for anticipated future cash
payments for any period other than accrual for future obligations made pursuant
to SFAS Xx. 00, Xx. 000 or No. 116, as amended) deducted in calculating net
income (or net loss) (including, without limitation, loss on the disposition of
assets), minus, to the extent included in Consolidated Net Income, (x)
extraordinary gains realized other than in the ordinary course of business, (y)
the income of any joint venture, except to the extent of cash dividends or
distributions actually paid by such joint venture to the Borrower or any of its
Subsidiaries and (z) other non-cash gains (including, without limitation, gain
on the disposition of assets), in each case of the Borrower and its
Subsidiaries, determined in accordance with Agreement Accounting Principles for
such period.
"EBITR" means, for any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii)
Consolidated Rentals, (iv) extraordinary losses incurred other than in the
ordinary course of business, and (v) other non-cash losses (except any non-cash
losses that require accrual of a reserve for anticipated future cash payments
for any period other than accrual for future obligations made pursuant to SFAS
Xx. 00, Xx. 000 or No. 116, as amended) deducted in calculating net income (or
net loss) (including, without limitation, loss on the disposition of assets),
minus, to the extent included in Consolidated Net Income, (x) extraordinary
gains realized other than in the ordinary course of business, (y) the income of
any joint venture, except to the extent of cash dividends or distributions
actually paid by such joint venture to the Borrower or any of its Subsidiaries
and (z) other non-cash gains (including, without limitation, gain on the
disposition of assets), in each case of the Borrower and its Subsidiaries,
determined in accordance with Agreement Accounting Principles for such period.
7
"Effective Commitment Amount" is defined in Section 2.6.3(i) hereof.
"Eligible Designee" means a special purpose corporation, partnership,
limited partnership or limited liability company that is administered by a
Lender or an Affiliate of a Lender and (i) is organized under the laws of the
United States of America or any state thereof, (ii) is engaged primarily in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Xxxxx'x.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association LIBOR
rate for deposits in U.S. dollars as reported by Bloomberg or, if Bloomberg is
not available, by any other generally recognized financial information service
as of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that, if no such British Bankers' Association LIBOR rate is available to the
Administrative Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which Bank One or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
8
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the then Applicable Margin, changing as and when the Applicable Margin
changes.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and each Agent, taxes imposed on its overall net income,
and franchise taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or Agent is incorporated or organized or any political
combination or subdivision or taxing authority thereof or (ii) the jurisdiction
in which such Agent's or Lender's principal executive office or such Lender's
applicable Lending Installation is located or in which, other than as a direct
result of the transaction evidenced by this Agreement, such Agent or Lender
otherwise is, or at any time was, engaged in business.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Credit Agreement" means that certain Credit Agreement dated
as of March 30, 1998 among the Borrower, the lenders parties thereto, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Arranger and Syndication Agent,
NationsBank, N.A., as Documentation Agent, and Bank One, NA (formerly known as
The First National Bank of Chicago), as Administrative Agent, as the same has
been amended, restated, supplemented or otherwise modified from time to time.
"Facility LC" is defined in Section 2.21.1.
"Facility LC Application" is defined in Section 2.21.3.
"Facility LC Collateral Account" is defined in Section 2.21.11.
"Facility Termination Date" means the earlier of (a) November 5, 2004,
and (b) the date of termination in whole of the Aggregate Commitment pursuant to
Section 2.6.2 hereof or the Commitments pursuant to Section 8.1 hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
9
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (ii) any agreement, device or
arrangement providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency and interest rate options, puts or warrants.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, changing when
and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan or portion thereof, which, except as
otherwise provided in Section 2.12, bears interest at the Floating Rate.
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Borrower or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Borrower, any of its respective
Subsidiaries or any member of its Controlled Group, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law, is
required to be funded through a trust or other funding vehicle. "Foreign
Subsidiary" means a Subsidiary of the Borrower which is not a Domestic
Subsidiary.
"Funded Indebtedness" means at any time the aggregate dollar amount of
(i) Indebtedness which has actually been funded and is outstanding at such time,
whether or not such amount is due or payable at such time, (ii) the undrawn
amount of standby letters of credit and (iii) Contingent Obligations with
respect to the Funded Indebtedness of any other Person.
"Guarantor" shall mean each Subsidiary of the Borrower that is a
Domestic Subsidiary as of the Closing Date and each other Subsidiary that has
become a guarantor of the Obligations hereunder in accordance with the terms of
Section 6.10.
10
"Guaranty" means that certain Guaranty (and any and all supplements
thereto) executed from time to time by each Guarantor in favor of the
Administrative Agent for the benefit of itself and the Lenders, in substantially
the form of Exhibit H attached hereto, as amended, restated, supplemented or
otherwise modified from time to time.
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations of such Person to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) obligations, contingent or otherwise, with respect to letters
of credit and bankers' acceptances, (viii) Contingent Obligations, (ix) Net
Xxxx-to-Market Exposure under Financial Contracts, (x) Off-Balance Sheet
Liabilities, and (xi) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on a consolidated balance sheet of such Person.
"Indebtedness" of the Borrower includes the Indebtedness of any joint venture,
unless it is nonrecourse to the Borrower and its Subsidiaries.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months or such other period agreed to by the Lenders
and the Borrower, commencing on a Business Day selected by the Borrower pursuant
to this Agreement. Such Interest Period shall end on but exclude the day which
corresponds numerically to such date one, two, three or six months or such other
agreed upon period thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month or such other succeeding period, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month or such
other succeeding period. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance, extension of credit
(other than accounts receivable arising in the ordinary course of business on
terms customary in the trade, but including accounts receivable from other
Persons which are not current assets or did not arise from sales to such other
Person in the ordinary course of business) or contribution of capital by such
Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; and any structured notes, Financial
Contracts, derivative financial instruments and other similar instruments or
contracts owned by such Person. Notwithstanding the foregoing, an Acquisition
shall not be deemed to be an Investment.
11
"LC Fee" is defined in Section 2.21.4.
"LC Issuer" means Bank One (or any Affiliate of Bank One designated by
Bank One) or any of the other Lenders, as applicable, in its respective capacity
as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount of all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.21.5.
"Lender Increase Notice" is defined in Section 2.6.3(i) hereof.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lender" includes Bank One in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or an Agent, the
office, branch, subsidiary or affiliate of such Lender or Agent listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith, or on a Schedule or otherwise selected by such Lender or
Agent pursuant to Section 2.18.
"Leverage Ratio" is defined in Section 6.21.1.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loan" means a Revolving Loan or a Swing Line Loan, as applicable.
"Loan Documents" means this Agreement, the Facility LC Applications,
the Guaranty, and all other documents, instruments, notes (including any Notes
issued pursuant to Section 2.14, if requested) and agreements executed in
connection therewith or contemplated thereby, as the same may be amended,
restated or otherwise modified and in effect from time to time.
"Loan Party" is defined in Section 4.1(i).
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower or any of its
Subsidiaries to perform its respective obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agents, the LC Issuers or the Lenders
thereunder.
"Material Indebtedness" means Indebtedness in an outstanding principal
amount of $20,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than U.S. dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
12
"Modify" and "Modification" are defined in Section 2.21.1.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Financial Contracts. "Unrealized losses"
means the fair market value of the cost to such Person of replacing each
Financial Contract as of the date of determination (assuming such Financial
Contract were to be terminated as of that date), and "unrealized profits" means
the fair market value of the gain to such Person of replacing such Financial
Contract as of the date of determination (assuming such Financial Contract were
to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14(iv).
"Obligations" means all Loans, Reimbursement Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
any of the Agents, any LC Issuer, any Lender, the Arranger, any affiliate of the
Agents, any LC Issuer, or any Lender, the Arranger, or any indemnitee under the
provisions of Section 9.6 or any other provisions of the Loan Documents, in each
case of any kind or nature, present or future, arising under this Agreement or
any other Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, foreign exchange risk, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Borrower or any of its Subsidiaries under this
Agreement or any other Loan Document.
13
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of borrowing but which does not constitute a liability on the balance
sheets of such Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Loans outstanding at
such time, plus (ii) an amount equal to its Pro Rata Share of the obligations to
purchase participations in Swing Line Loans, plus (iii) an amount equal to its
Pro Rata Share of the LC Obligations at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 6.15(vi).
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule identifying the Applicable Margin
and Applicable Fee Rate attached hereto and identified as such.
14
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Proposed New Lender" is defined in Section 2.6.3(i) hereof.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) and the denominator of which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's Outstanding Credit Exposure at such time and
the denominator of which is the sum of the Aggregate Outstanding Credit
Exposure.
"Purchase Price" means the total consideration and other amounts
payable in connection with any Acquisition, including, without limitation, any
portion of the consideration payable in cash, the value of any Capital Stock or
other equity interests of the Borrower (other than treasury stock of the
Borrower repurchased prior to the Closing Date) or any Subsidiary issued as
consideration for such Acquisition, all Indebtedness and other monetary
liabilities incurred or assumed in connection with such Acquisition and all
transaction costs and expenses incurred in connection with such Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
15
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means with respect to any LC Issuer, at any
time, the aggregate of all obligations of the Borrower then outstanding under
Section 2.21 to reimburse such LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event, as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation or
otherwise waived the requirement of Section 4043(a) of ERISA that it be notified
within thirty (30) days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
fifty-one percent (51%) of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding at least
fifty-one percent (51%) of the Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on "Eurodollar
liabilities" (as defined in Regulation D).
"Revolving Loan" means, with respect to a Lender, each loan made by
such Lender pursuant to its commitment to lend set forth in Section 2.1 (or any
conversion or continuation thereof).
"Risk Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
16
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Selling Lender" is defined in Section 2.6.3(ii).
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than ten
percent (10%) of the consolidated assets of the Borrower and its Subsidiaries as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made, or (ii) is responsible for more than ten percent (10%) of
the Consolidated Net Income of the Borrower and its Subsidiaries as reflected in
the financial statements referred to in clause (i) above.
"Swing Line Borrowing Notice" is defined in Section 2.2.2.
"Swing Line Lender" means Bank One or such other Lender which may
succeed to its rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.2.
"Syndication Agent" means each of SunTrust Bank and U.S. Bank National
Association, in each case in its capacity as the syndication agent for the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
and any successor Syndication Agent appointed pursuant to Article X.
17
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Transferred Credit" is defined in Section 2.6.3(ii).
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance, and with respect to any Loan, its nature
as a Floating Rate Loan or a Eurodollar Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance with
Agreement Accounting Principles.
1.2. References. Any references to the Borrower's Subsidiaries shall
not in any way be construed as consent by the Administrative Agent or any Lender
to the establishment, maintenance or acquisition of any Subsidiary, except as
may otherwise be permitted hereunder.
18
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and prior to
the Facility Termination Date, upon the satisfaction of the conditions precedent
set forth in Sections 4.1 and 4.2, as applicable, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to (i)
make Revolving Loans to the Borrower, (ii) to participate in Swing Line Loans
and (iii) participate in Facility LCs issued upon the request of the Borrower,
provided that, after giving effect to the making of each Revolving Loan, the
making of each Swing Line Loan and the issuance of each such Facility LC, such
Lender's Outstanding Credit Exposure shall not exceed its Commitment. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire automatically on the Facility
Termination Date. The LC Issuers will issue Facility LCs hereunder on the terms
and conditions set forth in Section 2.21.
2.2. Swing Line Loans.
2.2.1. Amount of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 4.2 and, if such Swing Line Loan is to be made on
the date of the initial Advance hereunder, the satisfaction of the conditions
precedent set forth in Section 4.1 as well, from and including the date of this
Agreement and prior to the Facility Termination Date, the Swing Line Lender, on
the terms and conditions set forth in this Agreement, shall make Swing Line
Loans to the Borrower from time to time in an aggregate principal amount not to
exceed $5,000,000, provided that the Aggregate Outstanding Credit Exposure shall
not at any time exceed the Aggregate Commitment, and provided further that at no
time shall the sum of (i) the Swing Line Lender's share of the obligations to
participate in the Swing Line Loans, plus (ii) the outstanding Revolving Loans
made by the Swing Line Lender pursuant to Section 2.1, plus (iii) the Swing Line
Lender's Pro Rata Share of the LC Obligations, exceed the Swing Line Lender's
Commitment at such time. Subject to the terms of this Agreement, the Borrower
may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.
2.2.2. Borrowing Notice.The Borrower shall deliver to the Administrative Agent
and the Swing Line Lender irrevocable notice (a "Swing Line Borrowing Notice")
not later than 12:00 noon (Chicago time) on the Borrowing Date of each Swing
Line Loan, specifying (i) the applicable Borrowing Date (which date shall be a
Business Day), and (ii) the amount of the requested Swing Line Loan which shall
be an amount not less than $300,000 and integral multiples of $100,000 in excess
thereof. Each Swing Line Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the day such Swing Line Loan is
made to but excluding the date it is paid, at a rate per annum equal, at the
Borrower's option, to the Floating Rate or at a rate per annum agreed to by the
Borrower and the Swing Line Lender at the time of borrowing.
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2.2.3. Making of Swing Line Loans. Promptly after receipt of a Swing Line
Borrowing Notice, the Administrative Agent shall notify each Lender by fax, or
other similar form of transmission, of the requested Swing Line Loan. Not later
than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing Line
Lender shall make available the Swing Line Loan, in funds immediately available
in Chicago, to the Administrative Agent at its address specified pursuant to
Article XIII. The Administrative Agent will promptly deposit the funds so
received from the Swing Line Lender in the Borrower's account with the
Administrative Agent on the Borrowing Date.
2.2.4. Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may a t any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii)shall on the fifth (5th) Business Day after the Borrowing Date
of any Swing Line Loan, require each Lender (including the Swing Line Lender)
to make a Revolving Loan(subject to the limitations set forth in Section 2.1) in
the amount of such Lender's Pro Rata Share of such Swing Line Loan (including,
without limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Each Lender shall make available its required
Revolving Loan, in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XIII, by no later than (i)
4:00 p.m. (Chicago time) on the date of any notice received on or before 2:00
p.m. (Chicago time) on such date pursuant to this Section 2.2.4 and (ii) 10:00
a.m. (Chicago time) on the Business Day immediately following the date of any
such notice received after 2:00 p.m. (Chicago time) on such date. Revolving
Loans made pursuant to this Section 2.2.4 shall initially be Floating Rate Loans
and thereafter may be continued as Floating Rate Loans or converted into
Eurodollar Loans in the manner provided in Section 2.10 and subject to the other
conditions and limitations set forth in this Article II. Unless a Lender shall
have notified the Swing Line Lender, prior to its making any Swing Line Loan,
that any applicable condition precedent set forth in Sections 4.1 or 4.2 had not
then been satisfied, such Lender's obligation to make Revolving Loans pursuant
to this Section 2.2.4 to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against any Agent,
the Swing Line Lender or any other Person, (b) the occurrence or continuance of
a Default or Unmatured Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this Section 2.2.4,
the Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Administrative Agent receives such payment from such Lender
or such obligation is otherwise fully satisfied. In addition to the foregoing,
if for any reason any Lender fails to make, or is prohibited from making,
payment to the Administrative Agent of any amount due under this Section 2.2.4,
such Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Facility Termination Date, the Borrower shall repay in full the outstanding
principal balance of the Swing Line Loans.
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2.3. Required Payments; Termination.
2.3.1. Required Payments. The Aggregate Outstanding Credit Exposure and all
other unpaid Obligations (other than LC Obligations that have been cash
collateralized pursuant to Section 8.1), shall be paid in full by the Borrower
on the Facility Termination Date.
2.3.2. Termination. Notwithstanding the termination of this Agreement on the
Facility Termination Date, until all of the Obligations (other than contingent
indemnity obligations) shall have been fully paid and satisfied and all
financing arrangements among the Borrower and the Lenders hereunder and under
the other Loan Documents shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive and the
Administrative Agent shall be entitled to retain its security interest in and to
all existing and future collateral (if any).
2.4. Ratable Loans. Each Advance hereunder (other than any Swing Line Loan)
shall consist of Revolving Loans made from the several Lenders ratably according
to their Pro Rata Shares.
2.5. Types of Advances. The Advances may be Revolving Loans consisting of
Floating Rate Advances or Eurodollar Advances, or a combination thereof,
selected by the Borrower in accordance with Sections 2.9 and 2.10, or Swing Line
Loans selected by the Borrower in accordance with Section 2.2.
2.6. Commitment Fee; Reductions in Aggregate Commitment; Increases in
Aggregate Commitment.
2.6.1. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee (the "Commitment Fee") at
a per annum rate equal to the Applicable Fee Rate on the daily unused portion of
such Lender's Commitment from the Closing Date to and including the Facility
Termination Date, payable quarterly in arrears on each Payment Date hereafter
including, without limitation, the Facility Terminate Date. Swing Line Loans
shall count as usage of any Lender's Commitment (in the amount of such Lender's
Pro Rata Share thereof) for the purpose of calculating the Commitment Fee due
hereunder.
2.6.2. Reductions in Aggregate Commitment. The Borrower may permanently reduce
the Aggregate Commitment in whole, or in part ratably among the Lenders in a
minimum amount of $3,000,000 (and in multiples of $3,000,000 if in excess
thereof), upon at least three (3) Business Days' prior written notice to the
Administrative Agent of such reduction, which notice shall specify the amount of
any such reduction; provided, however, that the amount of the Aggregate
Commitment may not be reduced below the Aggregate Outstanding Credit Exposure.
All accrued Commitment Fees shall be payable on the effective date of any
termination of all of the obligations of the Lenders to make Credit Extensions
hereunder.
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2.6.3. Increase of Aggregate Commitment. (i) At any time, the Borrower may
request that the Aggregate Commitment be increased, provided that, without the
prior written consent of all of the Lenders, (a) the Aggregate Commitment shall
at no time exceed $175,000,000; (b) the Borrower shall not previously have
reduced the Aggregate Commitment; and (c) the Borrower shall not be entitled to
make such request more than twice. Such request shall be made in a written
notice given to the Administrative Agent and the Lenders by the Borrower not
less than twenty (20) Business Days prior to the proposed effective date of such
increase, which notice (a "Commitment Increase Notice") shall specify the amount
of the proposed increase in the Aggregate Commitment and the proposed effective
date of such increase. In the event of such a Commitment Increase Notice, each
of the Lenders shall be given the opportunity to participate in the requested
increase ratably in proportions that their respective Commitments bear to the
Aggregate Commitment. No Lender shall have any obligation to increase its
Commitment pursuant to a Commitment Increase Notice. On or prior to the date
that is fifteen (15) Business Days after receipt of the Commitment Increase
Notice, each Lender shall submit to the Administrative Agent a notice indicating
the maximum amount by which it is willing to increase its Commitment in
connection with such Commitment Increase Notice (any such notice to the
Administrative Agent being herein a "Lender Increase Notice"). Any Lender which
does not submit a Lender Increase Notice to the Administrative Agent prior to
the expiration of such fifteen (15) Business Day period shall be deemed to have
denied any increase in its Commitment. In the event that the increases of
Commitments set forth in the Lender Increase Notices exceed the amount requested
by the Borrower in the Commitment Increase Notice, the Administrative Agent and
the Arranger shall have the right, in consultation with the Borrower, to
allocate the amount of increases necessary to meet the Borrower's Commitment
Increase Notice. In the event that the Lender Increase Notices are less than the
amount requested by the Borrower, not later than three (3) Business Days prior
to the proposed effective date the Borrower may notify the Administrative Agent
of any financial institution that shall have agreed to become a "Lender" party
hereto (a "Proposed New Lender") in connection with the Commitment Increase
Notice. Any Proposed New Lender shall be subject to the consent of the
Administrative Agent (which consent shall not be unreasonably withheld). If the
Borrower shall not have arranged any Proposed New Lender(s) to commit to the
shortfall (if any) from the Lender Increase Notices, then the Borrower shall
have the option to reduce the amount of its Commitment Increase Notice to the
aggregate amount set forth in the Lender Increase Notices or to withdraw its
Commitment Increase Notice. Based upon the Lender Increase Notices, any
allocations made in connection therewith and any notice regarding any Proposed
New Lender, if applicable, the Administrative Agent shall notify the Borrower
and the Lenders on or before the Business Day immediately prior to the proposed
effective date of the amount of each Lender's and Proposed New Lenders'
Commitment (the "Effective Commitment Amount") and the amount of the Aggregate
Commitment, which amount shall be effective on the following Business Day. Any
increase in the Aggregate Commitment shall be subject to the following
conditions precedent: (A) the Borrower shall have obtained the consent thereto
22
of each Guarantor and its reaffirmation of the Loan Document(s) executed by it,
which consent and reaffirmation shall be in writing and in form and substance
reasonably satisfactory to the Administrative Agent, (B) as of the date of the
Commitment Increase Notice and as of the proposed effective date of the increase
in the Aggregate Commitment, all representations and warranties made by any Loan
Party in any Loan Document shall be true and correct in all material respects as
though made on such date and no event shall have occurred and then be continuing
which constitutes a Default or Unmatured Default, (C) the Borrower, the
Administrative Agent and each Proposed New Lender or Lender that shall have
agreed to provide a "Commitment" in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit I hereto, (D) counsel for the Borrower and
for the Guarantors shall have provided to the Administrative Agent supplemental
opinions in form and substance reasonably satisfactory to the Administrative
Agent and (E) the Borrower and each Proposed New Lender shall otherwise have
executed and delivered such other instruments and documents as may be required
under Article IV or that the Administrative Agent shall have reasonably
requested in connection with such increase. If any fee shall be charged by the
Lenders whose Commitment is increasing in connection with any such increase,
such fee shall be in accordance with then prevailing market conditions, which
market conditions shall have been reasonably documented by the Administrative
Agent to the Borrower. Upon satisfaction of the conditions precedent to any
increase in the Aggregate Commitment, the Administrative Agent shall promptly
advise the Borrower and each Lender of the effective date of such increase. Upon
the effective date of any increase in the Aggregate Commitment that is provided
by a Proposed New Lender, such Proposed New Lender shall be a party to this
Agreement as a Lender and shall have the rights and obligations of a Lender
hereunder. Nothing contained herein shall constitute, or otherwise be deemed to
be, a commitment on the part of any Lender to increase its Commitment hereunder
at any time.
(ii) For purposes of this clause (ii), (A) the term "Buying Lender(s)" shall
mean (1) each Lender the Effective Commitment Amount of which is greater than
its Commitment prior to the effective date of any increase in the Aggregate
Commitment and (2) each Proposed New Lender that is allocated an Effective
Commitment Amount in connection with any Commitment Increase Notice, and (b) the
term "Selling Lender(s)" shall mean each Lender whose Commitment is not being
increased from that in effect prior to such increase in the Aggregate
Commitment. Effective on the effective date of any increase in the Aggregate
Commitment pursuant to clause (i) above, each Selling Lender hereby sells,
grants, assigns and conveys to each Buying Lender, without recourse, warranty,
or representation of any kind, except as specifically provided herein, an
undivided percentage of such Selling Lender's right, title and interest in and
to its Outstanding Credit Exposure (the "Transferred Credit") in the respective
dollar amounts and percentages necessary so that, from and after such sale, each
such Selling Lender's Outstanding Credit Exposure shall equal such Selling
Lender's Pro Rata Share (calculated based upon the Effective Commitment Amounts)
of the Aggregate Outstanding Credit Exposure. Effective on the effective date of
the increase in the Aggregate Commitment pursuant to clause (i) above, each
Buying Lender hereby purchases and accepts such grant, assignment and conveyance
of the Transferred Credit from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the Transferred Credit purchased
hereby shall equal the respective dollar amount necessary so that, from and
after such payments, each Buying Lender's Outstanding Credit Exposure shall
23
equal such Buying Lender's Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Such amount
shall be payable on the effective date of the increase in the Aggregate
Commitment by wire transfer of immediately available funds to the Administrative
Agent. The Administrative Agent, in turn, shall wire transfer any such funds
received to the Selling Lenders, in same day funds, for the sole account of the
Selling Lenders. Each Selling Lender hereby represents and warrants to each
Buying Lender that such Selling Lender owns the Outstanding Credit Exposure
being sold and assigned hereby for its own account and has not sold, transferred
or encumbered any or all of its interest in such Outstanding Credit Exposure,
except for participations which will be extinguished upon payment to Selling
Lender of an amount equal to the portion of the Outstanding Credit Exposure
being sold by such Selling Lender. Each Buying Lender hereby acknowledges and
agrees that, except for each Selling Lender's representations and warranties
contained in the foregoing sentence, each such Buying Lender has entered into
its Commitment and Acceptance with respect to such increase on the basis of its
own independent investigation and has not relied upon, and will not rely upon,
any explicit or implicit written or oral representation, warranty or other
statement of the Lenders or the Administrative Agent concerning the
authorization, execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents. The
Borrower hereby agrees to compensate each Selling Lender for all losses,
expenses and liabilities incurred by each Lender in connection with the sale and
assignment of any Eurodollar Loan hereunder on the terms and in the manner as
set forth in Section 3.4.
2.7. Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $3,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$3,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.8. Optional Principal Payments. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances, or any
portion of the outstanding Floating Rate Advances, in a minimum aggregate amount
of $3,000,000 or any integral multiple of $1,000,000 in excess thereof, upon
prior notice to the Administrative Agent at or before 10:00 a.m. (Chicago time)
on the date of such payment. The Borrower may from time to time pay, subject to
the payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurodollar Advances or, in a minimum
aggregate amount of $3,000,000 or any integral multiple of $1,000,000 in excess
thereof, any portion of the outstanding Eurodollar Advances upon three (3)
Business Days' prior notice to the Administrative Agent. The Borrower may at any
time pay, without penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount of $300,000 and increments of $100,000 in excess thereof, any
portion of the outstanding Swing Line Loans, with notice to the Administrative
Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the date of
repayment.
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2.9. Method of Selecting Types and Interest Periods for New Advances; Method
of Borrowing.
2.9.1. Method of Selecting Types and Interest Periods for New Advances. Other
than with respect to Swing Line Loans (which shall be governed by Section 2.2),
the Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time;
provided that there shall be no more than seven (7) Interest Periods in effect
with respect to all of the Revolving Loans at any time, unless such limit has
been waived by the Administrative Agent in its sole discretion. The Borrower
shall give the Administrative Agent irrevocable notice (a "Borrowing Notice")
not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each Floating
Rate Advance and three (3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
2.9.2. Method of Borrowing. On each Borrowing Date, each Lender shall make
available its Loan or Loans not later than noon, Chicago time, in Federal or
other funds immediately available to the Administrative Agent, in Chicago,
Illinois at its address specified in or pursuant to Article XIII. The
Administrative Agent will deposit the funds so received from the Lenders in the
Borrower's account with the Administrative Agent at the Administrative Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.9.2, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan, such Lender shall apply the proceeds of the Loan it is then
making to the repayment of principal of the maturing Loan.
2.10. Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.10 or are repaid in accordance with Section 2.8. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time each such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless (x) such Eurodollar
Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower
shall have given the Administrative Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
25
Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than a Swing Line Loan) into a Eurodollar Advance, provided that any conversion
of any Eurodollar Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 10:00 a.m. (Chicago time) at least three (3)
Business Days prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
Promptly after receipt of any Conversion/Continuation Notice, the Administrative
Agent shall provide the Lenders with notice thereof.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.10, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.10 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower's selections under
Sections 2.9 and 2.10 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date.
2.12. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.9, 2.10 or 2.11, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Advance.
26
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum, (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum
and (iii) the LC Fee shall be increased by 2% per annum, provided that, during
the continuance of a Default under Section 7.6 or 7.7, the interest rates set
forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in
clause (iii) above shall be applicable to all Credit Extensions without any
election or action on the part of the Administrative Agent or any Lender.
2.13. Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to the
Borrower, by 12:00 noon (Chicago time) on the date when due and shall (except
(i) in the case of Reimbursement Obligations for which the applicable LC Issuer
has not been fully indemnified by the Lenders or (ii) with respect to repayments
of Swing Line Loans) be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at such
Lender's address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. Each reference to the Administrative Agent in this Section 2.13
shall also be deemed to refer, and shall apply equally, to the applicable LC
Issuer, in the case of payments required to be made by the Borrower to such LC
Issuer pursuant to Section 2.21.6. The Administrative Agent is hereby
authorized, upon the occurrence and during the continuance of a Default, to
charge the account of the Borrower maintained with Bank One or any of its
Affiliates for each payment of principal, interest and fees as it becomes due
hereunder.
2.14. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it will
record (a) the date and the amount of each Revolving Loan made hereunder, the
Type thereof and the Interest Period, if any, applicable thereto, (b) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder, (c) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 12.3, (d) the original stated amount of each Facility LC and
the amount of LC Obligations outstanding at any time, (e) the amount of any sum
27
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof, and (f) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all fees, charges,
expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to clauses
(i) and (ii) above shall be prima facie evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory note
or, in the case of the Swing Line Lender, promissory notes representing its
Revolving Loans and Swing Line Loans, respectively, substantially in the form of
Exhibit E, with appropriate changes for notes evidencing Swing Line Loans (each,
a "Note"). In such event, the Borrower shall prepare, execute and deliver to
such Lender such Note or Notes payable to the order of such Lender. Thereafter,
the Loans evidenced by each such Note and interest thereon shall at all times
(prior to any assignment pursuant to Section 12.3) be represented by one or more
Notes payable to the order of the payee named therein, except to the extent that
any such Lender subsequently returns any such Note for cancellation and requests
that such Loans once again be evidenced as described in clauses (i) and (ii)
above.
2.15. Telephonic Notices. The Borrower hereby authorizes the Lenders and
the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of the Borrower, it being understood that
the foregoing authorization is specifically intended to allow Borrowing Notices
and Conversion/Continuation Notices to be given telephonically. The Borrower
agrees to deliver promptly to the Administrative Agent a written confirmation,
signed by an Authorized Officer, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance and Swing Line Loan shall be payable in arrears on
each Payment Date, commencing with the first such date to occur after the
Closing Date, on any date on which the Floating Rate Advance or Swing Line Loan
is prepaid, whether due to acceleration or otherwise, and at maturity. Interest
accrued on that portion of the outstanding principal amount of any Floating Rate
Advance converted into a Eurodollar Advance on a day other than a Payment Date
shall be payable on the date of conversion. Interest accrued on each Eurodollar
Advance shall be payable on the last day of its applicable Interest Period, on
28
any date on which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity; provided that interest accrued on each Eurodollar
Advance having an Interest Period longer than three (3) months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest on Eurodollar Advances, Swing Line Loans, LC Fees and
Commitment Fees shall be calculated for actual days elapsed on the basis of a
360-day year; interest on Floating Rate Advances shall be calculated for actual
days elapsed on the basis of a 365/366-day year. Interest shall be payable for
the day an Advance is made but not for the day of any payment on the amount paid
if payment is received prior to 12:00 noon (Chicago time) at the place of
payment. If any payment of principal of or interest on an Advance, any fees or
any other amounts payable to any Agent or any Lender hereunder shall become due
on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest, fees and commissions in
connection with such payment.
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Swing Line Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. Promptly after notice from the
applicable LC Issuer, the Administrative Agent will notify each Lender of the
contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable to
each Eurodollar Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.18. Lending Installations. Subject to Section 3.6, each Lender may book
its Loans and its participation in any LC Obligations and Swing Line Loans and
the LC Issuers may book the Facility LCs at any Lending Installation selected by
such Lender or the applicable LC Issuer, as the case may be, and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation and the Loans, Facility LCs, participations in
LC Obligations and Swing Line Loans and any Notes issued hereunder shall be
deemed held by each Lender or the applicable LC Issuer, as the case may be, for
the benefit of any such Lending Installation. Each Lender and each LC Issuer
may, by written notice to the Administrative Agent and the Borrower in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made or participated in by it or
Facility LCs will be issued by it and for whose account Loan payments or
payments with respect to Facility LCs are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the
time on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
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payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three (3) days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan,
including the interest rate applicable pursuant to Section 2.12.
2.20. Replacement of Lender. The Borrower shall have the right, in its sole
discretion, at any time and from time to time to terminate the Commitment of any
Lender (an "Affected Lender"), in whole, upon at least thirty (30) days' prior
notice to the Administrative Agent and such Lender, (a) if such Lender has
failed or refused to make available the full amount of any Revolving Loan as
required by its Commitment hereunder, or (b) if such Lender has demanded that
the Borrower make any additional payment to such Lender pursuant to Section 3.1,
3.2 or 3.5, or if such Lender's obligation to make or continue, or convert
Floating Rate Advances into, Eurodollar Advances has been suspended pursuant to
Section 3.3; provided that no Default or Unmatured Default shall have occurred
and be continuing at the time of such replacement, and that, concurrently with
such replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the Administrative Agent shall agree, as of
such date, to purchase for cash the Advances and other Obligations due to the
Affected Lender pursuant to an Assignment Agreement substantially in the form of
Exhibit C and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Affected Lender to be terminated as of such date
and to comply with the requirements of Section 12.3 applicable to assignments,
and (ii) the Borrower shall pay to such Affected Lender in immediately available
funds on the day of such replacement (A) all interest, fees and other amounts
then accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Affected Lender under Sections 3.1, 3.2 and 3.5, to the extent applicable,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
2.21. Facility LCs.
2.21.1. Issuance; Transitional Facility LCs.
(i) Issuance. The LC Issuers hereby agree, on the terms and conditions set
forth in this Agreement, to issue standby and performance letters of credit
(each, together with the letters of credit deemed issued by the LC Issuers
hereunder pursuant to Section 2.21.1(ii), a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify," and each such
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action a "Modification"), from time to time from and including the date of this
Agreement and prior to the Facility Termination Date upon the request of the
Borrower; provided that immediately after each such Facility LC is issued or
Modified, (i) the aggregate amount of the outstanding LC Obligations shall not
exceed $25,000,000 and (ii) the Aggregate Outstanding Credit Exposure shall not
exceed the Aggregate Commitment. No Facility LC shall have an expiry date later
than one year after its issuance; provided that any Facility LC may provide for
the renewal thereof for additional one-year periods. If any Facility LCs remain
outstanding on the Facility ___ Termination Date, the Borrower shall comply with
Sections 2.21.11 and 8.1 (whether or not any Default exists at such time) with
respect to such Facility LCs and the Facility LC Collateral Account.
(ii) Transitional Provision. Schedule 2.21 contains a schedule of certain
letters of credit issued by Bank One for the account of the Borrower prior to
the Closing Date. Subject to the satisfaction of the conditions contained in
Sections 4.1 and 4.2, from and after the Closing Date such letters of credit
shall be deemed to be Facility LCs issued pursuant to this Section 2.21.
2.21.2. Participations. On the date of this Agreement, with respect to the
Facility LCs identified on Schedule 2.21, and upon the issuance or Modification
by the applicable LC Issuer of a Facility LC in accordance with this Section
2.21, such LC Issuer shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably sold to each Lender, and each
Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from such LC Issuer, a participation
in such Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.21.3. Notice. Subject to Section 2.21.1, the Borrower shall give the
applicable LC Issuer notice prior to 10:00 a.m. (Chicago time) at least three
(3) Business Days prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the transactions proposed
to be supported thereby. Upon receipt of such notice, the applicable LC Issuer
shall promptly notify the Administrative Agent, and the Administrative Agent
shall promptly notify each Lender, of the contents thereof and of the amount of
such Lender's participation in such proposed Facility LC. The issuance or
Modification by any LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which such LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to such LC Issuer and that the
Borrower shall have executed and delivered such application agreement and/or
such other instruments and agreements relating to such Facility LC as the
applicable LC Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this Agreement
and the terms of any Facility LC Application, the terms of this Agreement shall
control.
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2.21.4. LC Fees. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, (i) with respect to each standby Facility LC, a letter of credit fee at
a per annum rate equal to the Applicable Margin for Eurodollar Loans in effect
from time to time on the average daily undrawn stated amount under such standby
Facility LC, such fees to be payable in arrears on each Payment Date, and (ii)
with respect to each commercial Facility LC, a one-time letter of credit fee in
an amount equal to the product of (A) 50% of the Applicable Margin for
Eurodollar Loans in effect from time to time times (B) the initial stated amount
(or, with respect to a Modification of any such commercial Facility LC which
increases the stated amount thereof, such increase in the stated amount)
thereof, such fee to be payable on the date of such issuance or increase (each
such fee described in this sentence being an "LC Fee"). The Borrower shall also
pay to each LC Issuer for its own account (x) at the time of such LC Issuer's
issuance of each standby Facility LC, a fronting fee equal to 0.125% of the
initial stated amount (or, with respect to a Modification of any such standby
Facility LC which increases the stated amount thereof, such increase in the
stated amount) of such Facility LC issued by such LC Issuer, and (y) documentary
and processing charges in connection with the issuance or Modification of and
draws under Facility LCs in accordance with the applicable LC Issuer's standard
schedule for such charges as in effect from time to time.
2.21.5. Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the applicable LC Issuer shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Lender as
to the amount to be paid by such LC Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The responsibility of each LC
Issuer to the Borrower and each Lender shall be only to determine that the
documents (including each demand for payment) delivered under each Facility LC
issued by such LC Issuer in connection with such presentment shall be in
conformity in all material respects with such Facility LC. Each LC Issuer shall
endeavor to exercise the same care in the issuance and administration of the
Facility LCs issued by such LC Issuer as it does with respect to letters of
credit in which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the applicable LC
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Unmatured Default or Default or any condition
precedent whatsoever, to reimburse such LC Issuer on demand for (i) such
Lender's Pro Rata Share of the amount of each payment made by such LC Issuer
under each Facility LC issued by such LC Issuer to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.21.6 below, plus (ii) interest
on the foregoing amount to be reimbursed by such Lender, for each day from the
date of the applicable LC Issuer's demand for such reimbursement (or, if such
demand is made after 11:00 a.m. (Chicago time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal Funds
Effective Rate for the first three days and, thereafter, at a rate of interest
equal to the rate applicable to Floating Rate Advances.
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2.21.6. Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by such LC Issuer upon any
drawing under any Facility LC issued by such LC Issuer, without presentment,
demand, protest or other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from asserting any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (i) the willful misconduct or
gross negligence of the applicable LC Issuer in determining whether a request
presented under any Facility LC issued by it complied with the terms of such
Facility LC or (ii) the applicable LC Issuer's failure to pay under any Facility
LC issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. All such amounts paid by any
LC Issuer and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or before
the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC Payment
Date. Each LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by such LC Issuer, but only to the extent such Lender has
made payment to such LC Issuer in respect of such Facility LC pursuant to
Section 2.21.5. Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Borrowing Notice in compliance with
Section 2.9 and the satisfaction of the applicable conditions precedent set
forth in Article IV), the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
2.21.7. Obligations Absolute. The Borrower's obligations under this Section 2.21
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuers
and the Lenders that the LC Issuers and the Lenders shall not be responsible
for, and the Borrower's Reimbursement Obligation in respect of any Facility LC
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to which any Facility LC
may be transferred or any claims or defenses whatsoever of the Borrower or of
any of its Affiliates against the beneficiary of any Facility LC or any such
transferee. No LC Issuer shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by any LC Issuer or any Lender under or in connection
with any Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall
not put any LC Issuer or any Lender under any liability to the Borrower. Nothing
in this Section 2.21.7 is intended to limit the right of the Borrower to make a
claim against any LC Issuer for damages as contemplated by the proviso to the
first sentence of Section 2.21.6.
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2.21.8. Actions of LC Issuers. Each LC Issuer shall be entitled to rely, and
shall be fully justified in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by such LC Issuer. Each LC Issuer shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Lenders as it reasonably
deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.21, each LC Issuer shall
in all cases be fully justified in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and any future holders of a participation in any Facility LC.
2.21.9. Indemnification. The Borrower hereby agrees to indemnify and hold
harmless each Lender, each LC Issuer and the Administrative Agent, and their
respective directors, officers, agents and employees from and against any and
all claims and damages, losses, liabilities, costs or expenses which such Person
may incur (or which may be claimed against such Person by any other Person
whatsoever) by reason of or in connection with the issuance, execution and
delivery or transfer of or payment or failure to pay under any Facility LC or
any actual or proposed use of any Facility LC, including, without limitation,
any claims, damages, losses, liabilities, costs or expenses which any LC Issuer
may incur by reason of or in connection with (i) the failure of any Lender to
fulfill or comply with its obligations to such LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of such LC Issuer issuing
any Facility LC which specifies that the term "Beneficiary" included therein
includes any successor by operation of law of the named Beneficiary, but which
Facility LC does not require that any drawing by any such successor Beneficiary
be accompanied by a copy of a legal document, satisfactory to such LC Issuer,
evidencing the appointment of such successor Beneficiary; provided that the
Borrower shall not be required to indemnify any such Person for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the
applicable LC Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of such Facility LC
or (y) any LC Issuer's failure to pay under any Facility LC issued by such LC
Issuer after the presentation to it of a request strictly complying with the
terms and conditions of such Facility LC. Nothing in this Section 2.21.9 is
intended to limit the obligations of the Borrower under any other provision of
this Agreement.
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2.21.10. Lenders' Indemnification. Each Lender shall, ratably in accordance with
its Pro Rata Share, indemnify each LC Issuer, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the applicable LC Issuer's failure to pay under any Facility LC
issued by such LC Issuer after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC) that such
indemnitees may suffer or incur in connection with this Section 2.21 or any
action taken or omitted by such indemnitees hereunder.
2.21.11. Facility LC Collateral Account. The Borrower agrees that it will, as
required by Section 8.1 and until the final expiration date of any Facility LC
and thereafter as long as any amount is payable to the LC Issuers or the Lenders
in respect of any Facility LC, maintain a special collateral account pursuant to
arrangements satisfactory to the Administrative Agent (the "Facility LC
Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Article XIII, in the name of such Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the
Lenders and in which such Borrower shall have no interest other than as set
forth in Section 8.1. The Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the Lenders
and the LC Issuers, a security interest in all of the Borrower's right, title
and interest in and to all funds which may from time to time be on deposit in
the Facility LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Administrative Agent will invest any funds
on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of Bank One having a maturity not exceeding 30 days.
Nothing in this Section 2.21.11 shall either obligate the Administrative Agent
to require the Borrower to deposit any funds in the Facility LC Collateral
Account or limit the right of the Administrative Agent to release any funds held
in the Facility LC Collateral Account in each case other than as required by
Section 8.1.
2.21.12. Rights as a Lender. In its capacity as a Lender, each LC Issuer shall
have the same rights and obligations as any other Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in any such law, rule, regulation, policy, guideline or directive or in
the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or any LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
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(i) subjects any Lender or any applicable Lending Installation or any LC
Issuer to any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender or any LC Issuer in respect of its
Eurodollar Loans, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation or any LC Issuer (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation or any LC Issuer of
making, funding or maintaining its Eurodollar Loans or Commitment or of issuing
or participating in Facility LCs, or reduces any amount receivable by any Lender
or any applicable Lending Installation or any LC Issuer in connection with its
Eurodollar Loans or Commitment, Facility LCs or participations therein, or
requires any Lender or any applicable Lending Installation or any LC Issuer to
make any payment calculated by reference to the amount of Eurodollar Loans or
Commitment, Facility LCs or participations therein held or interest or LC Fees
received by it, by an amount deemed material by such Lender or such LC Issuer as
the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or such LC Issuer, as the case may be, in connection with
such Eurodollar Loans or Commitment, Facility LCs or participations therein,
then, within fifteen (15) days of demand by such Lender or such LC issuer, the
Borrower shall pay such Lender or such LC Issuer such additional amount or
amounts as will compensate such Lender or such LC Issuer, as the case may be,
for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or any LC Issuer
determines the amount of capital required or expected to be maintained by such
Lender, such LC Issuer, any Lending Installation of such Lender or such LC
Issuer, or any corporation controlling such Lender or such LC Issuer, is
increased as a result of a Change, then, within fifteen (15) days of demand by
such Lender or such LC Issuer, the Borrower shall pay such Lender or such LC
Issuer the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender or such LC
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Issuer determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment to make Loans and issue or participate in Facility
LCs, as the case may be, hereunder (after taking into account such Lender's or
such LC Issuer's policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital Guidelines or (ii)
any adoption of, change in, or change in the interpretation or administration of
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any LC Issuer or any Lending
Installation or any corporation controlling any Lender or any LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3. Availability of Types of Advances. If (x) any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not having
the force of law, or (y) the Required Lenders determine that (i) deposits of a
type, currency and maturity appropriate to match fund Eurodollar Advances are
not available or (ii) the interest rate applicable to Eurodollar Advances does
not accurately reflect the cost of making or maintaining Eurodollar Advances,
then the Administrative Agent shall suspend the availability of Eurodollar
Advances and require any affected Eurodollar Advances to be repaid or converted
to Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, or a Eurodollar Advance is not prepaid, converted or continued on
the date specified by the Borrower for any reason, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Advance.
3.5. Taxes.
(i) All payments by the Borrower to or for the account of any Lender, LC
Issuer or Agent hereunder or under any Note or Facility LC Application shall be
made free and clear of and without deduction for any and all Taxes. If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender, LC Issuer or Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender, LC Issuer or Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (b)
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the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within thirty (30) days after such payment
is made.
(ii) In addition, the Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any Note or
Facility LC Application or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or Facility LC Application ("Other
Taxes").
(iii) The Borrower hereby agrees to indemnify the Agents, the LC Issuers and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agents, the LC Issuers or such Lender as a result of
its Commitment, any Loans made by it hereunder, or otherwise in connection with
its participation in this Agreement and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. ___ Payments
due under this indemnification shall be made within thirty (30) days of the date
the Agents, the LC Issuers or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not organized under the laws of the United States
of America or a state thereof (each a "Non-U.S. Lender") agrees that it will,
not more than ten (10) Business Days after the date on which it becomes a party
to this Agreement, (i) deliver to the Administrative Agent two (2) duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, and (ii) deliver to the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
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(v) For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent under
this subsection, together with all costs and expenses related thereto (including
reasonable attorneys' fees and time charges of attorneys for the Administrative
Agent, which attorneys may be employees of the Administrative Agent); provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final, non-appealable judgment in a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Administrative Agent. The obligations of the Lenders under this Section
3.5(vii) shall survive the payment of the Obligations and termination of this
Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the good faith judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
39
copy to the Administrative Agent) as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of manifest
error. Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type, currency and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement of any
Lender shall be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Section 3.1, 3.2, 3.4 or 3.5
shall survive payment of the Obligations and termination of this Agreement. If
any Lender fails to notify the Borrower of any event or circumstance that will
entitle such Lender to compensation pursuant to Sections 3.1, 3.2 or 3.5 within
90 days after such Lender obtains knowledge of such event or circumstance, then
such Lender shall not be entitled to receive such compensation from the Borrower
for any amount arising prior to the date that is 90 days before the date on
which such Lender notifies the Borrower of such event or circumstance.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to make the
initial Credit Extension hereunder unless (a) the representations and warranties
contained in Article V are true and correct as of such date and (b) the Borrower
has furnished to the Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificates of incorporation (or similar
constitutive documents) of the Borrower and each Guarantor (each a "Loan
Party"), together with all amendments thereto, and a certificate of good
standing, each certified by the appropriate governmental officer in its
jurisdiction of organization.
(ii) Copies, certified by the Secretary or Assistant Secretary of each Loan
Party, of such Loan Party's by-laws (or similar constitutive documents) and of
its Board of Directors' resolutions and of resolutions or actions of any other
body authorizing the execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each Loan Party, which shall identify by name and title and bear
the signatures of the Authorized Officers and any other officers of such Loan
Party authorized to sign the Loan Documents to which it is a party and, in the
case of the Borrower, to request Credit Extensions hereunder, upon which
certificate the Agents, the LC Issuers and the Lenders shall be entitled to rely
until informed of any change in writing by the applicable Loan Party.
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(iv) An opening compliance certificate in substantially the form of Exhibit B,
signed by the chief financial officer or treasurer of the Borrower, showing the
calculations necessary to determine compliance with this Agreement as of the
Borrower's fiscal quarter ended September 30, 2001 and stating that on the
initial Credit Extension Date no Default or Unmatured Default has occurred and
is continuing.
(v) (A) A written opinion of the Borrower's and each Guarantor's counsel and
(B) a written opinion of the Administrative Agent's counsel with respect to the
enforceability of this Agreement, the Notes and the Guaranty, in each case in
form and substance satisfactory to the Agents and addressed to the Lenders in
substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the
order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility
LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Administrative Agent and signed by an Authorized
Officer, together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(ix) Evidence satisfactory to the Agents that the Existing Credit Agreement
shall have been or shall simultaneously on the Closing Date be terminated
(except for those provisions that expressly survive the termination thereof),
all loans outstanding and other amounts owed to the lenders or agents thereunder
shall have been or shall simultaneously with the initial Advance hereunder be
paid in full, and all Liens securing the obligations of the Borrower and its
Subsidiaries thereunder shall have been or shall simultaneously with the initial
Advance hereunder be released.
(x) Such other documents as any Lender or its counsel may have reasonably
requested, including, without limitation, each document identified on the List
of Closing Documents attached hereto as Exhibit F.
4.2. Each Credit Extension. The Lenders shall not (except as otherwise set
forth in Section 2.2.4 with respect to Revolving Loans for the purpose of
repaying Swing Line Loans) be required to make any Credit Extension unless on
the applicable Credit Extension Date:
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(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are true and
correct as of such Credit Extension Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
(iii) All legal matters incident to the making of such Credit Extension
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or request for issuance of a Facility LC, or Swing
Line Borrowing Notice, as the case may be, with respect to each Credit Extension
shall constitute a representation and warranty by the Borrower that the
conditions contained in Section 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows to each Lender and the
Agents as of the Closing Date, on the date of the initial Credit Extension
hereunder (if different from the Closing Date) and thereafter on each date
as required by Section 4.2:
5.1. Existence and Standing. The Borrower and each of its Subsidiaries is a
corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except to the extent that the failure to have such authority could
not reasonably be expected to have a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower and each of its Subsidiaries
(to the extent applicable) has the power and authority and legal right to
execute and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the Borrower and any such
Subsidiary of the Loan Documents to which it is a party and the performance of
its obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which such entity is a party constitute
legal, valid and binding obligations of such entity enforceable against such
entity in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
the Borrower or any of its Subsidiaries of the Loan Documents, nor the
42
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or certificate
of incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating agreement or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with, or constitute a default under, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of, any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Borrower or any of its Subsidiaries,
is required to be obtained by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the Credit
Extensions under this Agreement, the payment and performance by the Borrower of
the Obligations or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
5.4. Financial Statements. The December 31, 2000 and July 1, 2001
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Arranger and the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations and cash flows for the fiscal year and
six-month period, respectively, then ended, subject, in the case of the July 1,
2001 financial statements, to normal year-end adjustments and the absence of
notes.
5.5. Material Adverse Change. Since December 31, 2000 there has been no
change in the business, Property, condition (financial or otherwise),
operations, performance or prospects of the Borrower, or the Borrower and its
Subsidiaries taken as a whole, which could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles. Each of the
Borrower's and its Subsidiaries' federal income tax years through December 31,
1997 have closed and neither the Borrower nor any of its Subsidiaries has
executed, or has been requested to execute, extensions of statutes of limitation
on assessment for any completed fiscal year of the Borrower or any of its
Subsidiaries. No tax liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are reasonably adequate.
43
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their Authorized Officers or general counsel, threatened
against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liability incident to any litigation, arbitration or proceeding which could not
reasonably be expected to have a Material Adverse Effect, neither the Borrower
nor any of its Subsidiaries has any contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 (as supplemented from time to time by the
Borrower promptly after the formation, acquisition or dissolution of any
Subsidiary as permitted under this Agreement) contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. Accuracy of Information. No information, schedule, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Arranger, any Agent
or Lender (including, without limitation, the Confidential Information
Memorandum dated September 2001) in connection with the negotiation of, or
compliance with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at such time.
5.10. Regulation U. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying margin stock (within the meaning of Regulations U or X); and
after applying the proceeds of each Advance, margin stock (as defined in
Regulation U) constitutes less than twenty-five percent (25%) of the value of
those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale or pledge, or any other restriction hereunder.
5.11. Material Agreements. Neither the Borrower nor any Subsidiary is a party
to any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
44
Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.12. Compliance With Laws. The Borrower and its Subsidiaries have complied
in all material respects with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property.
5.13. Ownership of Properties.On the date of this Agreement, the Borrower and
its Subsidiaries will have good title, free of all Liens other than those
permitted by Section 6.16, to all of the Property and assets reflected in the
Borrower's most recent consolidated financial statements provided to the
Arranger and the Lenders as owned by the Borrower and its Subsidiaries, other
than Property and assets sold or otherwise disposed of in the ordinary course of
business.
5.14. ERISA; Foreign Pension Matters. The sum of (a) the Unfunded
Liabilities of all Plans and (b) the present value of the aggregate unfunded
liabilities to provide the accrued benefits under all Foreign Pension Plans do
not in the aggregate exceed an amount equal to the sum of (i) five percent (5%)
of the value (as of any date of determination) of all Plan assets allocable to
Plan benefits guaranteed by ERISA and (ii) five percent (5%) of the fair market
value of the assets held in trust or other funding vehicles for accrued benefits
under all Foreign Pension Plans. Each Plan and each Foreign Pension Plan
complies in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan, neither
the Borrower nor any other member of the Controlled Group has withdrawn from any
Multiemployer Plan or initiated steps to do so, and no steps have been taken to
terminate any Plan.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code)
and neither the execution of this Agreement nor the making of Loans hereunder
,gives rise to a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
5.16. Environmental Matters.
(a) In the ordinary course of its business, the Authorized Officers and
general counsel of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Borrower has concluded that Environmental Laws cannot
45
reasonably be expected to have a Material Adverse Effect. Except as set forth on
Schedule 5.16, neither the Borrower nor any Subsidiary has received any notice
to the effect that its operations are not in compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries have obtained all necessary
governmental permits, licenses and approvals which are material to the
operations conducted on their respective properties, including without
limitation, all required permits, licenses and approvals for (i) the emission of
air pollutants or contaminates, (ii) the treatment or pretreatment and discharge
of waste water or storm water, (iii) the treatment, storage, disposal or
generation of hazardous wastes, (iv) the withdrawal and usage of ground water or
surface water, and (v) the disposal of solid wastes, except where a failure to
obtain such permits, licenses and approvals would not result in a Material
Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Insurance. The Property of the Borrower and its Subsidiaries is
insured with reputable insurance companies not Affiliates of the Borrower, in
such amounts, with such deductibles and covering such risks as are commercially
reasonable.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within ninety (90) days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public accountants
acceptable to the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries, including a
balance sheet as of the end of such period, related statements of income,
46
shareholders' equity and cash flows, accompanied by a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within forty-five (45) days after the close of the first three (3)
quarterly periods of each of its fiscal years, for itself and its Subsidiaries,
a consolidated unaudited balance sheet as at the close of each such period and
consolidated statements of income, shareholders' equity and cash flows for the
period from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer, chief accounting officer or treasurer.
(iii) Together with the financial statements required under Sections 6.1(i)
and (ii), a compliance certificate in substantially the form of Exhibit B signed
by its chief financial officer, chief accounting officer or treasurer showing
the calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
(iv) As soon as available, but in any event within sixty (60) days after the
beginning of each fiscal year of the Borrower, a copy of the projected
consolidated and consolidating balance sheet, income statement and cash flow
statement of the Borrower for such fiscal year.
(v) As soon as practicable after receipt thereof by the Borrower but in any
event within 270 days after the close of each plan year for each Plan, a
statement of any Unfunded Liabilities of such Plan, certified as correct by an
actuary enrolled under ERISA.
(vi) As soon as possible and in any event within ten (10) days after the
Borrower knows that any Reportable Event has occurred with respect to any Plan,
or any material unfunded liability has arisen with respect to any Foreign
Pension Plan, a statement, signed by the chief financial officer or treasurer of
the Borrower, describing said Reportable Event or material unfunded liability
and the action which the Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within ten (10) days after
receipt by the Borrower, a copy of (a) any notice or claim to the effect that
the Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its Subsidiaries, or any other
47
Person of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower or any of its
Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements so
furnished.
(ix) Promptly upon the filing thereof, copies of all registration statements
or other regular reports not otherwise provided pursuant to this Section 6.1
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(x) Such other information (including non-financial information) as any
Agent or Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Credit Extensions for general corporate purposes,
including for working capital, refinancing the Indebtedness under the Existing
Credit Agreement, dividends, stock repurchases and Permitted Acquisitions. The
Borrower shall use the proceeds of Credit Extensions in compliance with all
applicable legal and regulatory requirements and any such use shall not result
in a violation of any such requirements, including, without limitation,
Regulations T, U and X, the Securities Act of 1933 and the Securities Exchange
Act of 1934 and the regulations promulgated thereunder.
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and only
in lines of business similar or related to lines of business conducted by the
Borrower or its Subsidiaries as of the Closing Date, and, except as otherwise
permitted by Section 6.13, do all things necessary to remain duly incorporated
or organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a corporation, partnership or limited liability
company in its jurisdiction of incorporation or organization, as the case may
be, and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted; provided that any Subsidiary
may liquidate or dissolve if (i) the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and (ii)
such liquidation or dissolution is not materially disadvantageous to the
Lenders.
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6.5. Taxes. The Borrower will, and will cause each Subsidiary to, file on a
timely basis complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with reputable insurance companies insurance on their Property in such
amounts and covering such risks as is commercially reasonable, and the Borrower
will furnish to any Lender upon request full information as to the insurance
carried.
6.7. Compliance with Laws. The Borrower will, and will cause each Subsidiary
to, comply in all material respects with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary in its commercially reasonable judgement
to maintain, preserve, protect and keep its Property in good repair, working
order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times.
6.9. Inspection; Keeping of Books and Records. The Borrower will, and will
cause each Subsidiary to, permit the Agents and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
any Lender may designate. The Borrower shall keep and maintain, and cause each
of its Subsidiaries to keep and maintain, in all material respects, proper books
of record and account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in relation to their
respective businesses and activities. If a Default has occurred and is
continuing, the Borrower, upon the Administrative Agent's request, shall turn
over copies of any such records to the Administrative Agent or its
representatives.
6.10. Addition of Guarantors. As promptly as possible but in any event within
thirty (30) days after any Domestic Subsidiary becomes a Subsidiary of the
Borrower, the Borrower shall cause each such Domestic Subsidiary to deliver to
the Administrative Agent a duly executed supplement to the Guaranty pursuant to
which such Subsidiary agrees to be bound by the terms and provisions of the
Guaranty.
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6.11. Dividends and Distributions. The Borrower will not, nor will it permit
any of its Subsidiaries to, declare or pay any dividends on its capital stock
(other than dividends payable in its own capital stock), make any distributions
to any of its equity owners, redeem, repurchase or otherwise acquire or retire
any of its capital stock or other equity interests at any time outstanding,
except that (i) any Subsidiary may, at any time, declare and pay dividends or
make distributions to the Borrower or to a Wholly-Owned Subsidiary of the
Borrower and (ii) the Borrower may declare and pay dividends on its capital
stock in an aggregate amount not to exceed $10,000,000 during any fiscal year
and may repurchase its capital stock, provided, in each case, that no Default or
Unmatured Default shall exist before or after giving effect to such dividends or
repurchase or be created as a result thereof.
6.12. Capital Expenditures. The Borrower will not, nor will it permit any
Subsidiary to, expend in excess of an aggregate amount of $100,000,000 (the
"Base Amount") for Capital Expenditures during any fiscal year, commencing with
the fiscal year ending December 30, 2001; provided that, if the aggregate amount
of Capital Expenditures during any such fiscal year is less than the Base Amount
(the difference being the "Shortfall Amount"), then the permitted amount of
Capital Expenditures during the immediately succeeding fiscal year shall be an
amount equal to the Base Amount plus the Shortfall Amount.
6.13. Merger. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that, if after giving
effect to any such merger or consolidation no Default or Unmatured Default would
exist, a Subsidiary may merge or consolidate (i) into the Borrower or a
Wholly-Owned Subsidiary such that the Borrower or such Wholly-Owned Subsidiary
is the surviving entity, provided that in any merger or consolidation involving
a Domestic Subsidiary and a Foreign Subsidiary, the Domestic Subsidiary shall be
the surviving entity, or (ii) in connection with a Permitted Acquisition.
6.14. Sale of Assets.The Borrower will not, nor will it permit any Subsidiary
to, lease, sell, transfer or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory and obsolete or excess assets in the ordinary course
of business.
(ii) Sales, leases and transfers of Property (a) from the Borrower to any
Guarantor, and (b) from any Subsidiary of the Borrower to the Borrower or any
Guarantor.
(iii) Other sales, assignments, transfers, leases, conveyances or other
dispositions of its Property, provided that (a) such disposition is for
consideration consisting of cash or a combination of cash and notes, the
principal amount of which notes shall not exceed the greater of $5,000,000 and
25% of the total consideration, (b) such disposition is for not less than fair
market value (as determined in good faith by the Borrower's board of directors
50
if the total consideration for such disposition is equal to or greater than
$20,000,000), (c) after giving effect to such disposition, no Default or
Unmatured Default shall exist, and (d) such Property, together with all other
Property of the Borrower and its Subsidiaries previously leased, sold or
disposed of (other than inventory and obsolete or excess assets in the ordinary
course of business) calculated at book value (i) during the immediately
preceding twelve-month period, represents the disposition of not greater than
10% of the Borrower's Consolidated Total Assets at the end of the fiscal year
immediately preceding that in which such transaction is proposed to be entered
into, and (ii) during the period from the Closing Date to the date of such
proposed transaction, represents the disposition of not greater than 20% of the
Borrower's Consolidated Total Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered into.
6.15. Investments and Acquisitions. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including, without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Acquisition, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in existence
on the date hereof and described in Schedule 6.15.
(iii) Investments by any Subsidiary in the Borrower or any Guarantor, and
Investments by any Subsidiary that is not a Guarantor in any other Subsidiary
that is not a Guarantor.
(iv) Investments resulting from the transfers permitted by Section
6.14(iii).
(v) Investments resulting from Financial Contracts entered into in the
ordinary course of business and which do not violate the terms of Section 6.18.
(vi) Acquisitions meeting the following requirements or otherwise approved
by the Required Lenders (each such Acquisition constituting a "Permitted
Acquisition"):
(a) as of the date of the consummation of such Acquisition, no Default
or Unmatured Default shall have occurred and be continuing or would
result from such Acquisition, and the representation and warranty
contained in Section 5.10 shall be true both before and after giving
effect to such Acquisition;
(b) such Acquisition is consummated on a non-hostile basis pursuant to
a negotiated acquisition agreement approved by the board of directors
or other applicable governing body of the seller or entity to be
51
acquired, and no material challenge to such Acquisition (excluding the
exercise of appraisal rights) shall be pending or threatened by any
shareholder or director of the seller or entity to be acquired;
(c) the business to be acquired in such Acquisition is similar or
related to one or more of the lines of business in which the Borrower
and its Subsidiaries are engaged on the Closing Date;
(d) as of the date of the consummation of such Acquisition, all
material approvals required in connection therewith shall have been
obtained;
(e) during any fiscal year, the aggregate Purchase Price paid in
connection with Acquisitions shall not exceed $200,000,000, and the
aggregate amount thereof paid in cash shall not exceed $100,000,000;
and
(f) in the case of any Permitted Acquisition having a Purchase Price
(including the value of treasury stock of the Borrower repurchased
prior to the Closing Date) greater than $50,000,000, not less than ten
(10) days prior to the consummation of such Permitted Acquisition, the
Borrower shall have delivered to the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent, a pro
forma consolidated balance sheet, income statement and cash flow
statement of the Borrower and its Subsidiaries, including one-time
adjustments agreed to by the Administrative Agent (the "Acquisition Pro
Forma"), based on the Borrower's most recent financial statements
delivered pursuant to Section 6.1(i) and using historical financial
statements for the acquired entity or assets provided by the seller(s),
which shall be complete and shall fairly present, in all material
respects, the financial condition and results of operations and cash
flows of the Borrower and its Subsidiaries in accordance with Agreement
Accounting Principles, but taking into account such Permitted
Acquisition and the funding of all Credit Extensions in connection
therewith, and such Acquisition Pro Forma shall reflect that, on a pro
forma basis, the Borrower would have been in compliance with the
financial covenants set forth in Section 6.21 for the four fiscal
quarter period reflected in the compliance certificate most recently
delivered to the Administrative Agent pursuant to Section 6.1(iii)
prior to the consummation of such Permitted Acquisition (giving effect
to such Permitted Acquisition and all Credit Extensions funded in
connection therewith as if made on the first day of such period).
(vii) Investments by the Borrower or any Guarantor in any Subsidiary that is
not a Guarantor, Investments in joint ventures, Investments in franchisees of
the Borrower or any Subsidiary and other Investments in any other Persons, loans
or advances made by the Borrower or any of its Subsidiaries to employees and
52
officers of the Borrower or of any of the Borrower's Subsidiaries or to any
other Persons, provided that all of the foregoing shall not exceed the amount of
$25,000,000 in the aggregate at any one time outstanding.
6.16. Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law (and exactly similar Liens imposed by contract in
the same jurisdiction where any such Lien is imposed by law), such as carriers',
warehousemen's, landlords' and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations not more
than sixty (60) days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or its Subsidiaries.
(v) Liens arising out of deposits to secure the performance of bids, trade
contracts (other than for borrowed money), surety and appeal bonds, performance
bonds and other similar obligations incurred in the ordinary course of business.
(vi) Liens existing on the date hereof and described on Schedule 6.16 and
renewals and continuations of such Liens so long as the Liens so renewed or
continued are limited to the Property which was subject to the Lien so renewed
or continued and do not exceed the principal amount of obligations so secured at
the time of such renewal or extension.
(vii) Liens, if any, securing the Loans and other Obligations hereunder.
53
(viii) Other Liens not reflected in clauses (i)-(vii) above securing
Indebtedness or other obligations in the aggregate at any time not in excess of
an amount, at any time the same is to be determined, equal to twenty percent
(20%) of Consolidated Net Worth as determined at the end of the then most
recently completed fiscal quarter of the Borrower.
6.17. Transactions with Affiliates. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except (i) transactions with the Borrower
or any Guarantor, (ii) transactions in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction or (iii) transactions disclosed in the
Borrower's Form 10K for fiscal year 2000 and the proxy statement filed with the
Securities and Exchange Commission for the annual meeting of the Borrower's
shareholders held on May 10, 2001.
6.18. Financial Contracts. The Borrower shall not, and shall not permit any
of its consolidated Subsidiaries to, enter into any Financial Contract, other
than Financial Contracts pursuant to which the Borrower or such Subsidiary
xxxxxx its actual or anticipated interest rate, foreign currency or commodity
exposure existing or anticipated at the time thereof.
6.19. ERISA. Except to the extent that such act or failure to act would not
result singly, or in the aggregate, after taking into account all other such
acts or failures to act, in a liability which might be reasonably expected
materially to adversely affect the ability of the Borrower and the members of
the Controlled Group, taken as a whole, to carry on business substantially as
now being or heretofore conducted, or to materially adversely affect the
financial condition of the Borrower and the members of the Controlled Group
taken as a whole, the Borrower shall not (i) engage, or permit any Controlled
Group member to engage, in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the
United States Department of Labor; (ii) permit to exist any accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Code); (iii)
fail, or permit any member of the Controlled Group to fail, to pay timely
required contributions or annual installments due with respect to any waived
funding deficiency of any Plan; (iv) terminate, or permit any member of the
Controlled Group to terminate, any Plan which would result in any liability of
the Borrower or any member of the Controlled Group under Title IV of ERISA; (v)
fail, or permit any member of the Controlled Group to fail, to make any
contribution or payment to any Multiemployer Plan which the Borrower or any
member of the Controlled Group may be required to make under any agreement
relating to such Multiemployer Plan, or any law pertaining thereto; (vi) fail,
or permit any member of the Controlled Group to fail, to pay any required
54
installment or any other payment required under Section 412 of the Code on or
before the due date for such installment or other payment; or (vii) amend, or
permit any member of the Controlled Group to amend, a Plan resulting in an
increase in current liability for the plan year such that the Borrower or any
member of the Controlled Group is required to provide security to such Plan
under Section 401(a)(29) of the Code.
6.20. Environmental Compliance. The Borrower will not become, or permit any
Subsidiary to become, subject to any liabilities or costs which might be
reasonably expected materially to adversely affect the ability of the Borrower
and its Subsidiaries, taken as a whole, to carry on business substantially as
now being or heretofore conducted, or to materially adversely affect the
financial condition of the Borrower and its Subsidiaries taken as a whole,
arising out of or related to (i) the release or threatened release at any
location of any contaminant into the environment, or any remedial action in
response thereto or (ii) any violation of any environmental, health or safety
requirements of law (including, without limitation, any Environmental Laws).
6.21. Financial Covenants.
6.21.1. Maximum Leverage Ratio. As of the last day of each fiscal quarter, the
Borrower shall not permit the ratio (the "Leverage Ratio") of (i) Consolidated
Funded Indebtedness to (ii) EBITDA of the Borrower and its Subsidiaries, as at
the end of and for the period of four consecutive fiscal quarters ending on such
day, to be greater than (i) 2.00 to 1.00.
6.21.2. Minimum Fixed Charge Coverage Ratio. As of the last day of each fiscal
quarter, the Borrower shall not permit the ratio of (i) EBITR to (ii) the sum of
(a) Consolidated Interest Expense plus (b) Consolidated Rentals, in each case
for the period of four consecutive fiscal quarters ending on such day, to be
less than 4.00 to 1.00.
6.21.3. Maximum Ratio of Indebtedness to Total Capitalization. The Borrower
shall not permit the ratio of (i) Consolidated Indebtedness to (ii) Consolidated
Total Capitalization at any time to be greater than 0.50 to 1.00.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Breach of Representations or Warranties. Any representation or warranty
made or deemed made by or on behalf of the Borrower or any of its Subsidiaries
to the Lenders, any LC Issuer or the Agents under or in connection with this
Agreement, any Credit Extension, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be false in any
material respect on the date as of which made.
7.2. Failure to Make Payments When Due. Nonpayment of (i) principal of any
Loan when due, (ii) any Reimbursement Obligation within one (1) Business Day
after the same becomes due, or (iii) interest upon any Loan or Reimbursement
Obligation or any Commitment Fee, LC Fee or other Obligations under any of the
55
Loan Documents within five (5) Business Days after such interest, fee or other
Obligation becomes due.
7.3. Breach of Covenants. (i) The breach by the Borrower of any of the terms
or provisions of Section 6.3 or Sections 6.10 through 6.21; or (ii) the breach
by the Borrower of any of the other terms or provisions of Article VI which is
not remedied within five (5) Business Days after the occurrence thereof.
7.4. Other Breaches. The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement or any other Loan Document which is not
remedied within thirty (30) days after the occurrence thereof.
56
7.5. Default as to Other Indebtedness.
(i) Failure of the Borrower or any of its Subsidiaries to pay when due any
Material Indebtedness; or
(ii) Any Material Indebtedness of the Borrower or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid or repurchased
(other than by a regularly scheduled payment) prior to the stated maturity
thereof; or
(iii)The Borrower or any of its Subsidiaries shall fail to pay, or shall
admit in writing its inability to pay, its debts generally as they become due;
or
(iv) The default by the Borrower or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any Material Indebtedness
Agreement, or any other event shall occur or condition exist, the effect of
which default, event or condition is to cause, or to permit the holder(s) of
such Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement to cause such Material Indebtedness to become due prior to its stated
maturity or any commitment to lend under any Material Indebtedness Agreement to
be terminated prior to its stated expiration date.
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc. The Borrower or any
of its Subsidiaries shall (i) have an order for relief entered with respect to
it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6, or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc. Without the
application, approval or consent of the Borrower or any of its Subsidiaries, a
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any of its Subsidiaries or any Substantial Portion of its
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Borrower or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of thirty (30) consecutive days.
7.8. Custody or Control of Property. Any court, government or governmental
agency shall condemn, seize or otherwise appropriate, or take custody or control
57
of, all or any portion of the Property of the Borrower and its Subsidiaries
which, when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion.
7.9. Judgments. The Borrower or any of its Subsidiaries shall fail within
thirty (30) days to pay, bond or otherwise discharge one or more (i) judgments
or orders for the payment of money (except to the extent covered by independent
third-party insurance as to which the insurer has not disclaimed coverage) in
excess of $20,000,000 (or the equivalent amount thereof in currencies other than
U.S. dollars) in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not stayed
on appeal or otherwise being appropriately contested in good faith.
7.10. Unfunded Liabilities. The sum of (a) the Unfunded Liabilities of all
Plans and (b) the present value of the aggregate unfunded liabilities to provide
the accrued benefits under all Foreign Pension Plans exceeds in the aggregate an
amount equal to the sum of (i) five percent (5%) of the value (as of any date of
determination) of all Plan assets allocable to Plan benefits guaranteed by ERISA
and (ii) five percent (5%) of the fair market value of the assets held in trust
or other funding vehicles for accrued benefits under all Foreign Pension Plans,
or any Reportable Event shall occur in connection with any Plan.
7.11. Other ERISA Liabilities. The Borrower or any other member of the
Controlled Group has incurred withdrawal liability or become obligated to make
contributions to a Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Borrower or
any other member of the Controlled Group, could reasonably be expected to have a
Material Adverse Effect.
7.12. Environmental Matters. The Borrower or any of its Subsidiaries shall
(i) be the subject of any proceeding or investigation pertaining to the release
by the Borrower, any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or
clause (ii), could reasonably be expected to have a Material Adverse Effect.
7.13. Change in Control. Any Change in Control shall occur.
7.14. The Guaranty. The Guaranty shall for any reason fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of Guaranty, or any Guarantor shall
deny that it has any further liability under the Guaranty or shall give notice
to such effect.
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7.15. The Loan Documents. Any Loan Document shall for any reason fail to
remain in full force or effect or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any Loan Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. Facility LC Collateral Account.
(i) If any Default described in Section 7.6 or 7.7 occurs with respect to
the Borrower, the obligations of the Lenders to make Loans hereunder and the
obligation and power of the LC Issuers to issue Facility LCs shall automatically
terminate and the Obligations shall immediately become due and payable without
any election or action on the part of the Administrative Agent, any LC Issuer or
any Lender, and the Borrower will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of (x)
the amount of LC Obligations at such time plus the aggregate amount of all fees
and expenses that may accrue or arise until all Facility LCs have expired or
been terminated, less (y) the amount on deposit in the Facility LC Collateral
Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs, the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders)
may (a) terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation and power of the LC Issuers to issue Facility LCs,
or declare the Obligations to be due and payable, or both, whereupon such
obligations and power shall immediately terminate or be suspended and/or the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (b) upon notice to the Borrower and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent
the Collateral Shortfall Amount, which funds shall be deposited in the Facility
LC Collateral Account.
(ii) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time while any Default is
continuing and funds are deposited in the Facility LC Collateral Account, apply
such funds to the payment of the Obligations and any other amounts as shall from
59
time to time have become due and payable by the Borrower to the Lenders or the
LC Issuers under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower nor
any Person claiming on behalf of or through the Borrower shall have any right to
withdraw any of the funds held in the Facility LC Collateral Account. After all
of the Obligations have been indefeasibly paid in full and the Aggregate
Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Administrative Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within thirty (30) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans and
the obligation and power of the LC Issuers to issue Facility LCs hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Section 8.2, the Required
Lenders (or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or thereunder
or waiving any Default hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Extend the final maturity of any Loan, or extend the expiry date of any
Facility LC to a date after the Facility Termination Date or forgive all or any
portion of the principal amount thereof or any Reimbursement Obligation related
thereto, or reduce the rate or extend the time of payment of interest or fees
thereon or Reimbursement Obligations related thereto (other than a waiver of the
application of the default rate of interest pursuant to Section 2.12 hereof).
(ii) Change the percentage specified in the definition of Required Lenders
or any other percentage of Lenders specified to be the applicable percentage in
this Agreement to act on specified matters or otherwise amend the definitions of
"Required Lenders" or "Pro Rata Share".
(iii) Extend the Facility Termination Date, or increase the amount or
otherwise extend the term of the Commitment of any Lender hereunder or the
commitment to issue Facility LCs.
(iv) Permit the Borrower to assign its rights or obligations under this
Agreement.
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(v) Other than pursuant to a transaction permitted by the terms of this
Agreement, release any guarantor of the Obligations or all or substantially all
of the collateral, if any, securing the Obligations.
(vi) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to any Agent shall be
effective without the written consent of such Agent. No amendment of any
provision of this Agreement relating to any LC Issuer shall be effective without
the written consent of such LC Issuer. No amendment of any provision of this
Agreement relating to the Swing Line Lender or any Swing Line Loans shall be
effective without the written consent of the Swing Line Lender. The
Administrative Agent may waive payment of the fee required under Section 12.3.2
without obtaining the consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC
Issuers or Agents to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or Unmatured Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by, or by the Administrative Agent with the consent of, the requisite
number of Lenders required pursuant to Section 8.2, and then only to the extent
in such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available to
the Agents, the LC Issuers and the Lenders until all of the Obligations have
been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, neither any LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
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9.3. Headings. Section headings in the Loan Documents are for convenience of
reference only and shall not govern the interpretation of any of the provisions
of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agents, the LC Issuers and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Agents, the LC Issuers and the Lenders relating to the subject matter thereof
other than the fee letter described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agents are authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10, 10.11, and 10.13 and each Person entitled to
indemnification under Sections 2.21.9 and 9.6(ii) shall enjoy the benefits of
such provisions, in each case to the extent specifically set forth therein and
shall have the right to enforce such provisions on its own behalf and in its own
name to the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification.
(i) The Borrower shall reimburse the Administrative Agent and the Arranger
for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' and paralegals' fees, time charges and expenses of
attorneys and paralegals for the Administrative Agent and Arranger, which
attorneys and paralegals may (if outside counsel is not used) be employees of
the Administrative Agent or the Arranger, and expenses of and fees for other
advisors and professionals engaged by the Administrative Agent or the Arranger)
paid or incurred by the Administrative Agent or the Arranger in connection with
the investigation, preparation, negotiation, documentation, execution, delivery,
syndication, distribution (including, without limitation, via the internet),
review, amendment, modification, administration and collection of the Loan
Documents. The Borrower also agrees to reimburse the Agents, the Arranger, the
LC Issuers and the Lenders for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' and paralegals' fees,
time charges and expenses of attorneys and paralegals for the Agents, the
Arranger, the LC Issuers and the Lenders, which attorneys and paralegals (if
outside counsel is not used) may be employees of the Agents, the Arranger, the
LC Issuers or the Lenders) paid or incurred by the Agents, the Arranger, any LC
Issuers or any Lender in connection with the collection and enforcement of the
Loan Documents.
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(ii) The Borrower hereby further agrees to indemnify the Agents, the
Arranger, the LC Issuers, each Lender, their respective affiliates, and each of
their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor whether or not the
Agents, the Arranger, the LC Issuers, any Lender or any affiliate of any of the
foregoing is a party thereto, and all reasonable attorneys' and paralegals'
fees, time charges and expenses of attorneys and paralegals of the party seeking
indemnification, which attorneys and paralegals may (if outside counsel is not
used) be employees of such party seeking indemnification) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder, except to the extent that they are determined in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders, to the extent that the Administrative Agent deems necessary.
9.8. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles. If
any changes in generally accepted accounting principles are hereafter required
or permitted and are adopted by the Borrower or any of its Subsidiaries with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the financial
covenants, tests, restrictions or standards herein or in the related definitions
or terms used therein ("Accounting Changes"), the parties hereto agree, at the
Borrower's request, to enter into negotiations, in good faith, in order to amend
such provisions in a credit neutral manner so as to reflect equitably such
changes with the desired result that the criteria for evaluating the Borrower's
and its Subsidiaries' financial condition shall be the same after such changes
as if such changes had not been made; provided, however, until such provisions
are amended in a manner reasonably satisfactory to the Administrative Agent and
the Required Lenders, no Accounting Change shall be given effect in such
calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles shall mean generally accepted accounting principles as of the date of
such amendment.
9.9. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
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affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the
one hand and the Lenders, the LC Issuers and the Agents on the other hand shall
be solely that of borrower and lender. None of the Agents, the Arranger, the LC
Issuers or any Lender shall have any fiduciary responsibilities to the Borrower.
None of the Agents, the Arranger, the LC Issuers or any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations. The Borrower
agrees that none of the Agents, the Arranger, the LC Issuers or any Lender shall
have liability to the Borrower (whether sounding in tort, contract or otherwise)
for losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final, non-appealable
judgment by a court of competent jurisdiction that such losses resulted from the
gross negligence or willful misconduct of the party from which recovery is
sought. None of the Agents, the Arranger, the LC Issuers or any Lender shall
have any liability with respect to, and the Borrower hereby waives, releases and
agrees not to xxx for, any special, indirect, consequential or punitive damages
suffered by the Borrower in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential information
which it may receive from the Borrower pursuant to this Agreement in confidence,
except for disclosure (i) to its Affiliates and to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee or prospective
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such Lender is a party,
(vi) to such Lender's direct or indirect contractual counterparties in swap
agreements or to legal counsel, accountants and other professional advisors to
such counterparties, and (vii) permitted by Section 12.4.
9.12. Lenders Not Utilizing Plan Assets. Each of the Lenders and LC Issuers
hereby represents to parties hereto that none of the consideration used by any
of the Lenders, any LC Issuer or Designated Lenders to make its Credit
Extensions constitutes for any purpose of ERISA or Section 4975 of the Code
assets of any "plan" as defined in Section 3(3) of ERISA or Section 4975 of the
Code and the rights and interests of each of the Lenders, LC Issuers and
Designated Lenders in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not relying on or
looking to any margin stock (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for herein.
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9.14. Disclosure. The Borrower and each Lender hereby acknowledge and agree
that Bank One and/or its respective Affiliates and certain of the other Lenders
and/or their respective Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.
9.15. Subordination of Intercompany Indebtedness. The Borrower agrees that
any and all claims of the Borrower against any Guarantor with respect to any
"Intercompany Indebtedness" (as hereinafter defined) shall be subordinate and
subject in right of payment to the prior payment, in full and in cash, of all
obligations of such Guarantor pursuant to the Guaranty. Notwithstanding any
right of the Borrower to ask, demand, xxx for, take or receive any payment from
any Guarantor, all rights, liens and security interests of the Borrower, whether
now or hereafter arising and howsoever existing, in any assets of any Guarantor
(whether constituting part of any collateral given to any Agent or any Lender to
secure payment of all or any part of the obligations of such Guarantor pursuant
to the Guaranty or otherwise) shall be and are subordinated to the rights of the
Agents, the LC Issuers and the Lenders in those assets. The Borrower shall not
have any right to possession of any such asset or to foreclose upon any such
asset, whether by judicial action or otherwise, unless and until all of the
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document among the Borrower and the Agents, the LC Issuers and the Lenders have
been terminated. If all or any part of the assets of any Guarantor, or the
proceeds thereof, are subject to any distribution, division or application to
the creditors of any Guarantor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of any Guarantor is dissolved or if substantially
all of the assets of any Guarantor are sold, then, and in any such event (such
events being herein referred to as an "Insolvency Event"), any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
indebtedness of any Guarantor to the Borrower ("Intercompany Indebtedness")
shall be paid or delivered directly to the Administrative Agent for application
on any of the Obligations, due or to become due, until such Obligations (other
than contingent indemnity obligations) shall have first been fully paid and
satisfied (in cash). Should any payment, distribution, security or instrument or
proceeds thereof be received by the Borrower upon or with respect to the
Intercompany Indebtedness after any Insolvency Event and prior to the
satisfaction of all of the Obligations (other than contingent indemnity
obligations) and the termination of all financing arrangements pursuant to any
Loan Document among the Borrower and the Agents, the LC Issuers and the Lenders,
the Borrower shall receive and hold the same in trust, as trustee, for the
benefit of the Agents, the LC Issuers and the Lenders and shall forthwith
deliver the same to the Administrative Agent, for the benefit of the Agents, the
LC Issuers and the Lenders, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), for application to
any of the Obligations, due or not due, and, until so delivered, the same shall
be held in trust by the Borrower as the property of the Agents, the LC Issuers
and the Lenders. If the Borrower fails to make any such endorsement or
assignment to the Administrative Agent, the Administrative Agent or any of its
officers or employees is irrevocably authorized to make the same. The Borrower
agrees that until the Obligations (other than the contingent indemnity
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obligations) have been paid in full (in cash) and satisfied and all financing
arrangements pursuant to any Loan Document among the Borrower and the Agents,
the LC Issuers and the Lenders have been terminated, the Borrower will not
assign or transfer to any Person (other than the Administrative Agent) any claim
the Borrower has or may have against any Guarantor.
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship. Bank One,NA is hereby appointed by
each of the Lenders as the Administrative Agent hereunder and under each other
Loan Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. Each of
SunTrust Bank and U.S. Bank National Association is hereby appointed by each of
the Lenders as a Syndication Agent hereunder and under each other Loan Document,
and each of the Lenders irrevocably authorizes each Syndication Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. Each of Bank of
America, N.A. and Fleet National Bank is hereby appointed by each of the Lenders
as a Documentation Agent hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes each Documentation Agent to act as the
contractual representatives of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. Each Agent agrees to act as
such contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Administrative Agent",
"Syndication Agent" or "Documentation Agent", it is expressly understood and
agreed that no Agent shall have any fiduciary responsibilities to any Lender by
reason of this Agreement or any other Loan Document and that each Agent is
merely acting as the contractual representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In their capacities as the Lenders' contractual representative, the
Agents (i) do not hereby assume any fiduciary duties to any of the Lenders, (ii)
are "representatives" of the Lenders within the meaning of the term "secured
party" as defined in the Illinois Uniform Commercial Code and (iii) are acting
as independent contractors, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against any Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
10.2. Powers. Each Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to such Agent by the terms of each
thereof, together, in the Administrative Agent's case, with such powers as are
reasonably incidental thereto. The Agents shall have no implied duties or
fiduciary duties to the Lenders or any obligation to the Lenders to take any
action thereunder, except any action specifically provided by the Loan Documents
to be taken by the applicable Agents.
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10.3. General Immunity. No Agent or any of its respective directors, officers
,agents or employees shall be liable to the Borrower, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final, non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. No Agent or any of its
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agents or any of them;
(d) the existence or possible existence of any Default or Unmatured Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower's or any
such guarantor's respective Subsidiaries. The Agents shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Borrower to any Agent at such time, but is voluntarily furnished by the Borrower
to such Agent (either in its capacity as an Agent or in its individual
capacity).
10.5. Action on Instructions of Lenders. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Agents shall be under no duty to take
any discretionary action permitted to be taken by any of them pursuant to the
provisions of this Agreement or any other Loan Document unless they shall be
requested in writing to do so by the Required Lenders (or all of the Lenders in
the event that and to the extent that this Agreement expressly requires such).
Each Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
10.6. Employment of Agents and Counsel. Any Agent may execute any of its
respective duties as an Agent hereunder and under any other Loan Document by or
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through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning the contractual arrangement between such Agent and the
Lenders and all matters pertaining to such Agent's duties hereunder and under
any other Loan Document.
10.7. Reliance on Documents; Counsel. Each Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document reasonably believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and, in respect
to legal matters, upon the opinion of counsel selected by such Agent, which
counsel may be employees of such Agent.
10.8. Agents' Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify each Agent ratably in proportion to the Lenders' Pro
Rata Shares (i) for any amounts not reimbursed by the Borrower for which such
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by such Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, but not limited to, any expenses
incurred by such Agent in connection with any dispute between such Agent and any
Lender or between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against such Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against such Agent in
connection with any dispute between such Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final, non-appealable judgment in a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Agent and (ii)
any indemnification required pursuant to Section 3.5(vii) shall, notwithstanding
the provisions of this Section 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9. Notice of Default. No Agent shall be deemed to have knowledge or notice
of the occurrence of any Default or Unmatured Default hereunder unless such
Agent has received written notice from a Lender or LC Issuer or the Borrower
referring to this Agreement describing such Default or Unmatured Default and
stating that such notice is a "notice of default". In the event that any Agent
receives such a notice, such Agent shall give prompt notice thereof to the
Lenders and the LC Issuers.
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10.10. Rights as a Xxxxxx.Xx the event any Agent is a Lender, such Agent shall
have the same rights and powers hereunder and under any other Loan Document with
respect to its Commitment and its Credit Extensions as any Lender and may
exercise the same as though it were not an Agent, and the term "Lender" or
"Lenders" shall, at any time when any Agent is a Lender, unless the context
otherwise indicates, include such Agent in its individual capacity. Each Agent
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent, the Arranger or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.12. Successor Agents. Any Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five (45) days after the retiring Agent gives notice of its
intention to resign. Any Agent may be removed at any time with or without cause
by written notice received by such Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right (with, so long
as no Default has occurred or is continuing at such time, the approval of the
Borrower) to appoint, on behalf of the Borrower and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty (30) days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. Notwithstanding the previous
sentence, any Agent may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as its
successor Agent hereunder. If an Agent has resigned or been removed and no
successor Agent has been appointed, the Lenders may perform all the duties of
such Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000. Upon the acceptance of any appointment as an Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the resignation or removal
of an Agent, the resigning or removed Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Agent, the provisions of this Article X
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shall continue in effect for the benefit of such Agent in respect of any actions
taken or omitted to be taken by it while it was acting as an Agent hereunder and
under the other Loan Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns its duties
and obligations to an Affiliate pursuant to this Section 10.12, then (a) the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate
or other analogous rate of the new Administrative Agent and (b) the references
to "Bank One" in the definitions of "Eurodollar Base Rate" and "Prime Rate" and
in the last sentence of Section 2.13 shall be deemed to be a reference to such
successor Administrative Agent in its individual capacity.
10.13. Agent and Arranger Fees. The Borrower agrees to pay to the
Administrative Agent and the Arranger, for their respective accounts, the fees
agreed to by the Borrower, the Administrative Agent and the Arranger pursuant to
that certain letter agreement dated August 29, 2001 or as otherwise agreed from
time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that any
Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the applicable Agent is entitled under Articles
IX and X.
10.15. Release of Guarantors. Upon the liquidation or dissolution of any
Guarantor, or sale of the Capital Stock of any Guarantor, in each case which is
permitted pursuant to the terms of any Loan Document or consented to in writing
by the Required Lenders or all of the Lenders, as applicable, and upon at least
five (5) Business Days' prior written request by the Borrower, the
Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
applicable Guarantor from its obligations under the Guaranty; provided, however,
that (i) the Administrative Agent shall not be required to execute any such
document on terms which, in the Administrative Agent's opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Guarantor without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations, any other Guarantor's obligations under the Guaranty,
or, if applicable, any obligations of the Borrower or any Subsidiary in respect
of the proceeds of any such sale retained by the Borrower or any Subsidiary.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
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evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Outstanding Credit Exposure held by
the other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns; Designated Lenders.
12.1.1. Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower, the Agents, the
LC Issuers and the Lenders and their respective successors and assigns, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the consent of all of the Lenders,
and any such assignment in violation of this Section 12.1.1 shall be null and
void, and (ii) any assignment by any Lender must be made in compliance with
Section 12.3. The parties to this Agreement acknowledge that clause (ii) of this
Section 12.1.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
71
Loan Documents. Any request, authority or consent of any Person, which at the
time of making such request or giving such authority or consent is the owner of
the rights to any Loan (whether or not a Note has been issued in evidence
thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan.
12.1.2. Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section 12.1.2,
any Lender may from time to time elect to designate an Eligible Designee to
provide all or any part of the Revolving Loans to be made by such Lender
pursuant to this Agreement; provided that the designation of an Eligible
Designee by any Lender for purposes of this Section 12.1.2 shall be subject to
the approval of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed). Upon the execution by the parties to each
such designation of an agreement in the form of Exhibit G hereto (a "Designation
Agreement") and the acceptance thereof by the Administrative Agent, the Eligible
Designee shall become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Revolving Loans to be made by the
Designating Lender pursuant to the terms of this Agreement and the making of the
Revolving Loans or portion thereof shall satisfy the obligations of the
Designating Lender to the same extent, and as if, such Revolving Loan was made
by the Designating Lender. As to any Revolving Loan made by it, each Designated
Lender shall have all the rights which a Lender making such Revolving Loan would
have under this Agreement and otherwise; provided, (x) that all voting rights
under this Agreement shall be exercised solely by the Designating Lender, (y)
each Designating Lender shall remain solely responsible to the other parties
hereto for its obligations under this Agreement, including the obligations of a
Lender in respect of Revolving Loans made by its Designated Lender and (z) no
Designating Lender shall be entitled to reimbursement under Article III hereof
for any amount which would exceed the amount that would have been payable by the
Borrower to the Designating Lender from which the Designated Lender obtained any
interests hereunder. No additional Notes shall be required with respect to
Revolving Loans provided by a Designated Lender; provided, however, to the
extent any Designated Lender shall advance funds, the Designating Lender shall
be deemed to hold the Notes in its possession as an agent for such Designated
Lender to the extent of the Revolving Loan funded by such Designated Lender.
Such Designating Lender shall act as administrative agent for its Designated
Lender and give and receive notices and communications hereunder. Any payments
for the account of any Designated Lender shall be paid to its Designating Lender
as administrative agent for such Designated Lender and neither the Borrower nor
the Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may (1) with
notice to, but without the consent of the Borrower or the Administrative Agent,
assign all or portions of its interests in any Revolving Loans to its
Designating Lender or to any financial institution consented to by the
Administrative Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender and (2) subject to advising any such Person
72
that such information is to be treated as confidential in accordance with such
Person's customary practices for dealing with confidential, non-public
information, disclose on a confidential basis any non-public information
relating to its Revolving Loans to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity enhancement to such
Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not institute
against, or join any other Person in instituting against, any Designated Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law for one year and a day after the payment in full of all outstanding senior
indebtedness of any Designated Lender; provided that the Designating Lender for
each Designated Lender hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage and expense arising out of its
inability to institute any such proceeding against such Designated Lender. This
Section 12.1.2 shall survive the termination of this Agreement.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Outstanding Credit Exposure of such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Credit Extension or Commitment in which such
Participant has an interest which (i) extends the final maturity of any Loan or
any Facility LC beyond the Facility Termination Date or forgives all or a
portion of the principal amount thereof or interest or fees thereon, or reduces
the rate or extends the time of payment of interest or fees on any such Loan,
any Reimbursement Obligation or the related Commitment or (ii) extends the
Facility Termination Date, or (iii) releases any guarantor of the Obligations
(except as permitted hereby) or all or substantially all of the collateral, if
any, securing the Obligations.
73
12.2.3. Benefit of Certain Provisions.The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender. The Borrower
further agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 12.3, provided that (i)
a Participant shall not be entitled to receive any greater payment under Section
3.1, 3.2 or 3.5 than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for its own
account, unless the sale of such interest to such Participant is made with the
prior written consent of the Borrower, and (ii) any Participant organized under
the laws of any jurisdiction other than the United States of America or any
state thereof agrees to comply with the provisions of Section 3.5 to the same
extent as if it were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall evidenced by an
agreement be substantially in the form of Exhibit C or in such other form as may
be agreed to by the parties thereto (each such agreement, an "Assignment
Agreement"). The consent of the Borrower, the LC Issuers and the Administrative
Agent shall be required prior to an Assignment Agreement becoming effective with
respect to a Purchaser which is not a Lender, an Affiliate thereof or a
Designated Lender; provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be required. Such consent
shall not be unreasonably withheld or delayed. Each such assignment with respect
to a Purchaser which is not a Lender, an Affiliate thereof or a Designated
Lender shall (unless each of the Borrower and the Administrative Agent otherwise
consents) be in an amount not less than the lesser of (i) $5,000,000 and
integral multiples of $1,000,000 in excess thereof or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as at the date of such
assignment), or, if the Facility Termination Date has occurred, the remaining
amount of the assigning Lender's Outstanding Credit Exposure.
12.3.2. Effect; Effective Date. Upon (i)delivery to the Administrative Agent of
an Assignment Agreement, together with any consents required by Section 12.3.1,
and (ii) payment of a $3,000 fee to the Administrative Agent for processing such
assignment (unless such fee is waived by the Administrative Agent), such
assignment shall become effective on the effective date specified in such
assignment. The Assignment Agreement shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Outstanding Credit Exposure under the applicable
Assignment Agreement constitutes "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan Documents will
not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Outstanding Credit Exposure assigned
to such Purchaser. Upon the consummation of any assignment to a Purchaser
74
pursuant to this Section 12.3.2, the transferor Lender, the Administrative Agent
and the Borrower shall, if the transferor Lender or the Purchaser desires that
its Loans be evidenced by Notes, make appropriate arrangements so that new Notes
or, as appropriate, replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their respective Commitments (or,
if the Facility Termination Date has occurred, their respective Outstanding
Credit Exposure, as adjusted pursuant to such assignment.
12.3.3. The Register. Notwithstanding anything to the contrary in this
Agreement, the Borrower hereby designates the Administrative Agent, and the
Administrative Agent, hereby accepts such designation, to serve as the
Borrower's contractual representative solely for purposes of this Section
12.3.3. In this connection, the Administrative Agent shall maintain at its
address referred to in Section 13.1 a copy of each Assignment Agreement
delivered to and accepted by it pursuant to this Section 12.3.3 and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment of, principal amount of and interest on the Revolving Loans
owing to, each Lender from time to time and whether such Lender is an original
Lender or the assignee of another Lender pursuant to an assignment under this
Section 12.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Agents, the LC Issuers and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
12.4. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any reports or other information
delivered by the Borrower pursuant to Section 6.1; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
75
12.5. Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with respect to
borrowing notices, all notices, requests and other communications to any party
hereunder shall be in writing (including electronic transmission, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower, the Agents and any Lender party hereto as of the Closing
Date, at its respective address or facsimile number set forth on the signature
pages hereof or (y) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section; provided that
notices to the Administrative Agent under Article II shall not be effective
until received.
13.2. Change of Address. The Borrower and the Administrative Agent may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto. Any Lender may change its address for service of notice
upon it by a notice in writing to the Borrower and the Administrative Agent.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agents, the LC Issuers
and the Lenders and each party has notified the Agents by facsimile transmission
or telephone that it has taken such action.
76
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT
SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENTS, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENTS, ANY LC ISSUER OR ANY LENDER OR
ANY AFFILIATE OF THE AGENTS, ANY LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS OR THE
CITY IN WHICH THE PRINCIPAL OFFICE OF SUCH AGENT, LENDER OR AFFILIATE, AS THE
CASE MAY BE, IS LOCATED.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENTS, EACH LC ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
[Signature Pages Follow]
77
Signature Page to
3-Year Revolving Credit Agreement
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuers and the
Agents have executed this Agreement as of the date first above written.
XXXXXXXX'X INTERNATIONAL, INC., as the
Borrower
--------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
0000 X. 000xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy
in the case of notices of Default) to:
Attention: General Counsel
Fax: (000) 000-0000
and
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxx
Fax: (000) 000-0000
BANK ONE, NA (Main Office
Chicago), as the
Administrative Agent, as
Swing Line Lender, as LC
Issuer and as a Lender
--------------------------
Name: Xxxxx X. Xxxxx
Title: Director
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx_x_xxxxx@xxxxxxx.xxx
SUNTRUST BANK, as a Syndication Agent and
as a Lender
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
000 Xxxxxxxxx Xx. XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx.xxxxx@xxxxxxxx.xxx
U.S. BANK NATIONAL ASSOCIATION, as a
Syndication Agent and as a Lender
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
0000 Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.x.xxxxxxxx@xxxxxxx.xxx
BANK OF AMERICA, N.A., as a Documentation
Agent and as a Lender
--------------------------
Name: Xxx X. Xxxx
Title: Senior Vice President
Specialized Services
Bank of America Office Park
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: Xxxxxx.X.Xxxxx@XxxxxxXxxxxxx.xxx
FLEET NATIONAL BANK, as a Documentation
Agent and as a Lender
--------------------------
Name: Xxxx X. Xxx
Title: Vice President
Mail Code: XX XX 00000X
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx_x_xxx@xxxxx.xxx
THE CHASE MANHATTAN BANK, as a Lender
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
X.X. Xxxxxx Chase & Co.
000 Xxxxxx Xxxxxx, 0-XXXX-00
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.x.xxxxx@xxxxx.xxx
ROYAL BANK OF CANADA, as a Lender
--------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Senior Manager
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Loans Admin. (Karim Amr)
Phone: (000) 000-0000 or (000) 000-0000
Fax: (000) 000-0000 or (000) 000-0000
E-mail: xxxxx.xxx@xxxxxxxxx.xxx
With a copy to:
Xxxxx Xxx
Phone: (000) 000-0000
Fax: (000) 000-0000 or (000) 000-0000
UMB BANK, n.a., as a Lender
--------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
0000 Xxxxx Xxxx.
Mailstop 1020201
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.xxxxxx@xxx.xxx
PRICING SCHEDULE
APPLICABLE MARGIN LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS
----------------------------- ----------------------- ---------------------- -------------------------------
Eurodollar Rate 1.00% 1.25% 1.50%
ABR 0% 0% 0%
APPLICABLE FEE RATE LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS
----------------------------- ----------------------- ---------------------- -------------------------------
Commitment Fee 0.20% 0.25% 0.30%
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to the Credit Agreement.
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is less than or equal to 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status and (ii) the Leverage Ratio is
less than or equal to 1.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Borrower has not qualified for Level I Status or Level II Status.
"Status" means Level I Status, Level II Status or Level III Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required
pursuant to the Credit Agreement, then the Applicable Margin and Applicable Fee
Rate shall be the highest Applicable Margin and Applicable Fee Rate set forth in
the foregoing table until five days after such Financials are so delivered.
Subject to the immediately preceding sentence, the Applicable Margin and
Applicable Fee Rate shall be based on Level I Status for the period commencing
on the Closing Date to but not including the fifth Business Day after the
Administrative Agent has received the Financials for the period ending September
30, 2001.
COMMITMENT SCHEDULE
LENDER COMMITMENT
--------------------------------- ----------------
Bank One, NA $28,000,000.00
SunTrust Bank $25,000,000.00
U.S. Bank National Association $25,000,000.00
Bank of America, N.A. $18,000,000.00
Fleet National Bank $18,000,000.00
The Chase Manhattan Bank $13,000,000.00
Royal Bank of Canada $13,000,000.00
UMB Bank, n.a. $10,000,000.00
AGGREGATE COMMITMENT $150,000,000.00
SCHEDULE 2.21
EXISTING LETTERS OF CREDIT
Expiration
Beneficiary Date Auto Renews Amount
----------------------------------- ------------------ ------------------ -----------------
(Y/N)
Lumbermens Mutual Casualty 9/17/02 Y $900,000.00
National Union Fire 9/17/02 Y $600,000.00
National Union Fire 9/17/02 Y $600,000.00
National Union Fire 9/17/02 Y $425,000.00
National Union Fire 9/17/02 Y $940,000.00
Lumbermens Mutual Casualty 9/22/02 Y $900,000.00
Lumbermens Mutual Casualty 2/13/02 Y $1,000,000.00
City of Forest Lake, MN 12/1/01 N $74,875.00
City of Novi,MI 8/20/02 N $46,337.25
-----------------
Total $5,486,212.25
=================
SCHEDULE 5.8
SUBSIDIARIES
Subsidiary State Owner
------------------------------------------------------ ---------------- ---------------------------------------------------
ACMC, Inc. CO Xxxxxxxx'x International, Inc. (100%)
AII Services, Inc. KS Xxxxxxxx'x International, Inc. (100%)
Xxxx Arundel Apple Holding Corporation MD Xxxxxxxx'x International, Inc. (89%)
Xxxxx Xxxxxxx (10%)
Xxxxx Xxxx (1%)
Apple American Limited Partnership of Minnesota MN Applebee's of Minnesota, Inc. (25%LP interest);
Gourmet Systems of Minnesota, Inc. (75%GP
interest)
Applebee's Beverage, Inc. TX Xxxxxxxx'x International, Inc. (100%)
Xxxxxxxx'x Neighborhood Grill & Bar of Georgia, Inc. GA Xxxxxxxx'x International, Inc. (100%)
Applebee's Northeast, Inc. (formerly Pub Ventures of MA Xxxxxxxx'x International, Inc. (100%)
New England, Inc.) (Currently d/b/a as Gourmet
Systems of Main, Inc. in State of Maine)
Applebee's of Michigan, Inc. MI Xxxxxxxx'x International, Inc. (100%)
Applebee's of Minnesota, Inc. MN Xxxxxxxx'x International, Inc. (100%)
Applebee's of New Mexico, Inc. NM Xxxxxxxx'x International, Inc. (100%)
Applebee's of New York, Inc. NY Xxxxxxxx'x International, Inc. (100%)
Applebee's of Nevada, Inc. NV Xxxxxxxx'x International, Inc. (100%)
Applebee's of Pennsylvania, Inc. PA Xxxxxxxx'x International, Inc. (100%)
Applebee's of Texas, Inc. TX Xxxxxxxx'x International, Inc. (100%)
Applebee's of Virginia, Inc. VA Xxxxxxxx'x International, Inc. (100%)
Applebee's UK, LLC KS Xxxxxxxx'x International, Inc. (Sole Member)
Apple Vermont Restaurants, Inc. VT Applebee's Northeast, Inc. (formerly Pub Ventures
of New England, Inc.) (100%)
Gourmet Systems of Arizona, Inc. AZ Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of California, Inc. CA Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Georgia, Inc. GA Xxxxxxxx'x International, Inc. (100%)
SCHEDULE 5.8
SUBSIDIARIES
Subsidiary State Owner
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems, Inc. MO Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Kansas, Inc. KS Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Minnesota, Inc. MN Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Nevada, Inc. NV Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Tennessee, Inc. TN Xxxxxxxx'x International, Inc. (100%)
Gourmet Systems of Wisconsin, Inc. WI Xxxxxxxx'x International, Inc. (100%)
-GourmetWest of Nevada, Limited Liability Company NV Gourmet Systems of Nevada, Inc. (Managing Member)
[50%]; Applebee's of Nevada, Inc. (Non-Managing
Member) [50%]
Innovative Restaurant Concepts, Inc. GA RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
IRC Kansas, Inc. KS Innovative Restaurant Concepts, Inc. (100%)
RB International, Inc. (formerly Rio Bravo KS Xxxxxxxx'x International, Inc. (100%)
International, Inc.)
Rio Bravo Restaurant, Inc. NY RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
Rio Bravo Services, Inc. KS RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
Summit Restaurants, Inc. GA Innovative Restaurant Concepts, Inc. (100%)
A.I.I. Euro Services (Holland) B.V. Holland Xxxxxxxx'x International, Inc. (100%)
AII Services - Europe, Limited England Xxxxxxxx'x International, Inc. (100%)
Nova Scotia Unlimited Liability Company Nova Scotia, Gourmet Systems of Tennessee, Inc. (100%)
Canada
SCHEDULE 5.16
ENVIRONMENTAL MATTERS
None
SCHEDULE 6.15
EXISTING INVESTMENTS
None
SCHEDULE 6.16
EXISTING LIENS
None
