EXHIBIT 10.12
[CONFORMED COPY]
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THIRD AMENDED AND RESTATED TERM LOAN AND REVOLVING
CREDIT AGREEMENT
among
XXXXXX XXXXXXX LLC,
XXXXXX XXXXXXX USA CORPORATION,
XXXXXX XXXXXXX POWER GROUP, INC.,
XXXXXX XXXXXXX ENERGY CORPORATION,
THE GUARANTORS SIGNATORY HERETO,
THE LENDERS SIGNATORY HERETO
and
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
arranged by
BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book Manager
Dated as of August 2, 2002
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS; CONSTRUCTION
SECTION 1.01. CERTAIN DEFINITIONS..........................................2
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SECTION 1.02. CONSTRUCTION................................................35
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SECTION 1.03. ACCOUNTING PRINCIPLES.......................................36
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SECTION 1.04. UTILIZATION OF COMMITMENTS IN FOREIGN CURRENCIES............36
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ARTICLE 2
THE CREDITS
SECTION 2.01. TERM LOAN FACILITY..........................................36
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SECTION 2.02. REVOLVING CREDIT FACILITY...................................37
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SECTION 2.03. SWINGLINE...................................................37
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SECTION 2.04. LETTER OF CREDIT FACILITY...................................40
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SECTION 2.05. MAKING OF LOANS; NOTES; LOAN ACCOUNTS.......................49
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SECTION 2.06. INTEREST RATES..............................................51
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SECTION 2.07. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS..............54
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SECTION 2.08. INTEREST PAYMENT DATES......................................55
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SECTION 2.09. FEES........................................................56
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SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENTS....................57
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SECTION 2.11. PREPAYMENTS GENERALLY.......................................58
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SECTION 2.12. PREPAYMENTS, ETC............................................58
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SECTION 2.13. PRO RATA TREATMENT..........................................60
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SECTION 2.14. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES............61
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SECTION 2.15. PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS.............64
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SECTION 2.16. TAXES.......................................................67
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SECTION 2.17. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE..................69
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SECTION 2.18. APPOINTMENT OF THE COMPANY AS AGENT FOR BORROWER............70
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SECTION 2.19. BORROWER WAIVER.............................................71
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. CORPORATE STATUS............................................72
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SECTION 3.02. CORPORATE POWER AND AUTHORIZATION...........................72
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SECTION 3.03. EXECUTION AND BINDING EFFECT................................73
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SECTION 3.04. GOVERNMENTAL APPROVALS AND FILINGS..........................73
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SECTION 3.05. ABSENCE OF CONFLICTS........................................73
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SECTION 3.06. FINANCIAL STATEMENTS........................................74
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SECTION 3.07. ABSENCE OF UNDISCLOSED LIABILITIES..........................74
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SECTION 3.08. ABSENCE OF MATERIAL ADVERSE CHANGES..........................75
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SECTION 3.09. ACCURATE AND COMPLETE DISCLOSURE.............................75
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SECTION 3.10. MARGIN REGULATIONS...........................................75
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SECTION 3.11. SUBSIDIARIES.................................................75
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SECTION 3.12. PARTNERSHIPS, ETC............................................76
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SECTION 3.13. LITIGATION...................................................76
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SECTION 3.14. ABSENCE OF EVENTS OF DEFAULT.................................76
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SECTION 3.15. ABSENCE OF OTHER DEFAULTS....................................76
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SECTION 3.16. INSURANCE....................................................77
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SECTION 3.17. TITLE TO PROPERTY............................................77
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SECTION 3.18. INTELLECTUAL PROPERTY........................................77
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SECTION 3.19. TAXES........................................................78
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SECTION 3.20. EMPLOYEE BENEFITS............................................78
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SECTION 3.21. ENVIRONMENTAL MATTERS........................................79
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SECTION 3.22. COLLATERAL...................................................80
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ARTICLE 4
CONDITIONS OF LENDING
SECTION 4.01. CONDITIONS TO EFFECTIVENESS..................................81
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SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT................83
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ARTICLE 5
AFFIRMATIVE COVENANTS
SECTION 5.01. BASIC REPORTING REQUIREMENTS.................................84
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SECTION 5.02. INSURANCE....................................................89
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SECTION 5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS..................................................91
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SECTION 5.04. PRESERVATION OF CORPORATE STATUS.............................91
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SECTION 5.05. GOVERNMENTAL APPROVALS AND FILINGS...........................92
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SECTION 5.06. MAINTENANCE OF PROPERTIES....................................92
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SECTION 5.07. AVOIDANCE OF OTHER CONFLICTS.................................92
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SECTION 5.08. FINANCIAL ACCOUNTING PRACTICES...............................92
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SECTION 5.09. USE OF PROCEEDS..............................................93
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SECTION 5.10. CONTINUATION OF OR CHANGE IN BUSINESS........................93
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SECTION 5.11. CONSOLIDATED TAX RETURN......................................93
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SECTION 5.12. FISCAL YEAR..................................................93
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SECTION 5.13. ERISA........................................................93
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SECTION 5.14. INFORMATION REGARDING COLLATERAL.............................94
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SECTION 5.15. FURTHER ASSURANCES...........................................94
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SECTION 5.16. SUBSIDIARIES.................................................95
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ARTICLE 6
NEGATIVE COVENANTS
SECTION 6.01. FINANCIAL COVENANTS...........................................96
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SECTION 6.02. LIENS.........................................................98
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SECTION 6.03. INDEBTEDNESS.................................................100
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SECTION 6.04. LOANS, ADVANCES AND CERTAIN INVESTMENTS; ACQUISITIONS........102
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SECTION 6.05. CHANGES IN BUSINESS..........................................103
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SECTION 6.06. AMENDMENT OF CERTAIN DOCUMENTS...............................103
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SECTION 6.07. MERGERS; ASSET SALES.........................................104
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SECTION 6.08. ERISA OBLIGATIONS............................................104
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SECTION 6.09. SIGNIFICANT FOREIGN SUBSIDIARIES.............................105
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SECTION 6.10. CERTAIN AGREEMENTS...........................................105
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SECTION 6.11. RESTRICTED PAYMENTS..........................................107
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SECTION 6.12. TRANSACTIONS WITH AFFILIATES.................................108
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SECTION 6.13. CAPITAL EXPENDITURES.........................................109
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SECTION 6.14. LIMITATION ON MODIFICATIONS OF TERMS OF CERTAIN
INDEBTEDNESS.....................................................109
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SECTION 6.15. HEDGING AGREEMENTS...........................................109
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SECTION 6.16. BANK ACCOUNTS................................................109
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ARTICLE 7
DEFAULTS
SECTION 7.01. EVENT OF DEFAULT.............................................110
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SECTION 7.02. CONSEQUENCES OF AN EVENT OF DEFAULT..........................113
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ARTICLE 8
THE AGENTS
SECTION 8.01. APPOINTMENT AND AUTHORIZATION................................114
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SECTION 8.02. DELEGATION OF DUTIES.........................................115
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SECTION 8.03. LIABILITY OF AGENTS..........................................115
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SECTION 8.04. RELIANCE BY AGENTS...........................................116
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SECTION 8.05. NOTICE OF DEFAULT............................................116
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SECTION 8.06. CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENTS.........117
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SECTION 8.07. INDEMNIFICATION OF AGENTS....................................117
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SECTION 8.08. AGENTS IN THEIR INDIVIDUAL CAPACITY..........................118
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SECTION 8.09. SUCCESSOR AGENTS.............................................118
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SECTION 8.10. AGENTS MAY FILE PROOFS OF CLAIM..............................119
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SECTION 8.11. COLLATERAL AND GUARANTY MATTERS..............................120
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ARTICLE 9
GUARANTY
SECTION 9.01. THE GUARANTY.................................................121
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SECTION 9.02. BANKRUPTCY...................................................121
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SECTION 9.03. NATURE OF LIABILITY..........................................121
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SECTION 9.04. INDEPENDENT OBLIGATION.......................................122
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SECTION 9.05. AUTHORIZATION................................................122
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SECTION 9.06. RELIANCE.....................................................123
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SECTION 9.07. SUBROGATION; CONTRIBUTION; SUBORDINATION.....................123
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SECTION 9.08. WAIVER.......................................................124
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SECTION 9.09. NATURE OF LIABILITY..........................................124
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SECTION 9.10. JUDGMENTS BINDING............................................125
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. HOLIDAYS....................................................125
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SECTION 10.02. RECORDS.....................................................125
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SECTION 10.03. AMENDMENTS AND WAIVERS; RELEASE OF COLLATERAL...............126
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SECTION 10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES......................128
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SECTION 10.05. NOTICES.....................................................129
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SECTION 10.06. EXPENSES; TAXES; INDEMNITY..................................130
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SECTION 10.07. SEVERABILITY................................................132
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SECTION 10.08. PRIOR UNDERSTANDINGS........................................132
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SECTION 10.09. DURATION; SURVIVAL..........................................132
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SECTION 10.10. COUNTERPARTS................................................133
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SECTION 10.11. LIMITATION ON PAYMENTS......................................133
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SECTION 10.12. SET-OFF.....................................................133
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SECTION 10.13. SHARING OF COLLECTIONS......................................134
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SECTION 10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS........134
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SECTION 10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL.......................................................140
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SECTION 10.16. CONFIDENTIALITY.............................................141
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SECTION 10.17. JUDGEMENT CURRENCY..........................................141
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SECTION 10.18. ENTIRE AGREEMENT; CONSTRUCTION..............................142
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EXHIBIT A - Form of Note
EXHIBIT B - Form of Swingline Advance Note
EXHIBIT C - Form of Quarterly Compliance Certificate
EXHIBIT D - Form of Transfer Supplement
EXHIBIT E - Form of Subsidiary Guaranty Agreement
EXHIBIT F - Form of Mortgage
EXHIBIT G - Form of Security Agreement
EXHIBIT H - Form of Request for Extension of Credit
EXHIBIT I - Form of Standard Notice
EXHIBIT J - Form of Standby Letter of Credit
SCHEDULE 1.01-A - Existing Letters of Credit
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SCHEDULE 1.01-B - Mortgaged Properties
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SCHEDULE 1.01-C - Sale/Leaseback Transactions
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SCHEDULE 2.01 - Commitments
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SCHEDULE 3.01 - Corporate Status
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SCHEDULE 3.02 - Consents and Approvals
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SCHEDULE 3.07(a) - Undisclosed Liabilities
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SCHEDULE 3.07(b) - Indebtedness
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SCHEDULE 3.11(a) - Subsidiaries
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SCHEDULE 3.11(b) - Preferred Stock
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SCHEDULE 3.12 - Partnerships
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SCHEDULE 3.13 - Disclosed Litigation
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SCHEDULE 3.15 - Other Defaults
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SCHEDULE 3.16 - Insurance
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SCHEDULE 3.21 - Environmental Matters
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SCHEDULE 6.02 - Liens
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SCHEDULE 6.04(a) - Investments in Special Purpose Subsidiaries
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SCHEDULE 6.04(d) - Investments in Other Persons
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SCHEDULE 10.05 - Notices
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THIRD AMENDED AND RESTATED TERM LOAN AND REVOLVING
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED TERM LOAN AND REVOLVING CREDIT
AGREEMENT, dated as of August 2, 2002, by and among XXXXXX XXXXXXX LLC, a
Delaware limited liability company (the "COMPANY"), the Borrowing Subsidiaries
(as hereinafter defined), the guarantors party hereto from time to time (the
"GUARANTORS", as defined further below), the lenders party hereto from time to
time (the "LENDERS", as defined further below), Bank of America, N.A., as
Administrative Agent and Collateral Agent for the Lenders hereunder, and Banc of
America Securities LLC, as Lead Arranger and Book Manager.
RECITALS
WHEREAS, certain of the parties hereto are currently party to that
certain Second Amended and Restated Revolving Credit Agreement dated as of May
25, 2001 (as amended, the "PREVIOUS CREDIT AGREEMENT"). The Credit Parties under
the Previous Credit Agreement (the "PREVIOUS CREDIT PARTIES") have requested
that the Previous Credit Agreement be amended in certain respects as described
below and, for the sake of clarity and convenience, that the Previous Credit
Agreement be restated as so amended. This Agreement shall become effective, and
shall amend and restate the Previous Credit Agreement, on the execution of this
Agreement by the Credit Parties signatory hereto, the Administrative Agent, the
Collateral Agent and each of the Lenders and the satisfaction of the conditions
precedent contained in Section 4.01 hereof; and from and after the Effective
Date, (i) all references made to the Previous Credit Agreement and the Loan
Documents or in any other instrument or document shall, without more, be deemed
to refer to this Third Amended and Restated Term Loan and Revolving Credit
Agreement and (ii) the Previous Credit Agreement shall be deemed amended and
restated in its entirety hereby.
WHEREAS, the Borrowers (as herein defined) have requested that the
Lenders continue to extend credit to the Company as well as to each Borrowing
Subsidiary, and the Lenders, upon the occurrence of the Effective Date and
subject to the terms hereof, will continue to lend monies and/or make advances,
extensions of credit or other financial accommodations to, on behalf of or for
the benefit of the Company and each Borrowing Subsidiary pursuant hereto.
WHEREAS, the Grantors (as defined in the Security Agreement), the
Agents and the Lenders acknowledge that the Grantors have agreed to grant an
equal and ratable security interest in and to the Restricted Collateral to
secure the Senior Note Obligations (as defined in the Security Agreement).
NOW, THEREFORE, in consideration of the recitals set forth above,
which by this reference are incorporated into this Agreement set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and subject to the terms and conditions hereof and
on the basis of the representations and warranties herein set forth, the
Borrowers, the Guarantors, the Agents and the Lenders hereby agree to the
following:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
SECTION 1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"ACCEPTABLE SUBORDINATION PROVISIONS" shall have the meaning set
forth in Section 6.03(k) hereof.
"ADMINISTRATIVE AGENT" shall mean, initially, Bank of America, in its
capacity as Administrative Agent for the Lenders hereunder, and any successor
Administrative Agent appointed in accordance with Section 8.09 hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFECTED LENDER" shall have the meaning set forth in Section 2.06(E)
hereof.
"AFFILIATE" of a Person (the "SPECIFIED PERSON") shall mean (a) any
Person which directly or indirectly controls, or is controlled by, or is under
common control with, the Specified Person, and (b) any director or officer (or,
in the case of a Person which is not a corporation, any individual having
analogous powers) of the Specified Person or of a Person who is an Affiliate of
the Specified Person within the meaning of the preceding clause (a). For
purposes of the preceding sentence, "CONTROL" of a Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT-RELATED PERSONS" shall mean the Agents, together with their
Affiliates (including, in the case of Bank of America in its capacity as the
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Administrative Agent and the Collateral Agent, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"AGENTS" shall mean, collectively, the Administrative Agent and the
Collateral Agent, and "AGENT" shall mean either of the foregoing.
"APPLICABLE MARGIN" shall mean a rate per annum equal to (i) 3.50% in
the case of the Euro-Rate Portion of the Loans and (ii) 2.50% in the case of the
Base Rate Portion of the Loans; PROVIDED that the Applicable Margin on any date
with respect to Loans of any Type and any Class shall be the sum of the
percentage determined in accordance with clause (i) or clause (ii) above, as
applicable, plus 2.00%, if on such date (x) an Event of Default exists and (y)
except in the case of an Event of Default under Section 7.01(a), 7.01(b),
7.01(L) or 7.01(M), the Administrative Agent shall have notified the Borrowers
in writing at the request of the Required Lenders that this PROVISO shall be
applicable.
"ASSET SALE" shall mean any sale, lease or other disposition
(including any such transaction effected by way of merger or consolidation) by
the Company or any Subsidiary of any asset, including, without limitation, any
Sale/Leaseback Transaction, whether or not involving a capital lease, but
excluding (a) dispositions of inventory, equipment or materials in the ordinary
course of business, (b) dispositions of Temporary Cash Investments and cash
payments otherwise permitted under this Agreement, (c) dispositions pursuant to
a Securitization Transaction, (d) dispositions to any Credit Party or any
Wholly-Owned Subsidiary thereof, (e) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof, (f) licenses or
sublicenses of intellectual property and other know-how in the ordinary course
of business and (g) subleases of real property in the ordinary course of
business. To the extent that, in connection with a reduction in the
proportionate interest of the Company or any Subsidiary in a joint venture, the
Company or a Subsidiary receives Net Cash Proceeds (determined as if such
transaction were an Asset Sale), then such transaction shall be treated as an
Asset Sale to the extent of such Net Cash Proceeds.
"ATTORNEY COSTS" shall mean and includes all reasonable fees,
expenses and disbursements of any law firm or other external counsel and,
without duplication, the reasonable allocated cost of internal legal services
and all reasonable expenses and disbursements of internal counsel.
"BANK OF AMERICA" shall mean Bank of America, N.A., a national
banking association.
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"BASE RATE" shall have the meaning set forth in Section 2.06(a)(i)
hereof.
"BASE RATE OPTION" shall have the meaning set forth in Section
2.06(a)(i) hereof.
"BASE RATE PORTION" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at such
time (i) under the Base Rate Option or (ii) in accordance with Section 2.15
hereof. If no Loan or Loans is specified, "BASE RATE PORTION" shall refer to the
Base Rate Portion of all Loans outstanding at such time.
"BENEFIT PLAN" shall mean any plan, agreement, arrangement or
commitment which is an employment or consulting agreement, executive
compensation plan, bonus plan, deferred compensation agreement, employee
pension, profit-sharing, savings or retirement plan, employee stock option or
stock purchase plan, retiree medical or life, group life, health, or accident
insurance or other benefit plan, agreement, arrangement or commitment,
including, without limitation, severance, or other bonus practice (including,
without limitation, employee benefit plans, as defined in section 3(3) of
ERISA), with respect to which the Company, any Borrowing Subsidiary, any of the
Company's other Significant Subsidiaries, or a member of their respective
Controlled Group, at any relevant time have some liability or obligation to
contribute or pay benefits and which relates to current or former employees of
the Company, any Borrowing Subsidiary, any other Significant Subsidiary or any
member of their respective Controlled Group.
"BORROWERS" shall mean any one or more of the Company and any
Borrowing Subsidiary, and individually, the Borrowers are referred to as a
"BORROWER".
"BORROWING SUBSIDIARY" shall mean Xxxxxx Xxxxxxx USA Corporation, a
Delaware corporation, Xxxxxx Xxxxxxx Power Group, Inc., a Delaware corporation,
and Xxxxxx Xxxxxxx Energy Corporation, a Delaware corporation, in each case for
so long as such Persons are Subsidiaries of the Company.
"BUDGET" shall mean the budget of the Company for the fiscal years
2002- 2005 provided to the Lenders on May 9, 2002.
"BUSINESS ACQUISITION" shall mean (i) an Investment by the Company or
any of its Subsidiaries in any other Person (including an Investment by way of
acquisition of securities of any other Person) not theretofore a Subsidiary
pursuant to which such Person shall become a Subsidiary or shall be merged into
or consolidated with the Company or any of its Subsidiaries or (ii) an
acquisition by
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the Company or any of its Subsidiaries of the property and assets of any Person
(other than the Company or any of its Subsidiaries) that constitute
substantially all the assets of such Person or any division or other business
unit of such Person; PROVIDED that the formation of any new Subsidiary shall not
in and of itself constitute a Business Acquisition.
"BUSINESS DAY" shall mean (a) with respect to selection of the
Euro-Rate Option, prepayment of any Euro-Rate Portion of any Loans or
determining the first or last day of any Euro-Rate Funding Period, a day for
dealings in deposits in Dollars by and among banks in the London interbank
market and on which commercial banks are open for domestic and international
business in New York, New York and (b) with respect to selection of the Base
Rate Option, prepayment of any part of the Base Rate Portion of any Loans, and
in every other context, any day other than a Saturday, Sunday or other day on
which banking institutions are authorized or obligated to close in New York, New
York.
"CAPITAL EXPENDITURES" shall have the meaning set forth in Section
6.13.
"CAPITALIZED LEASE" shall mean at any time any lease which is, or is
required under GAAP to be, capitalized on the balance sheet of the lessee at
such time, and "CAPITALIZED LEASE OBLIGATION" of any Person at any time shall
mean the aggregate amount which is, or is required under GAAP to be, reported as
a liability on the balance sheet of such Person at such time as lessee under a
Capitalized Lease.
"CASH COLLATERALIZE" shall mean to pledge and deposit with or deliver
to the Collateral Agent, for the benefit of the Agents, the LC Issuer and the
Letter of Credit Lenders, as collateral for the applicable Letter of Credit
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Collateral Agent and the LC Issuer.
Derivatives of such term shall have corresponding meaning. Each Credit Party
hereby grants the Collateral Agent, for the benefit of the Agents, the LC Issuer
and the Letter of Credit Lenders, a security interest in all such cash and
deposit account balances. Cash collateral shall be maintained in blocked
interest bearing (to the extent available) deposit accounts at Bank of America.
"CHANGE OF CONTROL" shall mean (a) any Person or group of Persons (as
used in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and the rules and regulations thereunder) shall have
become the beneficial owner (as defined in Rules 13d-3 and l3d-5 promulgated by
the Securities and Exchange Commission (the "SEC") under the Exchange Act) of
35% or more of the outstanding Voting Stock of Parent, (b) Parent shall have
ceased to own, directly or indirectly, 100% of the Voting Stock of the Company
or
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(c) a change in the board of directors of the Company shall have occurred which
results in a majority of directors not being Continuing Directors.
"CLASS", when used in respect of any Loan, Borrowing or Commitment,
shall refer to whether such Loan, or the Loans comprising such Borrowing, or the
Loans to be made pursuant to such Commitment, are Revolving Credit Loans , Term
Loans or Swingline Advances. The Letter of Credit Commitments also constitute a
Class of Commitments.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, and regulations thereunder, in each
case as in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"COLLATERAL" shall mean any and all "Collateral", as defined in any
applicable Collateral Document.
"COLLATERAL AGENT" shall mean Bank of America, in its capacity as
collateral agent under the Collateral Documents, and its successors in such
capacity.
"COLLATERAL AND GUARANTEE REQUIREMENT" shall mean the requirement
that:
(a) the Collateral Agent shall have received from each Credit Party
a counterpart of the Security Agreement duly executed and delivered on behalf of
such Credit Party;
(b) the Collateral Agent shall have "control" (within the meaning of
Section 8-106 of the Uniform Commercial Code) of all outstanding Equity
Interests of each Subsidiary (other than an Immaterial Subsidiary) owned
directly by any Credit Party; PROVIDED that the Credit Parties shall not be
required to pledge (i) more than 66% of the outstanding voting Equity Interests
of any Foreign Subsidiary, (ii) any of the Equity Interests of any Subsidiary
owned by any Foreign Subsidiary, (iii) the Equity Interests of any Special
Purpose Subsidiary, if and to the extent that either such Equity Interests have
been pledged (or will be required to be pledged) to secure the obligations of
such Special Purpose Subsidiary (other than a Special Purpose Subsidiary created
in connection with a Securitization Transaction) or the pledge of such Equity
Interests would constitute a default, violation or "change of control" or
similar event under any agreement or law binding on such Special Purpose
Subsidiary or the Credit Party that is the owner of such Equity Interests, or
(iv) the Equity Interests in any other Subsidiary which is not a Wholly-Owned
Domestic Subsidiary if and to the extent
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that the pledge of such Equity Interests is not permitted by applicable law or
by the organizational documents or joint venture arrangements of such Subsidiary
and, if so requested by the Administrative Agent upon instruction of the
Required Lenders, the Company is unable through the exercise of commercially
reasonable efforts to obtain any waiver or consent necessary to permit such
pledge;
(c) each Wholly-Owned Domestic Subsidiary (other than (i) the Credit
Parties listed on the signature pages hereof, (ii) Immaterial Subsidiaries and
(iii) the Special Purpose Subsidiaries) shall have executed and delivered a
Subsidiary Guaranty Agreement;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended to be
created by the Collateral Documents and perfect such Liens to the extent
required by, and with the priority required by, the Loan Documents, shall have
been filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and delivered by
the record owner of such Mortgaged Property and (ii) such title reports and
title insurance, legal opinions and other documents as the Collateral Agent or
the Required Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; and
(f) each Credit Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery of
all Collateral Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
"COLLATERAL DOCUMENTS" shall mean the Mortgages, the Security
Agreement, and any additional security or control documentation delivered or
required to be delivered pursuant to the Loan Documents to secure the
Obligations or the "Secured Obligations" as defined in any such Loan Document.
"COMMITMENT" shall mean a Letter of Credit Commitment, a Revolving
Credit Commitment, a Swingline Advance Commitment or a Term Commitment. The
amount of each Lender's Commitment of each Class as of the Effective Date is set
forth on Schedule 2.01, or thereafter in the Transfer Supplement pursuant to
which such Lender shall have assumed its Commitment, as applicable.
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"COMPANY" shall have the meaning set forth in the initial paragraph
hereto.
"CONSOLIDATED ADJUSTED EBITDA" for any period, with respect to Parent
and its consolidated Subsidiaries, shall mean the sum of (a) Consolidated Net
Income for such period and (b) to the extent deducted in determining
Consolidated Net Income, (i) Consolidated Adjusted Interest Expense for such
period, (ii) charges against income for foreign, federal, state and local income
taxes for such period and (iii) the amount of all expenses for depreciation and
amortization for such period, all as determined on a consolidated basis in
accordance with GAAP; PROVIDED that, if an Asset Sale occurs during such period,
"CONSOLIDATED ADJUSTED EBITDA" shall be determined after giving pro forma effect
thereto as if such Asset Sale had occurred at the beginning of such period.
"CONSOLIDATED ADJUSTED INTEREST EXPENSE" for any period shall mean
the sum, without duplication, of (a) the total interest expense of Parent and
its consolidated Subsidiaries, (b) the portion of rental expense in respect of
Financing Leases representative of an interest factor and (c) any dividend paid
or accrued on the Trust Preferred, in each case for such period and determined
on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" for any period shall mean the net earnings
(or loss) after taxes of Parent and its consolidated Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP; PROVIDED
that "CONSOLIDATED NET INCOME" shall not include, without duplication, (i) any
gains or losses (A) from Asset Sales or other Prepayment Events, (B) that are
(x) extraordinary or (y) non-cash and nonrecurring or unusual or (C) that are
associated with claims settlements, (ii) any additions to reserves for asbestos
liabilities which are not offset by a corresponding increase in insurance
recoveries and which are not a cash item during the period for which
Consolidated Net Income is to be determined (PROVIDED that Consolidated Net
Income shall include any cash expenses in respect of asbestos liabilities during
the period for which Consolidated Net Income is to be determined which are (x)
charged against a reserve referred to in this clause (ii) which was established
in a prior period (but only to the extent such reserves were taken from and
after the first day of the Company's fiscal quarter beginning closest to April
1, 2002) and (y) not otherwise deducted in the determination of such
Consolidated Net Income), (iii) any income recorded as a result of commuting
insurance policies that relate to asbestos exposure and (iv) non-cash charges
relating to writedowns of assets to market value and writedowns of claims.
"CONTINUING DIRECTORs" shall mean members of the board of directors
of the Company who (a) were directors on January 1, 2002 or (b) have been
directors
8
for at least two years, or (c) were nominated or elected with the affirmative
vote of the greater of (x) a majority of the Continuing Directors on the board
or (y) three Continuing Directors.
"CONTROLLED GROUP" shall mean with respect to any Person, all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with such Person, are
treated as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of
the Code or Section 4001(a)(2) of ERISA.
"CONVERTIBLE SUBORDINATED NOTES" shall mean Parent's 6.50%
Subordinated Convertible Notes due 2007 issued pursuant to the Indenture dated
as of May 31, 2001 among Parent, the Company and BNY Midwest Trust Company.
"CORRESPONDING SOURCE OF FUNDS" shall mean in the case of any Funding
Segment of the Euro-Rate Portion, the proceeds of hypothetical receipts by a
Notional Euro-Rate Funding Office or by a Lender through a Notional Euro-Rate
Funding Office of one or more Dollar deposits in the interbank eurodollar market
at the beginning of the Euro-Rate Funding Period corresponding to such Funding
Segment having maturities approximately equal to such Euro-Rate Funding Period
and in an aggregate amount approximately equal to such Lender's Pro Rata share
of such Funding Segment.
"CREDIT EXPOSURE" shall mean, with respect to any Lender at any time,
the sum of (i) such Lender's Revolving Credit Commitment at such time or, if the
Revolving Credit Commitments shall have been terminated, such Lender's Revolving
Credit Outstandings at such time PLUS (ii) the aggregate outstanding principal
amount of such Lender's Term Loans at such time PLUS (iii) such Lender's Letter
of Credit Commitment at such time or, if the Letter of Credit Commitments shall
have terminated, such Lender's Letter of Credit Percentage of the Letter of
Obligations at such time.
"CREDIT PARTIES" shall mean, collectively, the Borrowers and the
Guarantors, and "CREDIT PARTY" shall mean any of the foregoing.
"CREDITORS" shall mean the Lenders, the LC Issuer, the Swingline
Lender and the Agents.
"DEBT INCURRENCE" shall mean any incurrence of Indebtedness after May
9, 2002 by the Company or any Subsidiary that results in Net Cash Proceeds,
other than the incurrence of (i) an aggregate amount of up to $50,000,000 of
Indebtedness from a Securitization Transaction outstanding at any time, (ii)
9
$32,829,119 of Indebtedness under the Perryville Lease Facilities and (iii) any
other Indebtedness permitted by Section 6.03 (except subsections (f), (g) and
(k) thereof).
"DEBT INSTRUMENT" shall have the meaning set forth in Section 7.01(F)
hereof.
"DEBTOR RELIEF LAWS" shall mean the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULTING LENDER" shall mean any Lender that has not complied with
any of its obligations hereunder.
"DOLLAR," "DOLLARS" and the symbol "$" shall mean lawful money of the
United States of America.
"DOLLAR EQUIVALENT" shall mean, as of the date of determination, (a)
the amount denominated in Dollars, and (b) as to any amount denominated in
another currency, the equivalent amount in Dollars as determined by the
Administrative Agent on the basis of the Spot Rate for the purchase of Dollars
with such currency; PROVIDED that, with respect to Letter of Credit Obligations
in Offshore Currencies that are valued as of the last Business Day of each
month, the equivalent amount in Dollars shall be determined by the LC Issuer
instead of the Administrative Agent.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary which is not a
Foreign Subsidiary.
"E&Y" shall mean Ernst & Young Corporate Finance LLC, in its capacity
as special advisor to Xxxxx Xxxx & Xxxxxxxx, special counsel to the Agents.
"EFFECTIVE DATE" shall have the meaning given to that term in Section
4.01 hereof.
"ELIGIBLE ASSIGNEE" shall mean (a) any Lender; (b) an Affiliate of a
Lender or any fund that invests in bank loans and is managed by an investment
advisor to a Lender; and (c) any other Person approved by the Administrative
Agent and the Company (such approval not to be unreasonably withheld or
delayed); PROVIDED that (i) the Company's consent is not required upon the
10
occurrence and during the continuance of an Event of Default and (ii) approval
by the Company shall be deemed given if no objection is received by the
Administrative Agent from the Company within ten Business Days after written
notice of such proposed assignment has been received by the Company.
Notwithstanding the foregoing, neither the Company nor any of its Affiliates
shall be an "ELIGIBLE ASSIGNEE".
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any other
Person (including, without limitation, any Governmental Authority, citizens'
group or present or former employee of such Person) alleging, asserting or
claiming any actual or potential (a) violation of any Requirements of Law, (b)
liability under any Requirements of Law or (c) liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, fines or penalties arising out of, based on
or resulting from the presence, or release into the environment, of any
Hazardous Materials at any location, whether or not owned by such Person.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company, any other Credit
Party or any of their respective Subsidiaries directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment of (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ENVIRONMENTAL MATTERS" shall mean any matter arising out of,
relating to, or resulting from any emissions, discharges, releases or threatened
releases of Hazardous Materials into the air, surface water, groundwater, or
soil, or otherwise arising out of, relating to, or resulting from the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"ENVIRONMENTAL PERMITS" shall mean all permits, licenses,
authorizations, registrations and other governmental consents required by
applicable Requirements of Law for the use, storage, treatment, transportation,
release, emission and disposal of raw materials, by-products, wastes and other
substances used or produced by or otherwise relating to the operations of the
Company and any Significant Subsidiary of the Company.
11
"EQUITY INTERESTS" shall mean (a) any shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a person
or (b) any warrants, options or other rights to acquire such shares or
interests.
"EQUITY ISSUANCE" shall mean any issuance of equity securities
(including any preferred equity securities) by Parent or any Subsidiary of
Parent, other than (i) equity securities issued to Parent or any Subsidiary of
Parent, (ii) equity securities issued pursuant to employee benefit and/or
dividend reinvestment plans in the ordinary course of business, (iii) other
equity issuances to employees, officers, directors or consultants of Parent or
any Subsidiary of Parent in the ordinary course of business and (iv) equity
issuances to holders of minority interests in Subsidiaries of the Parent to the
extent the proceeds of such equity issuance are used or are to be used for such
Subsidiary's working capital and other general business purposes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA LIEN" shall mean a security interest or lien arising under or
in connection with a Pension Plan or Title IV of ERISA or a claim asserted
(including for failure to withhold) by the government which if successful would
result in such a lien; PROVIDED, HOWEVER, that any claim asserted, (a) for which
the Company has reasonable grounds to contest and (b) which the Company is
diligently contesting in good faith through appropriate proceedings with the IRS
or a court of law, shall not be deemed an ERISA Lien for so long as all of the
above conditions are met.
"EUROCURRENCY LIABILITIES" shall have the meaning set forth in the
definition of Euro-Rate Reserve Percentage set forth in Section 1.01 hereof.
"EURO-RATE" shall have the meaning set forth in Section 2.06(a)(ii)
hereof.
"EURO-RATE FUNDING PERIOD" shall have the meaning set forth in
Section 2.06(c) hereof.
"EURO-RATE OPTION" shall have the meaning set forth in Section
2.06(a)(ii) hereof.
"EURO-RATE PORTION" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at any time
12
under the Euro-Rate Option or at a rate calculated by reference to the Euro-Rate
under Section 2.15 hereof. If no Loan or Loans is specified, "Euro-Rate Portion"
shall refer to the Euro-Rate Portion of all Loans outstanding at such time.
"EURO-RATE RESERVE PERCENTAGE" shall mean for any day for any Lender
for any Funding Segment or Interest Period the reserve percentage (expressed as
a decimal, rounded upward to the next 1-100th of 1%) in effect on such day, as
determined in good faith by such Lender (which determination shall be conclusive
absent manifest error), under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum reserve
requirement of such Lender (including any emergency, supplemental or other
marginal reserve requirement) with respect to eurocurrency funding (currently
referred to as "EUROCURRENCY LIABILITIES").
"EVENT OF DEFAULT" shall mean any of the Events of Default described
in Section 7.01 hereof.
"EXCESS CASH FLOW" shall mean, for any fiscal year, the sum (without
duplication) of:
(a) Consolidated Net Income for such fiscal year, adjusted to
include the cash impact of any gains or losses that are extraordinary,
nonrecurring or unusual (other than (i) any gains or losses (A) from Asset Sales
or other Prepayment Events or (B) associated with claims settlements and (ii)
any income recorded as a result of commuting insurance policies that relate to
asbestos exposure); PLUS
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining Consolidated Net Income for such fiscal year; PLUS
(c) the amount, if any, by which Net Working Capital decreased
during such fiscal year (other than due to claims receipts); PLUS
(d) claims receipts to the extent not otherwise included in Excess
Cash Flow; MINUS
(e) the sum of (i) any non-cash gains included in determining
Consolidated Net Income for such fiscal year PLUS (ii) the amount, if any, by
which Net Working Capital increased during such fiscal year; MINUS
(f) Capital Expenditures by the Company and its Subsidiaries on a
consolidated basis for such fiscal year (except to the extent attributable to
the incurrence of Capital Lease Obligations or otherwise financed by incurring
long- term Indebtedness, other than Revolving Loans, Swingline Advances or other
similar loans under other lines of credit or revolving credit facilities); MINUS
13
(g) the aggregate principal amount of long-term Indebtedness
(including any current portion thereof) permanently repaid or prepaid by the
Company and its consolidated Subsidiaries during such fiscal year, excluding (i)
Indebtedness in respect of Revolving Loans, Swingline Advances and Letters of
Credit unless a corresponding portion of the Revolving Commitments or the Letter
of Credit Commitments is simultaneously terminated or reduced pursuant to
Section 2.10(B), (ii) Term Loans and Senior Notes prepaid pursuant to Section
2.12(b), and (iii) permanent repayments or prepayments of long-term Indebtedness
(including any current portion thereof) to the extent financed by incurring
other long-term Indebtedness; MINUS
(h) the aggregate amount of cash and cash equivalents required to
be deposited as cash collateral to support obligations of the Company and its
consolidated Subsidiaries during such fiscal year to the extent such cash and
cash equivalents remain on deposit at the end of, or have been applied to the
respective obligations during, such fiscal year; PLUS
(i) the aggregate amount of cash and cash equivalents deposited as
cash collateral to support obligations of the Company and its consolidated
Subsidiaries during a prior period and released to the Company or a consolidated
Subsidiary during such fiscal year to the extent there otherwise would have been
Excess Cash Flow in such prior fiscal year but for the preceding clause (h);
MINUS
(j) claims and other litigation and settlement payments and
reserves to the extent not otherwise deducted in determining Consolidated Net
Income for such fiscal year; MINUS
(k) cash payments made in respect of changes in other assets or
liabilities in the ordinary course of business not otherwise deducted in
determining Consolidated Net Income for such fiscal year; MINUS
(l) to the extent Excess Cash Flow determined in accordance with the
foregoing provisions of this definition is attributable solely to operations of
Foreign Subsidiaries, any amount thereof not permitted to be repatriated to a
Borrower at such time because of contractual or legal restrictions binding on a
Foreign Subsidiary until such time as such amount is no longer restricted from
being repatriated (at which time such amount shall become additional Excess Cash
Flow); PROVIDED that the Parent and its Subsidiaries shall have used
commercially reasonable efforts to ensure that any such contractual restriction
is not materially more restrictive than those in effect on the date hereof.
14
"EXISTING FOREIGN SALE-LEASEBACK TRANSACTIONS" shall mean the Sale-
Leaseback Transactions involving Foreign Subsidiaries listed on Schedule 3.07.
"EXISTING ITALIAN JOINT VENTURE ENTITIES" shall mean Xxxxxx Xxxxxxx
Italiana S.p.A., MF Energy s.r.l., MF Power s.r.l. and MF Waste s.r.l.
"EXISTING LETTERS OF CREDIT" shall mean the letters of credit listed
on Schedule 1.01-A.
"EXIT FUNDING AGREEMENT" shall mean that certain Exit Funding
Agreement dated as of October 15, 1999, by and between the Company (as
successor-in-interest to Xxxxxx Xxxxxxx Corporation) and SunTrust Bank, Central
Florida, National Association related to the restructuring of certain
indebtedness originally incurred to finance a portion of the costs of
constructing the waste-to- energy facility located in the Village of Xxxxxxx,
Illinois.
"FEDERAL FUNDS EFFECTIVE RATE" for any day shall mean the rate per
annum (rounded upward to the nearest 1/100 of l%) determined by the
Administrative Agent (which determination shall be conclusive) to be the rate
per annum announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight Federal
funds transactions arranged by Federal funds brokers on the previous trading
day, as computed and announced by such Federal Reserve Bank (or any successor)
in substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; PROVIDED that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"FINANCIAL LETTER OF CREDIT" shall mean a Letter of Credit that is
not, as determined by the LC Issuer, a Performance Letter of Credit, including a
commercial letter of credit.
"FINANCIAL LETTER OF CREDIT SUBLIMIT" shall mean $20,000,000.
"FINANCING LEASE" shall mean (i) any lease entered into in connection
with a Sale/Leaseback Transaction, (ii) any Capitalized Lease and (iii) any
other lease in respect of which the lessee is treated as the owner of the leased
property for purposes of the Code.
15
"FOREIGN DEBT" shall mean any Indebtedness (other than Indebtedness
in respect of the Existing Foreign Sale-Leaseback Transactions and refinancings,
replacements or renewals thereof) of a Foreign Subsidiary.
"FOREIGN HOLDINGS" shall mean Foreign Holdings Ltd., a Bermuda
company.
"FOREIGN SUBSIDIARY" shall mean (i) any Subsidiary created or
organized under the laws of a jurisdiction outside the United States of America
or (ii) (A) Xxxxxx Xxxxxxx Continental U.S., Inc. ("XXXXXX XXXXXXX CONTINENTAL
I"), (B) a newly-created Subsidiary ("XXXXXX XXXXXXX CONTINENTAL II") formed to
hold the Equity Interests in another newly-created Subsidiary formed to hold the
energy division of Xxxxxx Xxxxxxx Iberia, S.A. or (C) any of their respective
Subsidiaries that otherwise would constitute a Domestic Subsidiary, in the case
of any Subsidiary described in this clause (ii), so long as (x) the Person that
directly owns all of the Equity Interests in each of Xxxxxx Xxxxxxx Continental
I and Xxxxxx Xxxxxxx Continental II is a Foreign Subsidiary (within the meaning
of clause (i) of this definition) and (y) such Subsidiary is a holding company
substantially all of whose assets consist of Equity Interests in a Foreign
Subsidiary (within the meaning of clause (i) of this definition).
"FUNDING PERIODS" shall have the meaning set forth in Section 2.06(c)
hereof.
"FUNDING SEGMENT" of the Euro-Rate Portion of the Syndicated Loans at
any time shall mean the entire principal amount of such Portion to which at the
time in question there is applicable a particular Funding Period beginning on a
particular day and ending on a particular day. (By definition, each such Portion
is at all times composed of an integral number of discrete Funding Segments and
the sum of the principal amounts of all Funding Segments of any such Portion at
any time equals the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"GOVERNMENTAL ACTION" shall have the meaning set forth in Section
3.04 hereof.
"GOVERNMENTAL AUTHORITY" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
16
"GUARANTEE" shall mean the guarantee by any Person to pay or perform
the obligations of any other Person, including any agreement, whether such
agreement is on a contingency basis or otherwise, to purchase, repurchase or
otherwise acquire Indebtedness of any other Person, or to purchase, sell or
lease, as lessee or lessor, property or services, in any such case primarily for
the purpose of enabling another Person to make payment of Indebtedness.
"GUARANTEED OBLIGATIONS" shall mean the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note and Loan made under this Agreement and of
the Letter of Credit Obligations, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of each Borrower to the Agents, the LC Issuer, the Swingline Lender and
the Lenders now existing or hereafter incurred under, arising out of or in
connection with this Agreement or any other Loan Document to which any Borrower
is a party and the due performance and compliance with all the terms, conditions
and agreements contained in such Loan Documents by such Borrower.
"GUARANTORS" shall mean Parent, Foreign Holdings, Holdcos, the
Borrowers, any other Wholly-Owned Domestic Subsidiary of the Company party to a
Subsidiary Guaranty Agreement on the date hereof and any other Wholly- Owned
Domestic Subsidiary of the Company which becomes a Guarantor pursuant to Section
5.15 hereof. Each Borrower shall be a Guarantor with respect to the Obligations
of each other Borrower.
"GUARANTY" shall mean the Guaranty as set forth in Article 9 hereof.
"HAZARDOUS MATERIALS" shall mean any pollutants, contaminants,
hazardous or toxic substances, materials or wastes (including petroleum,
petroleum by-products, PCBs, and friable asbestos) as those concepts are used in
the Comprehensive Environmental Response Compensation and Liability Act
(CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substance
Control Act (TSCA), the Clean Air Act, the Clean Water Act, and other similar
federal or state statutes or regulations.
"HEDGING AGREEMENT" shall mean any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest rate, currency exchange rate or commodity price
hedging arrangement, whether or not classified as a hedge for purposes of GAAP.
"HOLDCOS" shall mean Xxxxxx Xxxxxxx Inc., a Delaware corporation, and
Xxxxxx Xxxxxxx International Holdings, Inc., a Delaware corporation.
17
"IMMATERIAL SUBSIDIARY" shall mean (i) Tray, Inc. or (ii) any
Subsidiary having consolidated assets in an amount of $500,000 or less.
"INDEBTEDNESS" of a Person shall mean with respect to any Person,
without duplication, all:
(a) liabilities or obligations incurred in connection with
borrowings (including (i) reimbursement obligations in respect of letters of
credit, banker's acceptances and similar instruments which have been drawn or
paid but not reimbursed within three Business Days and (ii) the sale of debt
securities) of such Person which in accordance with generally accepted
accounting principles would be included in determining total liabilities as
shown on the liability side of a balance sheet of such Person at the date as of
which Indebtedness is to be determined, including, without limitation,
Capitalized Lease Obligations of such Person;
(b) liabilities or obligations of such Person issued, incurred or
assumed in respect of the purchase price of property except for trade accounts
payable incurred in the ordinary course of business;
(c) liabilities or obligations of others of any of the types
specified in the preceding clauses (a) and (b) for which such Person is directly
or indirectly liable, by way of guaranty (whether by direct guaranty,
suretyship, discount, endorsement, take-or-pay agreement, agreement to purchase
or advance or keep in funds or other agreement having the effect of a guaranty)
or otherwise;
(d) liabilities or obligations of others of any of the types
specified in the preceding clauses (a) and (b) which are secured by Liens on any
assets of such Person, whether or not such liabilities or obligations shall have
been assumed by it;
(e) to the extent not included in the preceding clauses (a) through
(d), the aggregate drawn and undrawn amount of all financial letters of credit
issued on account of such Person;
(f) all obligations of such Person under Financing Leases;
(g) all net obligations of such Person under Hedging Agreements;
(h) all financing raised by such Person pursuant to Securitization
Transactions; and
18
(i) all financing raised by such Person pursuant to the Trust
Preferred or any similar arrangement.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 10.06.
"INDEMNIFIED PARTIES" shall mean the Agents, the LC Issuer, the
Swingline Lender, the Lenders, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing.
"INDENTURE" shall have the meaning set forth in Section 6.10 hereof.
"INVESTMENT" by any Person in any other Person shall mean:
(a) the acquisition by such Person of any stock, bonds, notes,
debentures, option contracts, investment contracts, partnership or other
ownership interests or other securities of any other Person or any other capital
contribution to any other Person;
(b) any advance, loan or extension of credit to any other Person by
such Person; and
(c) any Guarantee by such Person of any Indebtedness of any other
Person.
"IRS" shall mean the Internal Revenue Service.
"ISSUANCE" shall mean, with respect to any Letter of Credit, the
issuance, extension of the expiry of, renewal or increase in the amount of such
Letter of Credit. "ISSUE," "ISSUED" and "ISSUING" have corresponding meanings.
"LAW" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Governmental Authority.
"LC ISSUER" shall mean Bank of America or any other Lender replacing
Bank of America as LC Issuer upon the mutual consent of the Company and the
Administrative Agent, in each case not to be unreasonably withheld, and such
other Lender; PROVIDED that with respect to the Existing Letters of Credit, the
Letter of Credit Lender which issued the same shall be the LC Issuer with
respect thereto.
"LENDER" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Section 10.14 hereof pertaining to Persons
19
becoming or ceasing to be Lenders ; PROVIDED that neither the Company nor any of
its Subsidiaries or any of their respective Affiliates may be a "LENDER"
hereunder.
"LETTER OF CREDIT" shall mean a Financial Letter of Credit or a
Performance Letter of Credit issued hereunder.
"LETTER OF CREDIT AMENDMENT APPLICATION" shall mean an application
form for amendment of outstanding Letters of Credit as shall at any time be in
use by the LC Issuer, as the LC Issuer shall request.
"LETTER OF CREDIT APPLICATION" shall mean an application form for
issuance of Letters of Credit as shall at any time be in use by the LC Issuer,
as the LC Issuer shall request.
"LETTER OF CREDIT AVAILABILITY PERIOD" shall mean the period from and
including the Effective Date to and including the fifth Business Day prior to
the Letter of Credit Limit Date.
"LETTER OF CREDIT COMMITMENT" shall mean, with respect to each Letter
of Credit Lender, the commitment of such Lender to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Letter of Credit Percentage of the Letter of
Credit Obligations hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.10 or 2.12 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.14.
"LETTER OF CREDIT LENDER" shall mean a Lender having a Letter of
Credit Commitment, or if the Letter of Credit Commitments shall have terminated,
having Letter of Credit Obligations.
"LETTER OF CREDIT LIMIT DATE" shall mean, subject to Rule 3.14 of the
International Standby Practices, the fifth Business Day prior to the Maturity
Date.
"LETTER OF CREDIT OBLIGATIONS" shall mean the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit and (b) the
aggregate amount of all unreimbursed drawings under all Letters of Credit.
"LETTER OF CREDIT PERCENTAGE" shall mean, with respect to any Letter
of Credit Lender, the percentage of the aggregate Letter of Credit Commitments
represented by such Lender's Letter of Credit Commitment. If the Letter of
Credit Commitments shall have been terminated or shall have expired, the Letter
of Credit Percentages shall be determined based on the Letter of Credit
20
Commitments most recently in effect, giving effect to any subsequent assignments
pursuant to Section 10.14.
"LETTER OF CREDIT RELATED DOCUMENT" shall mean the Letters of Credit,
the Letter of Credit Applications, the Letter of Credit Amendment Applications
and any other document relating to any Letter of Credit, including any of the LC
Issuer's standard form documents for letter of credit Issuance.
"LIEN" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including, without limitation, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LOAN" shall mean any loan or advance by a Lender under this
Agreement, whether a Revolving Credit Loan, a Term Loan or a Swingline Advance
and "LOANS" shall mean all Revolving Credit Loans, Term Loans and Swingline
Advances made by Lenders under this Agreement.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty Agreements, the Collateral Documents, the Letter of Credit Related
Documents and the Transfer Supplements, and all other agreements and instruments
extending or renewing any indebtedness, obligation or liability arising under
any of the foregoing, and any certificate or instrument delivered by any
Borrower or any Guarantor in connection herewith or therewith, in each case as
the same may be amended, modified or supplemented from time to time hereafter.
"MAJOR CASUALTY PROCEEDS" shall mean (i) the aggregate insurance
proceeds received in connection with one or more related events by the Company
or any Subsidiary under any Property Insurance Policy or (ii) any award or other
cash compensation with respect to any one or more related condemnations of
property (or any transfer or disposition of property in lieu of condemnation)
received by the Company or any Subsidiary if the amount of such aggregate
insurance proceeds or award or other cash compensation exceeds $1,500,000.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a whole or (b) the
ability of the Credit Parties, taken as a whole, to perform their obligations
under any Loan Document.
"MATURITY DATE" shall mean April 30, 2005.
21
"XXXXX'X" shall mean Xxxxx'x Investor's Services, Inc., or any
successor thereto.
"MORTGAGE" shall mean a mortgage or deed of trust substantially in
the form of Exhibit F, with such changes therein as the Collateral Agent may
approve based on advice of local counsel, executed and delivered or to be
executed and delivered by a Credit Party.
"MORTGAGED PROPERTIES" shall mean (i) the properties listed in
Schedule 1.01-B and (ii) any other properties subjected or required pursuant to
Section 5.15 to be subjected to the Lien of a Mortgage.
"NET CASH PROCEEDS" shall mean, with respect to any Prepayment Event,
an amount equal to the cash proceeds received by the Company or any Subsidiary
from or in respect of such Prepayment Event (including any cash proceeds
received by way of deferred payment (other than in respect of interest), but
only as and when received, less:
(a) any fees, costs and expenses reasonably incurred by such Person
in respect of such Prepayment Event;
(b) amounts required to be paid to holders of minority interests in
any Subsidiary as a result of such Prepayment Event;
(c) if such Prepayment Event is an Asset Sale or receipt of Major
Casualty Proceeds, (i) any taxes (including, without limitation, income taxes,
withholding taxes and repatriation taxes) actually paid or to be paid by such
Person or, if such Person is a partnership or a limited liability company, any
such taxes that would be payable assuming the highest corporate tax rate were
applicable to such Person, as estimated by a Responsible Officer of the Company,
giving effect to the overall tax position of the Company, in respect of such
Prepayment Event, (ii) the amount of all Indebtedness (other than the Loans, the
Letters of Credit and the Senior Notes) secured by any assets subject to such
Prepayment Event and subject to mandatory prepayment as a result of such
Prepayment Event and (iii) in the case of a Prepayment Event involving a Foreign
Subsidiary or Special Purpose Subsidiary, any amount not permitted to be
repatriated to a Borrower at such time because of contractual or legal
restrictions binding on such Foreign Subsidiary or Special Purpose Subsidiary
until such time as such amount is no longer restricted from being repatriated
(at which time such amount shall become Net Cash Proceeds); PROVIDED that the
Parent and its Subsidiaries shall have used commercially reasonable efforts to
ensure that any such contractual restriction is not materially more restrictive
than those in effect on the date hereof;
22
(d) if such Prepayment Event is an Asset Sale, (i) the amount of
any reserves established by the Company and its Subsidiaries to fund purchase
price adjustments in respect of such Asset Sale and any reserves to fund
contingent liabilities payable by the Company and its Subsidiaries attributable
to such Asset Sale (as estimated by a Responsible Officer of the Company),
including, without limitation, liabilities under any indemnification obligations
and severance and other employee termination costs associated with such Asset
Sale, until such time as such amounts are no longer reserved or such reserve is
no longer necessary (at which time any remaining amounts will become Net Cash
Proceeds), (ii) amounts required to be paid at the closing of such Asset Sale
with respect to Indebtedness and other liabilities directly associated with the
assets that are the subject of such Asset Sale, including, without limitation,
trade payables and other accrued liabilities (to the extent not already
reflected in the amount of cash proceeds received by the Company or any of its
Subsidiaries from or in respect of such Prepayment Event), and (iii) in the case
of an Asset Sale with respect to the Existing Italian Joint Venture Entities (or
the direct or indirect Equity Interests therein), up to $10,000,000 of the
proceeds thereof contemplated by the terms of such transaction to be reinvested
in the Existing Italian Joint Venture Entities and their Subsidiaries and/or in
joint venture arrangements entered into (or to be entered into) by such Persons;
and
(e) if such Prepayment Event is the receipt of Major Casualty
Proceeds, the amount of the cash proceeds applied by the Company or a Subsidiary
within 180 days of the receipt thereof to the restoration or replacement of the
asset (or the reinvestment in an equivalent asset to be used in the business of
the respective Person) in respect of which such Major Casualty Proceeds were
received; PROVIDED that so long as the Company or a Subsidiary is at the end of
such 180- day period diligently proceeding with the restoration or replacement
of the asset in respect of which such Major Casualty Proceeds were received, the
180-day period shall be extended to the date that is the earlier of (A) the date
on which the Company or such Subsidiary (x) completes such restoration or
replacement or (y) decides not to further pursue such restoration or replacement
and (B) the 540th day after receipt thereof. The Net Cash Proceeds remaining at
such date shall then be applied in accordance with Section 2.12.
"NET WORKING CAPITAL" shall mean, at any date, (a) the consolidated
current assets of Parent and its consolidated Subsidiaries as of such date
(excluding cash and Temporary Cash Investments) minus (b) the consolidated
current liabilities of Parent and its consolidated Subsidiaries as of such date
(excluding current liabilities in respect of short-term Indebtedness and the
current portion of any Indebtedness under this Agreement and any other long-term
Indebtedness that would otherwise be included therein). Net Working Capital at
23
any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"NON-RECOURSE PROJECT DEBT" shall mean Indebtedness of any Special
Purpose Subsidiary that is without recourse to, or secured by any Lien on any
property or assets of, any other Person, other than (i) recourse in the nature
of a guaranty of completion or performance of an obligation which does not
itself constitute Indebtedness, (ii) recourse against the Company under the Exit
Funding Agreement and (iii) Liens on the capital stock of such Special Purpose
Subsidiary.
"NOTE" or "NOTES" shall mean the Note(s) and the Swingline Advance
Note(s) of the Borrowers executed and delivered under this Agreement, together
with all extensions, renewals, refinancings or refundings of any thereof in
whole or part.
"NOTIONAL EURO-RATE FUNDING OFFICE" shall have the meaning given to
that term in Section 2.17(a) hereof.
"OBLIGATIONS" shall mean all indebtedness, obligations and
liabilities of each Credit Party to any Lender or any Agent, the Swingline
Lender, or the LC Issuer from time to time arising under or in connection with
or related to or evidenced by or secured by this Agreement or any other Loan
Document, and all extensions or renewals thereof, whether such indebtedness,
obligations or liabilities are direct or indirect, otherwise secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now, existing or hereafter arising. Without
limitation of the foregoing, such indebtedness, obligations and liabilities
include the principal amount of Loans, Letter of Credit, Obligations, interest,
fees, indemnities or expenses under or in connection with this Agreement or any
other Loan Document, and all extensions and renewals thereof, whether or not
such Loans were made in compliance with the terms and conditions of this
Agreement or in excess of the obligation of the Lenders to lend. Obligations
shall remain Obligations notwithstanding any assignment or transfer or any
subsequent assignment or transfer of any of the Obligations or any interest
therein.
"OFFICE," when used in connection with the Administrative Agent,
shall mean its office located at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, or at such other office or offices of the Administrative Agent
or any branch, subsidiary or affiliate thereof as may be designated in writing
from time to time by the Administrative Agent to the Company.
24
"OFFSHORE CURRENCIES" shall mean any lawful currency constituting a
eurocurrency (other than Dollars), that in the opinion of the LC Issuer is
freely traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars.
"OPTION" shall mean the Base Rate Option or the Euro-Rate Option, as
the case may be.
"PARENT" shall mean Xxxxxx Xxxxxxx Ltd., a Bermuda company.
"PARTICIPANTS" shall have the meaning set forth in Section 10.14(B)
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency, department
or instrumentality succeeding to the functions of said corporation.
"PENSION PLAN" shall mean a single employer plan as defined in
Section 400l(a)(l5) of ERISA or an individual account plan which is subject to
the funding standards of Section 302 of ERISA with respect to which the Company,
any of its Significant Subsidiaries, or members of their respective Controlled
Groups, at any relevant time have some liability or obligation to contribute or
pay benefits and which relates to current or former employees of the Company,
any of its Significant Subsidiaries or any member of their respective Controlled
Groups.
"PERFECTION CERTIFICATE" shall have the meaning set forth in the
Security Agreement.
"PERFORMANCE LETTER OF CREDIT" shall mean a Letter of Credit that, as
determined by the LC Issuer, assures that a Borrower or a Subsidiary thereof
will fulfill a contractual nonfinancial obligation.
"PERMITTED CIT SALE" shall mean the sale of that certain parcel of
land containing 31.030 acres situated on Peach Tree Hill Road in the Township of
Xxxxxxxxxx, County of Essex and State of New Jersey and described in Schedule A
to the Agreement of Lease (the "LEASE") made on December 21, 1981 between Xxxxxx
Xxxxxxx Energy Corporation, as Lessor, and C.I.T. Financial Corporation, N.J.,
as Lessee, to The CIT Group, Inc. pursuant to the terms of the Lease.
"PERMITTED LIENS" shall mean:
(a) pledges or deposits by the Company or any of its Subsidiaries
under workers' compensation laws, unemployment insurance laws, social security
laws,
25
or similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness of the Company or any of
its Subsidiaries), or leases to which the Company or any of its Subsidiaries is
a party, or deposits to secure public or statutory obligations of the Company or
any of its Subsidiaries or deposits of cash or U.S. governmental bonds and other
Liens arising in the ordinary course of business to secure surety, appeal,
performance, bid or other similar bonds or instruments to which the Company or
any of its Subsidiaries is a party, or deposits as security for contested taxes
or import duties or for the payment of rent;
(b) Liens imposed by law such as carriers', warehousemen's,
materialmen's and mechanics' or other similar liens, or Liens arising out of
judgments or awards against the Company or any of its Subsidiaries with respect
to which the Company or any of its Subsidiaries at the time shall currently be
prosecuting an appeal or proceedings for review;
(c) Liens for taxes, assessments or governmental charges or levies
not yet subject to penalties for nonpayment and Liens for taxes, assessments or
governmental charges or levies the payment of which is being contested as
permitted by Section 5.03 hereof;
(d) survey exceptions, encumbrances, encroachments, protrusions,
easements or reservations of, or rights of others for rights of way, highways
and railroad crossings, sewers, electric lines, telephone and telegraph lines
and other similar purposes, or zoning or other restrictions as to the use of
real property; all of which Liens described in clause (d) hereof do not in the
aggregate materially detract from the value of the properties to which they
relate or materially impair their use in the operation of the business of the
Company and its Subsidiaries taken as a whole;
(e) Liens (i) in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or (ii) in favor of any
other country, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute;
(f) Liens made in favor of any customer arising in the ordinary
course of business of the Company or any Subsidiary thereof in respect of
payments made by or on behalf of such customer for goods produced or services
rendered to such customer;
(g) a security interest granted to the Collateral Agent, for the
benefit of the Agents, the LC Issuer and the Lenders, in Cash Collateral;
26
(h) Liens granted pursuant to the Collateral Documents; and
(i) with respect to a Mortgaged Property, "Permitted Encumbrances"
(as defined in the related Mortgage).
"PERRYVILLE LEASE FACILITIES" shall mean the Perryville I Lease
Facility and the Perryville III Lease Facility.
"PERRYVILLE I LEASE FACILITY" shall mean a Financing Lease and any
Indebtedness secured directly or indirectly by an assignment of such Financing
Lease of the property located at Perryville I Corporate Park, 00 Xxxxx 000 Xxxx,
Xxxxx Xxxxxxxx, Xxx Xxxxxx.
"PERRYVILLE III LEASE FACILITY" shall mean a Financing Lease and any
Indebtedness secured directly or indirectly by an assignment of such Financing
Lease of the property located at Perryville III Corporate Park, 00 Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxx.
"PERSON" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, Governmental
Authority or any other entity.
"PORTION" shall mean the Base Rate Portion or the Euro-Rate Portion,
as the case may be.
"POTENTIAL DEFAULT" shall mean any event or condition which with
notice or passage of time, or any combination of the foregoing, would constitute
an Event of Default.
"PREPAYMENT EVENT" shall mean (i) any Asset Sale (other than any
Asset Sale, the Net Cash Proceeds of which, when aggregated with the Net Cash
Proceeds of any related Asset Sale, do not exceed $1,500,000), (ii) any Debt
Incurrence, (iii) any Equity Issuance or (iv) the receipt by the Company or any
Subsidiary of Major Casualty Proceeds. The description of any transaction as
falling within the above definition does not affect any limitation on such
transaction imposed by the terms of this Agreement.
"PREVIOUS CREDIT AGREEMENT" shall have the meaning set forth in the
Recitals hereto.
"PREVIOUS CREDIT PARTIES" shall have the meaning set forth in the
Recitals hereto.
27
"PRIME RATE" as used herein, shall mean for any day the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate". (The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"PROJECT" shall mean any municipal solid waste project or any other
project the assets of which are financed on a limited recourse basis.
"PROPERTY INSURANCE POLICY" shall mean any insurance policy
maintained by the Company or any of its Subsidiaries covering losses with
respect to tangible real or personal property or improvements, but excluding
coverage for losses from business interruption.
"PRO RATA" shall have the meaning set forth in Section 2.13 hereof.
"PURCHASING LENDER" shall have the meaning set forth in Section
10.14(c) hereof.
"REGISTER" shall have the meaning set forth in Section 10.14(d)
hereof.
"REGULAR PAYMENT DATE" shall mean (i) in the case of Base Rate Loans,
the last Business Day of each calendar month after the date hereof, (ii) in the
case of fees under Section 2.09(a), the last Business Day of each March, June,
September and December after the date hereof, and (iii) in the case of fees
under Sections 2.09(c) and (d), no later than three (3) Business Days after the
last Business Day of each March, June, September and December after the date
hereof.
"RELEVANT DATE" shall have the meaning set forth in Section 1.03(a)
hereof.
"REPORTABLE EVENT" shall mean an event described in Section 4043 of
ERISA or in the regulations thereunder with respect to which the 30-day notice
is not waived or an event described in Section 4043 or in the regulations
thereunder with respect to which the 30-day notice has been waived and which
involves a liability of $1,000,000 or more or a material plan or a receipt of a
notice of withdrawal liabilities pursuant to Section 4202 of ERISA. For purposes
of this
28
definition a material plan is a plan in which benefit liabilities exceed assets
on a termination basis based on PBGC assumptions by $1,000,000.
"REQUIRED LENDERS" shall mean, at any time, Lenders having in the
aggregate more than 50% of the aggregate amount of the Credit Exposures at such
time (or, if such term is used with reference to a particular Class (E.G.,
"Required Letter of Credit Lenders"), having more than 50% of the aggregate
amount of the Credit Exposures of the applicable Class); PROVIDED that any
Credit Exposure held by a Defaulting Lender shall be excluded for purposes of
determining such percentage.
"REQUIREMENTS OF LAW" shall mean all applicable federal, state, and
local laws, statutes, rules, regulations, codes, ordinances, orders, decrees,
directives, permits, licenses and judgments relating to Environmental Matters in
effect from time to time.
"RESPONSIBLE OFFICER" of any Credit Party shall mean its Chief
Executive Officer, its Chief Financial Officer, its Executive Vice President,
any Senior Vice President, any Vice President, the Treasurer or one of its
Assistant Treasurers.
"RESTRICTED COLLATERAL" shall mean all Collateral which secures the
Senior Notes pursuant to the terms of the Collateral Documents.
"RESTRICTED PAYMENT" shall mean (i) any Stock Payment, (ii) any other
payment in respect of the Trust Preferred, (iii) any voluntary or optional
payment of principal in respect of Indebtedness (other than (A) Indebtedness
under the Loan Documents, (B) Indebtedness of a Special Purpose Subsidiary
(other than in connection with the Perryville Lease Facilities), (C)
Indebtedness outstanding under a line of credit, revolving credit facility or
similar facility which the Company reasonably anticipates at the time of such
voluntary payment to be available for reborrowing, (D) any such prepayment in
connection with a refinancing or replacement of such Indebtedness otherwise
permitted hereunder, (E) short-term Indebtedness of a Foreign Subsidiary and (F)
intercompany Indebtedness between or among the Company and its Subsidiaries or
between or among such Subsidiaries) and (iv) any Investment in Parent or Foreign
Holdings.
"RETAINED AMOUNT" shall mean any portion of Excess Cash Flow and Net
Cash Proceeds that is not required to be applied by the Company and its
Subsidiaries to reduce or cash collateralize the Credit Exposures or the Senior
Notes pursuant to Section 2.12(B).
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving
29
Credit Loans and to acquire participations in Swingline Advances hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.10 or 2.12 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.14.
"REVOLVING CREDIT LENDER" shall mean a Lender having a Revolving
Credit Commitment, or if the Revolving Credit Commitments shall have terminated,
having Revolving Credit Outstandings.
"REVOLVING CREDIT LOAN" shall mean a Loan made pursuant to Section
2.02.
"REVOLVING CREDIT OUTSTANDINGS" shall mean, with respect to any
Revolving Credit Lender at any time, the sum of the outstanding principal amount
of such Revolving Lender's Revolving Credit Loans and its Swingline Exposure at
such time.
"REVOLVING CREDIT PERIOD" shall mean the period from and including
the Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Revolving Credit Commitments.
"XXXXXXX OBLIGATIONS" shall mean, collectively, (a) the Company's
obligations under the $20,350,000 4.9% 1997 Construction (Equity) Bonds and (b)
the subordinated obligations under the Exit Funding Agreement relating to the
$95,000,000 7.25% 1999 Series C Term Bonds and the $18,000,000 7.0% 1999 Series
D Accretion Bonds.
"SALE/LEASEBACK TRANSACTION" shall mean any arrangement whereby the
Company or any Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred. For purposes of
calculating "Senior Debt", the "principal amount" of any obligations of any
Person under any leases entered into in connection with a Sale/Leaseback
Transaction shall be determined as set forth in Schedule 1.01-C.
"S&P" shall mean Standard & Poor's Rating Services, or any successor
thereto.
"SECURITIZATION TRANSACTION" shall mean any transaction in which the
Company or any Subsidiary sells or otherwise transfers or pledges accounts
30
receivable and related assets on terms reasonably satisfactory to the
Administrative Agent (a) to one or more third party purchasers or lenders or (b)
to a special purpose entity that borrows against such accounts receivable or
sells or pledges such accounts receivable and related assets to one or more
third party purchasers or lenders.
"SECURITY AGREEMENT" shall mean a security agreement in substantially
the form of Exhibit G executed and delivered or to be executed and delivered by
a Credit Party.
"SENIOR DEBT" shall mean the total principal amount of Indebtedness
of the Company and its consolidated Subsidiaries, determined on a consolidated
basis, excluding (a) the Convertible Subordinated Notes, (b) the subordinated
portion of the Xxxxxxx Obligations, (c) the Trust Preferred, (d) all Hedging
Agreements, (e) all Indebtedness to the extent of any cash collateral deposited
to secure such Indebtedness, (f) any other Subordinated Indebtedness and (g) the
Existing Foreign Sale/Leaseback Transactions (and any replacements, renewals or
refinancings thereof).
"SENIOR DEBT RATIO" shall mean, at any date, the ratio of (i) Senior
Debt at such date to (ii) Consolidated Adjusted EBITDA for the period of four
fiscal quarters most recently ended on or prior to such date.
"SENIOR NOTES" shall mean the senior notes issued under the
Indenture.
"SIGNIFICANT FOREIGN SUBSIDIARIES" shall have the meaning set forth
in Section 6.09 hereof.
"SIGNIFICANT SUBSIDIARY" shall mean (a) each Special Purpose
Subsidiary and (b) each other Subsidiary of the Company having assets
(determined on a consolidated basis with its own Subsidiaries, if any) in an
amount greater than 1% of the consolidated assets of the Company and its
Subsidiaries as of the end of the most recent fiscal year of the Company for
which financial statements are available.
"SPECIAL PURPOSE SUBSIDIARY" shall mean (a) a Subsidiary of the
Company formed with the express and sole purpose of, and which is engaged solely
in the business of, constructing or owning, leasing or operating a specific
Project, and with respect to which Subsidiary, neither the Company nor any of
its other Subsidiaries is obligated (except as guarantor of completion or
performance) to pay any Indebtedness (including lease obligations) incurred to
construct, own, lease or operate any such Project or any other Indebtedness of
such Subsidiary, under the Exit Funding Agreement, so long as such companies
otherwise qualify
31
under this definition or (b) a Domestic Subsidiary formed with the express and
sole purpose of, and which is engaged solely in the business of, acting as a
bankruptcy-remote conduit in connection with a Securitization Transaction.
"SPOT RATE" for a currency shall mean the rate quoted (expressed as a
decimal, rounded to the fourth decimal place) to the Administrative Agent as the
spot rate for the purchase of such currency with another currency through the FX
Trading Office of Bank of America at approximately 11:00 a.m. (San Francisco
time) on the date two Business Days prior to the date as of which the foreign
exchange settlement is made.
"STANDARD NOTICE" shall mean an irrevocable notice substantially in
the form of Exhibit I provided to the Administrative Agent on a Business Day
which is:
(a) At least three Business Days in advance in the case of
selection of, conversion to or renewal of the Euro-Rate Option or
prepayment of any Euro-Rate Portion;
(b) On the same Business Day in the case of selection of,
conversion to or renewal of the Base Rate Option or prepayment of
Base Rate Portion; and
(c) On the same Business Day in the case of Swingline
Advances.
Standard Notice must be provided no later than 12:00 p.m., New York City time,
on the last day permitted for such notice in the case of notices given pursuant
to clause (c) above, and no later than 1:00 p.m., New York City time, on the
last day permitted for such notice in the case of notices given pursuant to
clauses (a) and (b) above.
"STOCK PAYMENT" by any Person shall mean any dividend, distribution
or payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights there for) of such Person, including, without limitation, any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
there for) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
32
"SUBORDINATED INDEBTEDNESS" shall mean the Convertible Subordinated
Notes, the subordinated portion of the Xxxxxxx Obligations and Indebtedness
incurred pursuant to Section 6.03(k).
"SUBSIDIARY" of a Person at any time shall mean any corporation of
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may suspend or
dilute the voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and any trust of which a majority of the beneficial
interest is at such time owned directly or indirectly, beneficially or of
record, by such Person or one or more Subsidiaries of such Person. Unless
otherwise specified, "SUBSIDIARY" shall mean a Subsidiary of the Company.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the agreement of a
Subsidiary in the form of Exhibit E whereby it acknowledges to become a party
hereto as a Guarantor under Article 9 hereof.
"SWINGLINE ADVANCE" shall have the meaning set forth in Section 2.03
hereof.
"SWINGLINE ADVANCE COMMITMENT" shall have the meaning set forth in
Section 2.03 hereof.
"SWINGLINE ADVANCE COMMITTED AMOUNT" shall have the meaning set forth
in Section 2.03 hereof.
"SWINGLINE ADVANCE MATURITY DATE" shall have the meaning set forth in
Section 2.03 hereof.
"SWINGLINE ADVANCE PARTICIPATING INTEREST" shall have the meaning set
forth in Section 2.03 hereof.
"SWINGLINE EXPOSURE" shall mean, at any time, the aggregate principal
amount of all Swingline Advances outstanding at such time. The Swingline
Exposure of any Revolving Credit Lender at any time shall be its Pro Rata share
of the total Swingline Exposure at such time.
"SWINGLINE LENDER" shall mean Bank of America and any Lender which is
appointed as a successor Administrative Agent pursuant to Section 8.09 hereof.
"SYNDICATED LOAN" shall mean a Revolving Loan or a Term Loan.
33
"TAXES" shall have the meaning set forth in Section 2.16 hereof.
"TEMPORARY CASH INVESTMENT" shall mean any Investment in (a)
securities issued or directly and fully guaranteed or insured by the United
States of America government or any agency or instrumentality thereof having
maturities of not more than one year from the date of acquisition, (b)
marketable direct obligations issued by any State of the United States or any
political subdivision of any such State or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or Xxxxx'x, (c) demand deposits, time deposits and certificates of deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year from the date of acquisition
and overnight bank deposits, in each case with any bank or trust company
organized or licensed under the laws of the United States of America or any
State thereof having capital, surplus and undivided profits in excess of $250
million, (d) repurchase obligations with a term of not more than seven days for
underlying securities of the type described in clauses (a), (b) and (c) above
entered into with any financial institution meeting the qualifications specified
in clause (c) above, (e) commercial paper rated at least P-1 by Xxxxx'x and A-1
by S&P at the time of acquisition thereof or, if such commercial paper is rated
by only one such agency, at least such rating from such agency, (f) investments
in any Dollar denominated money market fund as defined by Rule 2a-7 of the
General Rules and Regulations promulgated under the Investment Company Act of
1940 and (g) in the case of a Foreign Subsidiary, substantially similar
investments denominated in foreign currencies (including similarly capitalized
foreign banks).
"TERM COMMITMENT" shall mean, with respect to each Term Lender, the
commitment of such Term Lender to make a Term Loan to the Borrowers on the
Effective Date in the amount of such commitment as set forth on Schedule 2.01.
"TERM LENDER" shall mean (a) on or prior to the Effective Date, each
Lender having a Term Commitment and (b) after the Effective Date, each Lender
having a Term Loan.
"TERM LOAN" shall mean a Loan made pursuant to Section 2.01.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean at any time the
aggregate amount of the Revolving Credit Commitments at such time.
"TOTAL REVOLVING CREDIT OUTSTANDINGS" shall mean at any time the sum
of the aggregate Revolving Credit Outstandings of all Revolving Credit Lenders
at such time.
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"TRANSFER EFFECTIVE DATE" shall have the meaning set forth in the
applicable Transfer Supplement.
"TRANSFER SUPPLEMENT" shall have the meaning set forth in Section
10.14(c) hereof.
"TRAY INC." shall mean, collectively, Tray, Inc., a Delaware
corporation, and its Subsidiaries existing on the Effective Date.
"TRUST PREFERRED" shall mean 9% $175,000,000 Trust Preferred
Securities of the Company (as successor to Xxxxxx Xxxxxxx Corporation) issued on
or about January 13, 1999, and the related junior subordinated debentures.
"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Option by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined.
"VOTING STOCK" shall mean, with respect to any corporation, the
capital stock of such corporation having the power to vote for a majority of the
board of directors of such corporation under ordinary circumstances.
"WHOLLY-OWNED DOMESTIC SUBSIDIARY" shall mean any Domestic Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time owned by the Company or one or
more Wholly-Owned Domestic Subsidiaries.
SECTION 1.02. CONSTRUCTION. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by any Agent
or by any Lender include reasonable and good faith estimates by such Agent or by
such Lender (in the case of quantitative determinations) and good faith beliefs
by such Agent or by such Lender (in the case of qualitative determinations). The
words "hereof," "herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The section and other headings contained in this Agreement and the
Table of Contents preceding this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
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SECTION 1.03. ACCOUNTING PRINCIPLES. (a) As used herein, "GAAP" shall
mean generally accepted accounting principles as such principles shall be in
effect in the United States at the Relevant Date, subject to the provisions of
this Section 1.03. As used herein, "RELEVANT DATE" shall mean the date a
relevant computation or determination is to be made or the date of relevant
financial statements, as the case may be.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; PROVIDED that, if the Company notifies the
Administrative Agent that the Company requests an amendment of any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment of any provision hereof
for such purpose), regardless of whether such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be
applied on the basis of GAAP as in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith.
SECTION 1.04. UTILIZATION OF COMMITMENTS IN FOREIGN CURRENCIES. The
Administrative Agent will determine the Dollar Equivalent with respect to any
(i) Letter of Credit denominated in an Offshore Currency as of the Issuance Date
thereof and (ii) outstanding Letter of Credit Obligations as of the last
Business Day of each month; PROVIDED, HOWEVER, that (i) upon the occurrence and
during the continuance of any Potential Default or Event of Default or (ii) for
the purpose of calculating fees payable under this Agreement or for other
purposes, such determination shall be made as often as the Administrative Agent
or the Required Letter of Credit Lenders may reasonably deem necessary.
ARTICLE 2
THE CREDITS
SECTION 2.01. TERM LOAN FACILITY. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Term
Lender agrees, severally and not jointly, to make a single Term Loan to the
Borrowers on the Effective Date in the amount of its Term Commitment. The Term
Commitments are not revolving in nature, and principal amounts of Term
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Loans repaid or prepaid may not be reborrowed. To the extent not due and payable
earlier, the Term Loans shall be due and payable on the Maturity Date.
SECTION 2.02. REVOLVING CREDIT FACILITY. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Revolving Credit Lender agrees, severally and not jointly, to make
Revolving Credit Loans to the Borrowers from time to time during the Revolving
Credit Period in amounts such that (i) the Revolving Credit Outstandings of such
Revolving Lender shall at no time exceed the amount of its Revolving Credit
Commitment and (ii) the Total Revolving Credit Outstandings shall at no time
exceed the Total Revolving Credit Commitment. Within the foregoing limits, the
Borrowers may borrow, pay or prepay and reborrow Revolving Loans hereunder
during the Revolving Period and subject to the terms, conditions and limitations
set forth herein. To the extent not due and payable earlier, the Revolving
Credit Loans shall be due and payable on the Maturity Date.
SECTION 2.03. SWINGLINE. (a) SWINGLINE ADVANCES. Subject to the terms
and conditions set forth in this Agreement and relying upon the representations
and warranties herein set forth, the Swingline Lender agrees (such agreement
being herein called the "SWINGLINE ADVANCE COMMITMENT") to make loans in Dollars
(the "SWINGLINE ADVANCES") to each and any Borrower from time to time during the
Revolving Credit Period. The Swingline Lender shall have no obligation to make
any Swingline Advance if and to the extent that (i) the aggregate principal
amount of Swingline Advances at any time outstanding would exceed the Swingline
Advance Committed Amount at such time, (ii) the Total Revolving Credit
Outstandings would exceed the Total Revolving Credit Commitment or (iii) the
Swingline Lender shall have determined in its sole discretion to terminate or
suspend the Swingline Advance Commitment and shall have so notified the Company
in writing at least two Business Days prior thereto.
The Swingline Lender's "SWINGLINE ADVANCE COMMITTED AMOUNT" shall be
equal to $7,500,000. Swingline Advances may be requested by the Company (acting
on behalf of the applicable Borrower) in any principal amount up to the
Swingline Advance Committed Amount.
Unless notified to the contrary by the Swingline Lender, borrowings
of the Swingline Advances may be made in a minimum amount of $100,000 and
multiples of $25,000 in excess thereof upon telephonic request made to the
Swingline Lender not later than 12:00 p.m., New York City time, on the Business
Day of the requested borrowing. Promptly after receipt of such a request for
borrowing, the Swingline Lender shall obtain telephonic verification from the
Administrative Agent that, giving effect to such request, availability for
Swingline Advances will exist under Section 2.03(a) (and such verification shall
be promptly
37
confirmed in writing by telecopier). Unless notified to the contrary by the
Swingline Lender, each repayment of a Swingline Advance shall be in an amount
which is an integral multiple of $25,000. If the Company (acting on behalf of
the applicable Borrower) instructs the Swingline Lender to debit its demand
deposit account at the Swingline Lender in the amount of any payment with
respect to a Swingline Advance, or the Swingline Lender otherwise receives
repayment, after 4:00 p.m., New York City time, on a Business Day, such payment
shall be deemed received on the next Business Day. The Swingline Lender shall
promptly notify the Administrative Agent of the outstanding Swingline Advances
each time there is a change therein.
(b) NATURE OF CREDIT. Within the limits of time and amount set forth
in this Section 2.03, and subject to the provisions of this Agreement, the
Borrowers may borrow, repay and reborrow Swingline Advances hereunder.
(c) SWINGLINE ADVANCE NOTE. To the extent requested by the Swingline
Lender, the joint and several obligation of each Borrower to repay the unpaid
principal amount of the Swingline Advances made to any Borrower by the Swingline
Lender and to pay interest thereon shall be evidenced in part by a promissory
note of the Borrowers to the Swingline Lender dated the Effective Date (the
"SWINGLINE ADVANCE NOTES") in substantially the form attached hereto as Exhibit
B, with the blanks appropriately filled, payable to the order of the Swingline
Lender in a face amount equal to $7,500,000.
(d) MATURITY. To the extent not due and payable earlier, each
Swingline Advance shall be due and payable on the earlier of (i) the seventh day
after such Swingline Advance is made to any Borrower hereunder or (ii) the
Maturity Date.
(e) INTEREST RATE. The applicable Borrower shall pay interest on the
unpaid principal amount of each Swingline Advance from the date of such Advance
until such principal amount is paid in full, payable on such dates, not more
frequently than monthly, as may be specified by the Swingline Lender and in any
event on the Maturity Date, at a fluctuating interest rate per annum equal to
the rate applicable to the Base Rate Portion of the Revolving Credit Loans, as
in effect from time to time. The Swingline Lender shall be responsible for
invoicing the Company (as agent for the applicable Borrower) for such interest.
(f) SWINGLINE ADVANCE PARTICIPATING INTERESTS. (i) GENERALLY. At the
discretion of the Swingline Lender at any time, on one Business Day's notice to
each Revolving Credit Lender, the Swingline Lender may require each Revolving
Credit Lender to purchase, acquire, accept and assume from the Swingline Lender,
without recourse to, or representation or warranty by, the Swingline Lender, an
undivided interest, in a proportion equal to such Lender's Pro Rata share, in
all of
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the Swingline Lender's rights and obligations in, to or under the Swingline
Lender's outstanding Swingline Advances, together with accrued and unpaid
interest thereon (such interest of each Lender being referred to herein as a
"SWINGLINE ADVANCE PARTICIPATING INTEREST").
On the date that any Purchasing Lender becomes a party to this
Agreement in accordance with Section 10.14 hereof, Swingline Advance
Participating Interests in any outstanding Swingline Advances held by the Lender
from which such Purchasing Lender acquired its interest hereunder shall be
proportionately reallotted between such Purchasing Lender and such transferor
Lender (and, to the extent such transferor Lender is the Swingline Lender, the
Purchasing Lender shall be deemed to have acquired a Swingline Advance
Participating Interest from such transferor Lender to such extent).
(ii) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Revolving Credit Lender hereby agrees that its
obligation to participate in each Swingline Advance in accordance
herewith, and its obligation to make the payments specified in
Section 2.03(f)(iii) hereof, are each absolute, irrevocable and
unconditional and shall not be affected by any event, condition or
circumstance whatsoever. The failure of any Lender to make any such
payment shall not relieve any other Lender of its funding obligation
hereunder on the date due, but no Lender shall be responsible for the
failure of any other Lender to meet its funding obligations
hereunder.
(iii) PAYMENT BY LENDERS ON ACCOUNT OF SWINGLINE ADVANCES. If the
Swingline Lender desires to sell Swingline Advance Participating
Interests to the Revolving Credit Lenders, the Swingline Lender will
promptly notify the Administrative Agent thereof (which notice may be
by telephone), and the Administrative Agent shall forthwith notify
each Revolving Credit Lender (which notice may be by telephone
promptly confirmed in writing) thereof. No later than the
Administrative Agent's close of business on the date such notice is
given by the Administrative Agent (if such notice is given by the
Administrative Agent before 12:00 p.m., New York City time, on such
date), each such Lender will pay to the Administrative Agent, for the
account of the Swingline Lender, in immediately available funds, an
amount equal to such Lender's Pro Rata share of the outstanding
principal amount of the Swingline Advances and accrued and unpaid
interest thereon. If and to the extent that any such Lender fails to
make such payment to the Swingline Lender on such date, such Lender
shall pay such amount on demand, together with interest, for the
Swingline Lender's own account, for each day from and including the
date of the Swingline Lender's payment to and including the date of
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repayment to the Swingline Lender (before and after judgment)
following rates per annum: (x) for each day from and including the
date of such payment by the Swingline Lender to and including the
second Business Day thereafter, at the Federal Funds Effective Rate
for such day, and (y) for each day thereafter, at the rate applicable
to the Swingline Advances for such day.
(iv) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after the
Swingline Lender has made a Swingline Advance and has received from
any Revolving Credit Lender such Lender's share of such Swingline
Advance, and the Swingline Lender receives any payment or makes any
application of funds on account of such Swingline Advance, the
Swingline Lender will pay on the same day as received or deemed to be
received to the Administrative Agent, for the account of such Lender,
such Lender's ratable share of such payment.
(v) RESCISSION. If any amount received by the Swingline Lender on
account of any Swingline Advance or interest thereon shall be
avoided, rescinded or otherwise returned or paid over by the
Swingline Lender for any reason at any time, whether before or after
the termination of this Agreement (or the Swingline Lender believes
in good faith that such avoidance, rescission, return or payment is
required, whether or not such matter has been adjudicated), each
Revolving Credit Lender will, promptly upon notice from the
Administrative Agent or the Swingline Lender, pay over to the
Administrative Agent for the account of the Swingline Lender the
portion of such amount received by it from the Swingline Lender.
(vi) EQUALIZATION. If any Revolving Credit Lender receives any
payment or makes any application on account of its Swingline Advance
Participating Interest, such Lender shall forthwith pay over to the
Swingline Lender, in Dollars and in like kind of funds received or
applied by it the amount in excess of such Lender's ratable share of
the amount so received or applied.
SECTION 2.04. LETTER OF CREDIT FACILITY.
Section 2.04.01. LETTERS OF CREDIT. (a) Subject to the terms and
conditions set forth herein (i) the LC Issuer agrees, in reliance upon the
agreements of the other Letter of Credit Lenders set forth in Section 2.04, (A)
from time to time on any Business Day during the Letter of Credit Availability
Period to Issue Letters of Credit for the account of any one or more of the
Borrowers, and to amend or renew Letters of Credit previously Issued by it, in
accordance with Section 2.04.02, and (B) to honor properly drawn drafts under
the Letters of Credit Issued
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by it; and (ii) the Letter of Credit Lenders severally agree to participate in
Letters of Credit Issued for the account of any one or more of the Borrowers;
PROVIDED that the LC Issuer shall not be obligated to Issue, and no Letter of
Credit Lender shall be obligated to participate in, any Letter of Credit if as
of the date of Issuance of such Letter of Credit (the "ISSUANCE DATE") (1) the
Dollar Equivalent of all Letter of Credit Obligations exceeds the aggregate
amount of the Letter of Credit Commitments or (2) if such Letter of Credit is a
Financial Letter of Credit, the Dollar Equivalent of all Letter of Credit
Obligations with respect to the Financial Letters of Credit exceeds the
Financial Letter of Credit Sublimit. Letters of Credit may be Issued in Dollars
or Offshore Currencies. Within the foregoing limits, and subject to the other
terms and conditions hereof, each Borrower's ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, such Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The LC Issuer shall not be under any obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the LC
Issuer from Issuing such Letter of Credit, or any Law applicable to
the LC Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the LC Issuer shall prohibit, or request that the LC Issuer refrain
from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the LC Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the LC Issuer is not otherwise compensated
hereunder) not in effect on the Effective Date, or shall impose upon
the LC Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the LC Issuer in good
xxxxx xxxxx material to it; or
(ii) the Issuance of such Letter of Credit would violate one or more
policies of the LC Issuer.
(c) The LC Issuer shall not Issue any Letter of Credit if:
(i) the LC Issuer has received written notice from the Required
Letter of Credit Lenders, the Administrative Agent or the Company, on
or prior to the Business Day prior to the requested date of Issuance
of such Letter of Credit, that one or more of the applicable
conditions contained in Article 4 is not then satisfied;
41
(ii) the expiry date or any renewed or extended expiry date of such
Letter of Credit is later than the Letter of Credit Limit Date; or
(iii) such Letter of Credit is denominated in a currency other than
Dollars or an Offshore Currency.
(d) EXISTING LETTERS OF CREDIT. On the Effective Date, without
further action by any party hereto, each Letter of Credit Lender that has issued
an Existing Letter of Credit shall be deemed to have granted to each other
Letter of Credit Lender, and each other Letter of Credit Lender shall be deemed
to have acquired from such issuer, a participation in each Existing Letter of
Credit equal to such Letter of Credit Lender's Letter of Credit Percentage of
(i) the aggregate amount available to be drawn under such Existing Letter of
Credit and (ii) the aggregate amount of any outstanding reimbursement
obligations in respect thereof. With respect to each Existing Letter of Credit
(i) if the relevant issuer has heretofore sold a participation therein to a
Lender, such issuer and Letter of Credit Lender agree that such participation
shall be automatically canceled on the Effective Date and (ii) if the relevant
Letter of Credit Lender has heretofore sold a participation therein to any bank
or financial institution that is not a Lender, such issuer shall procure the
termination of such participation on or prior to the Effective Date. On and
after the Effective Date, each Existing Letter of Credit shall be a Letter of
Credit issued hereunder.
Section 2.04.02. ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF
CREDIT. (a) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the applicable Borrower delivered to the LC Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of such
Borrower. Such Letter of Credit Application must be received by the LC Issuer
and the Administrative Agent not later than 12:00 p.m., New York City time, at
least two Business Days (or such later date and time as the LC Issuer may agree
in a particular instance in its sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the LC Issuer: (i) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (ii) the amount thereof; (iii) the expiry date thereof; (iv) the
name and address of the beneficiary thereof; (v) the documents to be presented
by such beneficiary in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (vii) such other matters as the LC Issuer may reasonably
require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in
42
form and detail satisfactory to the LC Issuer (w) the Letter of Credit to be
amended; (x) the proposed date of amendment thereof (which shall be a Business
Day); (y) the nature of the proposed amendment; and (z) such other matters as
the LC Issuer may reasonably require.
(b) Promptly after receipt of any Letter of Credit Application, the
LC Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the applicable Borrower and, if not, the LC Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the LC
Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then, subject to
the terms and conditions hereof, the LC Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrowers or enter into the
applicable amendment, as the case may be, in each case in accordance with the LC
Issuer's usual and customary business practices. Immediately upon the issuance
of each Letter of Credit, each Letter of Credit Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the LC Issuer a
risk participation in such Letter of Credit in an amount equal to the product of
such Letter of Credit Lender's Pro Rata share TIMES the amount of such Letter of
Credit.
(c) The LC Issuer and the Letter of Credit Lenders agree that,
while a Letter of Credit is outstanding and prior to the Letter of Credit Limit
Date, at the option of the applicable Borrower and upon the written request of
the Company (acting on behalf of the applicable Borrower) received by the LC
Issuer (with a copy sent by the Company to the Administrative Agent) at least
four Business Days (or such shorter time as the LC Issuer and the Administrative
Agent may agree in a particular instance in their sole discretion) prior to the
proposed date of notification of renewal, the LC Issuer shall be entitled, upon
notification to the Administrative Agent, to authorize the renewal of any Letter
of Credit issued by it. Each such request for renewal of a Letter of Credit
shall be made by facsimile, confirmed promptly in an original writing, in the
form of a Letter of Credit Amendment Application, and shall specify in form and
detail reasonably satisfactory to the LC Issuer: (i) the Letter of Credit to be
renewed; (ii) the proposed date of renewal of such Letter of Credit (which shall
be a Business Day); (iii) the revised expiry date of such Letter of Credit
(which shall be no later than the fifth Business Day prior to the Maturity
Date); and (iv) such other matters as the LC Issuer may reasonably require. The
LC Issuer shall be under no obligation to renew any Letter of Credit if the LC
Issuer would have no obligation at such time to Issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement. The LC Issuer
shall not renew any Letter of Credit if: (A) the LC Issuer would not be
permitted to Issue or amend such Letter of Credit in its renewed form under the
terms of this Agreement; or (B) the beneficiary of such
43
Letter of Credit does not accept the proposed renewal of such Letter of Credit.
If any outstanding Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the LC Issuer that
such Letter of Credit shall not be renewed, and if at the time of renewal the LC
Issuer would be entitled to authorize the renewal of such Letter of Credit in
accordance with this Section 2.04.02(c) upon the request of the Company (acting
on behalf of the applicable Borrower) but the LC Issuer shall not have received
any Letter of Credit Amendment Application from the Company with respect to such
renewal or other written direction by the Company with respect thereto, and the
LC Issuer shall not have received notice from the Administrative Agent that such
Letter of Credit shall not be renewed, the LC Issuer shall allow such Letter of
Credit to renew, and the Borrowers and the Lenders hereby authorize such
renewal, and, accordingly, the LC Issuer shall be deemed to have received a
Letter of Credit Amendment Application from the Company (acting on behalf of the
applicable Borrower) requesting such renewal.
(d) The LC Issuer may, at its election (or as required by the
Administrative Agent at the direction of the Required Letter of Credit Lenders),
deliver any notices of termination or other communications to any applicable
Letter of Credit beneficiary or transferee, and take any other action as
necessary or appropriate, at any time and from time to time, in order to cause
the expiry date of such Letter of Credit to be a date not later than the Letter
of Credit Limit Date.
(e) This Agreement shall control in the event of any conflict with
any Letter of Credit Related Document (other than any Letter of Credit).
(f) Promptly following its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect to the
beneficiary thereof, the LC Issuer will also deliver to the applicable Borrower
and the Administrative Agent a true and complete copy of such Letter of Credit
or amendment.
Section 2.04.03. RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) Immediately upon the Issuance of each Letter of Credit, each Letter of
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the LC Issuer a participation in such Letter of Credit
and each drawing thereunder in an amount equal to the product of (i) such
Lender's Letter of Credit Percentage times (ii) the maximum amount available to
be drawn under such Letter of Credit and the amount of such drawing,
respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the LC Issuer will promptly
notify the Company and the Administrative Agent. The applicable Borrower shall
reimburse
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the LC Issuer prior to 3:00 p.m. (New York City time), (i) on each date on which
any amount is paid by the LC Issuer under any applicable Letter of Credit (each
such date, an "HONOR DATE"), in Dollars in the Dollar Equivalent of an amount
equal to the amount so paid by the LC Issuer, if the Administrative Agent
notifies the Company on or prior to the Business Day preceding the Honor Date
that the payment under such Letter of Credit will be made on the Honor Date and
(ii) on the Business Day following the Honor Date, in Dollars in the Dollar
Equivalent of an amount equal to the amount so paid by the LC Issuer, plus
interest thereon at the rate applicable to the Base Rate Portion of the
Revolving Credit Loans, from and including the Honor Date to but excluding the
date of such reimbursement, if the Administrative Agent notifies the Company on
the Honor Date that the payment under such Letter of Credit is required on the
Honor Date. Each Borrower shall be jointly and severally obligated for such
reimbursement obligation together with interest thereon.
(c) If the applicable Borrower fails to reimburse the LC Issuer for
the full amount of any drawing under any Letter of Credit by 3:00 p.m. (New York
City time) on the Business Day on which such reimbursement is required as set
forth above, the LC Issuer will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Letter of Credit Lender and the
Company thereof. Each Letter of Credit Lender shall upon any notice pursuant to
Section 2.04.03(b) make available to the Administrative Agent for the account of
the LC Issuer an amount in Dollars and in immediately available funds equal to
its Pro Rata share of the Dollar Equivalent of the amount of the drawing with
respect to a Letter of Credit. If any Letter of Credit Lender so notified fails
to make available to the Administrative Agent for the account of the LC Issuer
the amount of such Lender's Pro Rata share of the amount of such drawing by no
later than 3:00 p.m. (New York City time) on the Business Day on which it
received such notice pursuant to Section 2.04.03(b), then interest shall accrue
on such Lender's obligation to make such payment, from such Business Day to the
date such Lender makes such payment, at a rate per annum equal to the Federal
Funds Effective Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Letter of Credit Lender to effect
such payment on such date shall not relieve such Lender from its obligations
under this Section 2.04.03. Each Letter of Credit Lender's obligations under
this Section 2.04.03 shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the LC
Issuer, any Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Potential Default, an Event of Default or a
Material Adverse Effect or (iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
45
Section 2.04.04. REPAYMENT OF PARTICIPATIONS. (a) Upon (and only
upon) receipt by the Administrative Agent for the account of the LC Issuer of
immediately available funds from the applicable Borrower or any other Borrower
(i) in reimbursement of any payment made by the LC Issuer under a Letter of
Credit with respect to which any Letter of Credit Lender has paid the
Administrative Agent for the account of the LC Issuer for such Lender's
participation in such Letter of Credit pursuant to Section 2.04.03 or (ii) in
payment of interest thereon, the Administrative Agent will promptly pay to each
Letter of Credit Lender, in like funds as those received by the Administrative
Agent for the account of the LC Issuer, the amount of such Lender's Pro Rata
share of such funds, and the LC Issuer shall receive the amount of the Pro Rata
share of such funds of any Letter of Credit Lender that did not so pay the
Administrative Agent for the account of the LC Issuer.
(b) If the Administrative Agent or the LC Issuer is required at any
time to return to any Borrower, or to a trustee, receiver, liquidator or
custodian, or to any official in any insolvency proceeding, any portion of any
payment made by such Borrower to the Administrative Agent for the account of the
LC Issuer pursuant to Section 2.04.04(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, to the extent any Letter of
Credit Lender received its Pro Rata share of such amount pursuant to Section
2.04.04(a), such Lender shall, on demand of the Administrative Agent, forthwith
return to the Administrative Agent or the LC Issuer the amount of its Pro Rata
share of any amount so returned by the Administrative Agent or the LC Issuer
together with interest thereon from the date such demand is made to the date
such amount is returned by such Lender to the Administrative Agent or the LC
Issuer, at a rate PER ANNUM equal to the Federal Funds Effective Rate in effect
from time to time.
Section 2.04.05. ROLE OF THE LC ISSUER. (a) Each Letter of Credit
Lender and each Borrower agree that, in paying any drawing under a Letter of
Credit, the LC Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.
(b) None of the LC Issuer, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of the LC Issuer shall be
liable to any Letter of Credit Lender for: (i) any action taken or omitted in
connection herewith at the request or with the approval of the Letter of Credit
Lenders (including the Required Letter of Credit Lenders, as applicable); (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any Letter of Credit Related Document.
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(c) Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED that this assumption is not intended to, and shall not,
preclude any Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or any other agreement. None of the
LC Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees of the LC Issuer shall be liable or responsible for
any of the matters described in clauses (i) through (vii) of Section 2.04.06;
PROVIDED that, anything in such clauses to the contrary notwithstanding, a
Borrower may have a claim against the LC Issuer, and such LC Issuer may be
liable to such Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by such Borrower
which such Borrower proves were caused by the LC Issuer's willful misconduct,
gross negligence or bad faith or the LC Issuer's bad faith, willful or grossly
negligent failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the LC Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the LC Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
Section 2.04.06. OBLIGATIONS ABSOLUTE. The obligations of each and
any of the Borrowers under this Agreement and any Letter of Credit Related
Document to reimburse the LC Issuer for each drawing under each Letter of Credit
shall be joint and several, absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement and each such
other Letter of Credit Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this Agreement or any
Letter of Credit Related Document;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of any Borrower in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the Letter of Credit Related
Documents;
(iii) the existence of any claim, counterclaim, set-off, defense or
other right that any Borrower may have at any time against any
beneficiary
47
or any transferee of such Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the LC
Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the Letter of
Credit Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(v) any payment by the LC Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the LC Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of any Borrower in respect
of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Borrower or a guarantor.
Each Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with such Borrower's instructions or other irregularity,
such Borrower will immediately notify the LC Issuer. Each Borrower shall be
conclusively deemed to have waived any such claim against the LC Issuer and its
correspondents unless such notice is given as aforesaid.
Section 2.04.07. CASH COLLATERAL PLEDGE. (a) If any Letter of Credit
remains outstanding and partially or wholly undrawn as of the date of expiration
or termination of the Letter of Credit Commitments, then the Borrowers, as their
joint and several obligation, shall immediately Cash Collateralize the Letter of
48
Credit Obligations in an amount equal to the maximum amount then available to be
drawn under all Letters of Credit.
(b) If, on any day, the Dollar Equivalent of all Letter of Credit
Obligations exceeds the aggregate amount of the Letter of Credit Commitments as
then in effect, the Administrative Agent shall immediately notify the Company
and the Borrowers shall on the Business Day following such day Cash
Collateralize the Letter of Credit Obligations to the extent of such excess.
Section 2.04.08. UNIFORM CUSTOMS AND PRACTICE. Unless otherwise
expressly agreed by the LC Issuer and the applicable Borrower when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply
to each standby Letter of Credit, and (iii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance shall
apply to each commercial Letter of Credit.
SECTION 2.05. MAKING OF LOANS; NOTES; LOAN ACCOUNTS. (a) Whenever a
Borrower desires that the applicable Lenders make Loans (whether Revolving
Credit Loans or Swingline Advances or, in the case of the Effective Date, Term
Loans), the Company (acting on behalf of the applicable Borrower) shall provide
Standard Notice to the Administrative Agent setting forth the following
information (a separate notice being required for each such type of Loans):
(i) Whether the proposed Loans are Term Loans, Revolving
Credit Loans or Swingline Advances;
(ii) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(iii) In the case of proposed Revolving Credit Loans, the aggregate
principal amount of such proposed Loans, which shall be the sum of
the principal amounts selected pursuant to clause (v) of this Section
2.05(A), and which shall be at least, in the case of the Euro-Rate
Portion of such Loans, $5,000,000 and, in the case of the Base Rate
Portion of such Loans, $1,000,000, or in either case an integral
multiple of $1,000,000 in excess thereof or in any case the aggregate
amount of the unused Revolving Credit Commitments;
49
(iv) In the case of proposed Swingline Advances, the aggregate
principal amount of such proposed Swingline Advances, which shall be
at least $100,000 and integral multiples of $25,000 in excess
thereof or the amount of the unused Swingline Advance Commitment;
(v) In the case of proposed Syndicated Loans, the interest rate
Option or Options selected in accordance with Section 2.06(A) hereof
and the principal amounts selected in accordance with Section
2.06(D) hereof of the Base Rate Portion and each Funding Segment of
the Euro-Rate Portion, of such proposed Loans;
(vi) In the case of proposed Syndicated Loans, with respect to each
such Funding Segment of such proposed Loans, the Funding Period to
apply to such Funding Segment, selected in accordance with Section
2.06(C) hereof; and
(vii) The applicable Borrower if a Borrower other than itself.
Standard Notice having been so provided, the Administrative Agent shall promptly
notify each applicable Lender of the information contained therein and of the
amount of such Lender's Loan, calculated in accordance with Section 2.13. Unless
any applicable condition specified in Article 4 hereof has not been satisfied,
on the date specified in such Standard Notice each applicable Lender shall make
the proceeds of its Loan available to the Administrative Agent at the
Administrative Agent's Office, no later than 11:00a.m., New York City time, in
funds immediately available at such Office. The Administrative Agent will make
the funds so received available to the applicable Borrower in funds immediately
available at the Administrative Agent's Office. If and to the extent that the
Administrative Agent does not make such funds available to such Borrower on the
date specified in such Standard Notice the Administrative Agent shall pay to
each Lender interest on the amount made available by such Lender at the Federal
Funds Effective Rate for each day until either (x) the date such funds are made
available to such Borrower or (y) the date such amounts are returned to such
Lender.
(b) To the extent so requested by any Lender through the
Administrative Agent, the joint and several obligation of each Borrower to repay
the unpaid principal amount of the Syndicated Loans of any Class made to any
Borrower by such Lender and to pay interest thereon shall be evidenced in part
by promissory notes of the Borrowers, one to such Lender, dated the Effective
Date in substantially the form of Exhibit A, with the blanks appropriately
filled, payable to the order of such Lender.
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(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including, without
limitation, the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement. The entries made in the accounts
of each Lender maintained pursuant hereto shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; PROVIDED that the failure of any
Lender to maintain any such account, or any error therein, shall not in any
manner effect the joint and several obligation of any Borrower to repay (with
applicable interest) the Loans made to any of the Borrowers by such Lender in
accordance with the terms of this Agreement.
SECTION 2.06. INTEREST RATES. (a) OPTIONAL BASES OF BORROWING. The
unpaid principal amount of the Syndicated Loans shall bear interest for each day
from and including the date on which funds are made available to the applicable
Borrower by the Administrative Agent and to but excluding the date of repayment
on one or more bases selected by the Company (acting on behalf of the applicable
Borrower) from the two interest rate options set forth below. Subject to the
provisions of this Agreement, the Company (acting on behalf of the applicable
Borrower) may select different options to apply simultaneously to different
Portions of the Syndicated Loans and may select different Funding Segments to
apply simultaneously to different parts of the Euro-Rate Portion of the
Syndicated Loans. Each selection of a rate Option shall apply separately and
without overlap to the Syndicated Loans of the applicable Class. The aggregate
number of Funding Segments applicable to the Euro-Rate Portions of the
Syndicated Loans at any time shall not exceed ten unless otherwise permitted by
the Administrative Agent.
(i) BASE RATE OPTION: A rate per annum (computed on the basis of a
year of 365 or 366 days and actual days elapsed) for each day equal
to the Base Rate for such day plus the Applicable Margin for such
day. The "BASE RATE" shall mean for any day a fluctuating rate per
annum equal to the higher of (x) the Federal Funds Rate plus 1/2 of
1% and (y) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime rate."
The "prime rate" is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day
specified in the public announcement of such change.
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(ii) EURO-RATE OPTION: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day during the applicable Euro-Rate
Funding Period equal to the Euro-Rate for such day plus, in each
case, the Applicable Margin for Euro-Rate Option for such day.
"EURO-RATE" for any day, as used herein, shall mean for each Funding
Segment of the Euro-Rate Portion corresponding to a proposed or
existing Euro-Rate Funding Period (x) the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate screen (or any successor
thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Euro-Rate Funding Period) with a term equivalent to
such Euro-Rate Funding Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Euro-Rate Funding Period, or (y) if the rate referenced in the
preceding clause (x) does not appear on such page or service or such
page or service shall not be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the offered
rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Euro-Rate Period) with
a term equivalent to such Euro-Rate Funding Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Euro-Rate Funding Period, or (z) if the rates
referenced in the preceding clauses (x) and (y) are not available,
the rate per annum determined by the Administrative Agent as the rate
of interest at which deposits in Dollars for delivery on the first
day of such Euro-Rate Funding Period in same day funds in the
approximate amount of the Euro-Rate Portion being made, continued or
converted by Bank of America and with a term equivalent to such
Euro-Rate Funding Period would be offered by Bank of America's London
Branch to major banks in the London interbank eurodollar market at
their request at approximately 4:00 p.m. (London time) two Business
Days prior to the first day of such Euro-Rate Funding Period.
The Administrative Agent shall give prompt notice to the
Company and to the applicable Lenders of the Euro-Rate determined in
accordance with the definition of the Euro-Rate, which determination
shall be conclusive if made in good faith.
(b) APPLICABLE MARGINS. The "APPLICABLE MARGIN" with respect to the
Base Rate Option and the Euro-Rate Option shall be determined in accordance with
the definition of "Applicable Margin".
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(c) FUNDING PERIODS. At any time when the Company (acting on behalf
of the applicable Borrower) shall select, convert to or renew the Euro-Rate
Option to apply to any part of the Loans, the Company (acting on behalf of the
applicable Borrower) shall specify one or more periods (the "FUNDING PERIODS")
during which each such Option shall apply, such Funding Periods being one, two
or three months ("EURO-RATE FUNDING PERIOD"); PROVIDED that:
(i) Each Euro-Rate Funding Period shall begin on a Business Day, and
the term "month", when used in connection with a Euro-Rate Funding
Period, shall be construed in accordance with prevailing practices in
the interbank eurodollar market at the commencement of such Euro-Rate
Funding Period, as determined in good faith by the Administrative
Agent (which determination shall be conclusive); and
(ii) The Company (acting on behalf of the Borrowers) may not select a
Funding Period that would end after the Maturity Date.
(d) TRANSACTIONAL AMOUNTS. Every selection of, conversion from,
conversion to or renewal of an interest rate option and every voluntary payment
or prepayment of any Loans of any Class shall be in a principal amount such that
after giving effect thereto the aggregate principal amount of the Base Rate
Portion of such Loans, or the aggregate principal amount of each Funding Segment
of the Euro-Rate Portion of such Loans, shall be at least $1,000,000.
(e) EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a Euro-Rate would otherwise be set, the
Administrative Agent (in the case of clause (A) or (B) below) shall
have determined in good faith (which determination shall be
conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(ii) at any time any Lender shall have determined in good faith
(which determination shall be conclusive absent manifest error) that
the making, maintenance or funding of any part of the Euro-Rate
Portion has been made impracticable or unlawful by compliance by such
Lender or a Notional Euro-Rate Funding Office in good faith with any
Law or guideline or interpretation or administration thereof by any
Governmental
53
Authority charged with the interpretation or administration thereof
or with any request or directive of any such Governmental Authority
(whether or not having the force of law);
then, and in any such event, the Administrative Agent or such Lender, as the
case may be, may notify the Company of such determination (and any Lender giving
such notice shall notify the Administrative Agent). Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given), the obligation of each of the Lenders, in the case of clause (i)
above, or such Affected Lender, in the case of clause (ii) above, to allow the
Company (acting on behalf of the applicable Borrower) to select, convert to or
renew the related Euro-Rate Option shall be suspended until the Administrative
Agent or such Lender, as the case may be, shall have later notified the Company
(and any Lender giving such notice shall notify the Administrative Agent) of the
Administrative Agent's or such Lender's determination in good faith (which
determination shall be conclusive absent manifest error) that the circumstance
giving rise to such previous determination no longer exist.
If any Lender notifies the Company of a determination under
subsection (ii) of this Section 2.06(E), the Euro-Rate Portion of the Loans of
such Lender (the "AFFECTED LENDER") shall, subject to Section 2.14(B) hereof,
automatically be converted to a Base Rate Option as of the last day of the then
current Funding Period with respect to such Loans (in the case of a
determination that the making, maintenance or funding of any Euro-Rate Portion
of such Loans is impracticable) and the last day on which the making,
maintenance or funding of any Euro-Rate Portion of such Loans is not unlawful
(in the case of a determination that the making, maintenance or funding of any
Euro-Rate Portion of such Loans is unlawful) and accrued interest thereon shall
be due and payable on such date.
If at the time the Administrative Agent or an Affected Lender makes a
determination under subsection (i) or (ii) of this Section 2.06(E), as the case
may be, the Company (acting on behalf of the applicable Borrower) previously has
notified the Administrative Agent that it wishes to select, convert to or renew
the Euro-Rate Option with respect to any proposed Loans but such Loans have not
yet been made, such notification shall be deemed to provide for selection of,
conversion to or renewal of the Base Rate Option instead of the Euro-Rate Option
with respect to such Loans or, in the case of a determination by an Affected
Lender, such Loans only of such Affected Lender.
SECTION 2.07. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS. (a)
CONVERSION OR RENEWAL. Subject to the provisions of Section 2.14(B) hereof, the
-------
Company (acting on behalf of the applicable Borrower) may convert any part of
the Syndicated Loans made to a Borrower from one interest rate Option to the
54
other interest rate Option and may renew the Euro-Rate Option as to any Funding
Segment of the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option as to the
Funding Segment corresponding to such expiring Funding Period.
Whenever a Borrower desires to convert or renew any interest rate
Option or Options, the Company (acting on behalf of the applicable Borrower)
shall provide to the Administrative Agent Standard Notice setting forth the
following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.06(d) hereof of the Base Rate Portion and each Funding Segment of
the Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance with
Section 2.06(a) hereof and the principal amounts selected in
accordance with Section 2.06(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section
2.06(c) hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in
such Standard Notice, interest shall be calculated upon the principal amount of
the Loans as so converted or renewed.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the Company
of conversion or renewal in the circumstances described in Section 2.07(A)(II)
hereof, any part of any Euro-Rate Portion for which such notice is not received
shall be converted automatically to the Base Rate Option on the last day of the
expiring Funding Period.
SECTION 2.08. INTEREST PAYMENT DATES. Interest on the Base Rate
Portion of each Class of Loans shall be due and payable on each applicable
Regular
55
Payment Date. Interest on each Funding Segment of the Euro-Rate Portion of each
Class of Loans shall be due and payable on the last day of the corresponding
Euro-Rate Funding Period. After maturity of any part of the Loans (by
acceleration or otherwise), interest on such part of the Loans shall be due and
payable on demand.
SECTION 2.09. FEES. (a) COMMITMENT FEE. The Company shall pay to the
Administrative Agent for the account of each Letter of Credit Lender and
Revolving Credit Lender a fee (the "COMMITMENT FEE") for each day from and
including the Effective Date and to but not including the date of termination of
all Commitments of the applicable Class, on the unused amount of such Lender's
Letter of Credit Commitment or Revolving Credit Commitment, as the case may be,
on such day (based upon a year of 360 days and actual days elapsed) at a rate of
0.50% per annum; it being understood that, for purposes of computing Commitment
Fees with respect to Revolving Credit Commitments, a Lender's Revolving Credit
Commitment will be deemed to be used to the extent of its Revolving Credit
Loans, and Swingline Advances will be disregarded. Commitment Fees shall be due
and payable for the preceding period for which such fees have not been paid on
each applicable Regular Payment Date and on the date of termination of all
Commitments of the applicable Class.
(b) OTHER FEES. (i) The Company shall pay to each Agent an agency
fee and other fees at the times and in the amounts previously agreed upon among
the Agents and the Company.
(ii) The Company shall pay to each Lender an amendment fee in the
amount of 0.75% of the sum of such Lender's Term Commitment,
Revolving Credit Commitment and Letter of Credit Commitment on the
Effective Date. One-half of such fee (the "INITIAL FEE PAYMENT")
shall be paid on each of (A) the date that the Administrative Agent
shall have received from each Lender and each Agent unconditional
(except as to the occurrence of the Effective Date) executed
counterparts of this Agreement and (B) the Effective Date. Once paid,
the fees payable hereunder or any part thereof (including the Initial
Fee Payment) shall not be refundable under any circumstances,
regardless of whether the Effective Date occurs. This subsection
(b)(ii) shall become effective, notwithstanding anything to the
contrary contained in Section 4.01, upon the receipt by the
Administrative Agent of the signature pages referred to above, and
upon receipt by the Administrative Agent of the Initial Fee Payment,
such signature pages shall not be revocable unless the Effective Date
shall not have occurred at or prior to the deadline specified in
Section 4.01.
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(c) LETTER OF CREDIT FEE. The Company and each Borrowing Subsidiary
(if any) for whose account such Letter of Credit was issued, jointly and
severally, shall pay to the Administrative Agent for Pro Rata distribution to
each Letter of Credit Lender a fee in Dollars in respect of each Letter of
Credit Issued hereunder (the "LETTER OF CREDIT FEE") for the period from and
including the date of Issuance of such Letter of Credit to but not including the
termination of such Letter of Credit, computed at a rate per annum (based upon a
year of 360 days and actual days elapsed) equal to (i) in the case of Financial
Letters of Credit, the Applicable Margin for the Euro-Rate Option for Revolving
Credit Loans, and (ii) in the case of Performance Letters of Credit,
three-fourths (3/4) of the Applicable Margin for the Euro-Rate Option for
Revolving Credit Loans, as in effect from time to time on the Dollar Equivalent
of the stated undrawn amount of such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable in arrears on each applicable Regular Payment Date
and upon the first day on or after the termination of the Letter of Credit
Commitments upon which no Letters of Credit remain outstanding.
(d) FRONTING FEE. The Company and each Borrowing Subsidiary (if any)
for whose account such Letter of Credit was issued, jointly and severally, shall
pay to the LC Issuer, for its account, a fronting fee in Dollars in respect of
each Letter of Credit issued by the LC Issuer hereunder for the period from and
including the date of Issuance of such Letter of Credit to but not including the
termination of such Letter of Credit computed at a rate of 0.25% per annum
(based upon a year of 360 days and actual days elapsed) on the Dollar
Equivalent, of the undrawn stated amount of such Letter of Credit; PROVIDED that
no fronting fees shall be payable with respect to any Existing Letters of Credit
which were not issued pursuant to the Previous Credit Agreement.
(e) ADMINISTRATIVE CHARGE. The Company and each Borrowing Subsidiary
(if any) for whose account such Letter of Credit was issued, jointly and
severally, shall pay to the LC Issuer, upon each drawing under, Issuance of, or
amendment to, any Letter of Credit issued by the LC Issuer, such amount as shall
at the time of such event be the standard administrative charge which the LC
Issuer is generally imposing in connection with such occurrence with respect to
letters of credit.
SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Letter of Credit Commitments, the Revolving Credit
Commitments and the Swingline Advance Commitment shall be automatically and
permanently terminated on the Maturity Date. The Term Commitments shall be
automatically and permanently terminated on the Effective Date immediately after
the Term Loans are made. The Commitments are also subject to reduction or
termination as set forth in Sections 2.12 and 7.02.
57
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent (a copy of which the Administrative
Agent shall promptly provide to each applicable Lender), the Company may at any
time in whole permanently terminate, or from time to time in part permanently
reduce, the unused portion of Revolving Credit Commitments or the Letter of
Credit Commitments; PROVIDED, HOWEVER, that (i) each partial reduction shall be
in an integral multiple of $1,000,000 and (ii) no such reduction or termination
of the Revolving Credit Commitments shall be permitted so long as any Term Loans
are outstanding.
(c) Each reduction in the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments of
such Class. The Borrowers shall pay to the Administrative Agent for the account
of the Lenders of the applicable Class, on the date of each termination or
reduction of the Commitments after the Effective Date, accrued Commitment Fees
on the amounts of the Commitments so terminated or reduced accrued through the
date of such termination or reduction.
SECTION 2.11. PREPAYMENTS GENERALLY. Whenever a Borrower desires to,
or is required to, prepay any part of its Loans, the Company (acting on behalf
of the applicable Borrower) shall provide Standard Notice to the Administrative
Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(b) The total principal amount of such prepayment, which shall be
the sum of the principal amounts selected pursuant to clause (c) of this Section
2.11; and
(c) The Class of Loans to be prepaid and the principal amounts
selected in accordance with Section 2.06(d) hereof of the Base Rate Portion and
each part of each Funding Segment of the Euro-Rate Portion to be prepaid.
SECTION 2.12. PREPAYMENTS, ETC. (a) OPTIONAL PREPAYMENTS. Each
Borrower shall have the right at its option from time to time to prepay its
Syndicated Loans and Swingline Advances in whole or part without premium or
penalty (subject, however, to Section 2.14(b) hereof).
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(b) MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS.
(i) Subject to paragraph (iii) below, on the ninetieth day following
the end of each fiscal year of the Company, the Borrowers shall
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reduce the aggregate amount of the Credit Exposures by an amount
equal to 50% of Excess Cash Flow for such fiscal year (or, in the
case of the first fiscal year ending after the Effective Date, 50% of
Excess Cash Flow for the final two fiscal quarters of such fiscal
year taken as one period).
(ii) Subject to paragraph (iii) below, within two Business Days (or
15 Business Days in the case of a Foreign Subsidiary) after receipt
by the Company or any Subsidiary of Net Cash Proceeds in respect of
any Prepayment Event, the Borrowers shall reduce the aggregate amount
of the Credit Exposures in an amount equal to 50% of such Net Cash
Proceeds. Each such reduction shall be required to be made on a date
designated by the Company by notice to the Administrative Agent in
accordance with Section 2.11 and in any event no later than the
second Business Day (or 15th Business Day, as applicable) following
the date of receipt of such Net Cash Proceeds (or, in the case of
receipt of Major Casualty Proceeds, the date of termination of the
applicable reinvestment period); PROVIDED that if the Net Cash
Proceeds in respect of any Prepayment Event constituting a Debt
Incurrence or an Equity Issuance are less than $1,500,000, no such
reduction shall be required until the amount of such Net Cash
Proceeds, together with the amount of all other similar Net Cash
Proceeds in respect of which no reduction under this subsection shall
have theretofore been made, are equal to at least $1,500,000.
(iii) Notwithstanding the foregoing, the Borrowers shall not be
required to comply with paragraphs (i) and (ii) above with respect
to the first $77,000,000 of Excess Cash Flow and Net Cash Proceeds
received by the Company or any Subsidiary after May 9, 2002.
(iv) Within two Business Days of the occurrence of any Prepayment
Event (or ten Business Days in the case of a Prepayment Event
involving a Foreign Subsidiary), the Borrower shall deliver to the
Administrative Agent a calculation in reasonable detail of the Net
Cash Proceeds of such Prepayment Event, in form and scope reasonably
satisfactory to the Administrative Agent and with such further detail
as the Administrative Agent may reasonably request.
(c) APPLICATION OF REDUCTIONS. The amounts of reductions in Credit
Exposures required pursuant to Section 2.12(b) shall be applied in the following
order or priority:
(i) for so long as any Term Loans remain outstanding, to prepayment
of the Term Loans until the same shall have been prepaid in full; and
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(ii) following repayment or prepayment in full of the Term
Loans:
(A) In the case of Excess Cash Flow or receipt of Net
Cash Proceeds of a Debt Incurrence, an Equity Issuance, an
Asset Sale of assets other than Restricted Collateral or a
Major Casualty Proceeds in respect of an asset other than
Restricted Collateral, (x) FIRST, to reduce the Revolving
Credit Commitments and prepay any Revolving Credit Loans
outstanding in excess of the Revolving Credit Commitments
as so reduced and (y) SECOND, to Cash Collateralize the
Letter of Credit Commitments (whether used or unused),
subject to Section 2.12(d); and
(B) In the case of receipt of Net Cash Proceeds of an
Asset Sale of Restricted Collateral or of Major Casualty
Proceeds in respect of Restricted Collateral, (x) FIRST, to
Cash Collateralize the Letter of Credit Commitments
(whether used or unused); and (y) SECOND, to reduce the
Revolving Credit Commitments and prepay any Revolving
Credit Loans outstanding in excess of the Revolving Credit
Commitments as so reduced; PROVIDED that a ratable portion
(based on the aggregate Credit Exposures of the Revolving
Credit Lenders and the outstanding principal amount of the
Senior Notes) of the Net Cash Proceeds that are allocable
pursuant to this clause (B)(y) shall be applied promptly to
purchase and/or cash collateralize the Senior Notes.
(d) COMPANY ELECTION. The Company (acting on behalf of the
Borrowers) may elect not to Cash Collateralize the Letter of Credit Commitments
pursuant to subsection (c)(ii)(A) above to the extent such Letter of Credit
Commitments are unused; PROVIDED that it shall be a condition to any subsequent
utilization of the Letter of Credit Commitments that the Letter of Credit
Outstandings be Cash Collateralized to the extent of the lesser of (i) the full
amount thereof and (ii) the amount thereof which would have been Cash
Collateralized but for this subsection (d).
SECTION 2.13. PRO RATA TREATMENT. (a) CERTAIN DEFINITIONS. As used
in this Agreement, the following term has the meaning indicated:
"PRO RATA" shall mean from or to each Lender: (i) in the case of
payments of fees, reductions pursuant to Section 2.10 or 2.12 hereof of the
Commitments, payments on account of Swingline Advance Participating Interests
under Section 2.03(f)(i) hereof, participations in the Letter of Credit
Obligations pursuant to
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Section 2.04 hereof ratably in accordance with such Lender's Commitment of the
relevant Class; (ii) in the case of payments of principal of and interest on,
and conversions and renewals of interest rate options with respect to, any
particular Funding Segments, ratably in accordance with such Lender's percentage
share of such Funding Segment; (iii) in the case of payments of principal and
conversions and renewals of interest rate options with respect to, the Base Rate
Portion of some or all of the Loans, ratably in accordance with such Lender's
percentage share of such Base Rate Portion; (iv) in the case of payments of
interest for any day with respect to the Base Rate Portion of some of all of the
Loans, ratably in accordance with such Lender's percentage share of such Base
Rate Portion on such day and (v) in the case of indemnification payments under
Section 8.07 hereof, ratably in accordance with such Lender's aggregate Credit
Exposure.
(b) MAKING OF SYNDICATED LOANS. Syndicated Loans shall be made by
the Lenders ratably in accordance with their respective Commitments of the
applicable Class.
(c) SEVERAL OBLIGATIONS. The failure of any Lender to make a Loan
shall not relieve any other Lender of its obligation to lend hereunder, but
neither any Agent nor any Lender shall be responsible for the failure of any
other Lender to make a Loan.
SECTION 2.14. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES. (a)
INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES, RESERVES, CAPITAL
ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or change therein or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) adopted or made after the date hereof:
(i) subjects any Lender or any Notional Euro-Rate Funding Office or
the LC Issuer to any tax or changes the basis of taxation, to the
extent such tax or change relates to the Euro-Rate Portion of any
Loans, the Letters of Credit, participations therein or payments by
any Borrower of principal of, or interest on, the Euro-Rate Portion
of any Loans, from any Borrower hereunder or under the Notes (except
for taxes on the overall net income or overall gross receipts of such
Lender or such Notional Euro-Rate Funding Office or the LC Issuer
imposed by the jurisdictions (federal, state, local and foreign) in
which the Lender's principal office or Notional Euro-Rate Funding
Office or the LC Issuer is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to
extend
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credit extended by, assets (funded or contingent) of, deposits with
or for the account of, other acquisitions of funds by, such Lender
or any Notional Euro-Rate Funding Office (in connection with the
EuroRate Portion of any Loans) or the LC Issuer (other than
requirements expressly included herein in the determination of the
Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, any Lender or
any Notional Euro-Rate Funding Office or the LC Issuer, or (B)
otherwise applicable to the obligations of any Lender or any
Notional Euro-Rate Funding Office or the LC Issuer under this
Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding Office
or the LC Issuer any other condition or expense, to the extent such
condition or expense relates to the Euro-Rate Portion of any Loans,
or its making, maintenance or funding of the Euro-Rate Portion of any
Loans or the Letters of Credit or participations therein;
and the result of any of the foregoing is reasonably determined by any Lender or
the LC Issuer to increase the cost to, reduce the income receivable by, or
impose any expense (excluding loss of margin) upon such Lender, any Notional
Euro-Rate Funding Office or the LC Issuer, as applicable, or, in the case of
clause (iii) hereof, any Person controlling a Lender or the LC Issuer, with
respect to the Euro-Rate Portion of any Loans, the Letters of Credit or the
making, maintenance or funding of any such Loan or Letters of Credit or
participations therein (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on such Lender's
or LC Issuer's or controlling Person's capital, taking into consideration such
Lender's or LC Issuer's or controlling Person's policies with respect to capital
adequacy) by an amount which such Lender or the LC Issuer reasonably deems to be
material (such Lender being deemed for this purpose to have made, maintained or
funded each Funding Segment of the Euro-Rate Portion from a Corresponding Source
of Funds), such Lender or the LC Issuer may from time to time promptly notify
the Company of the amount determined in good faith (using any reasonable
averaging and attribution methods) by such Lender or the LC Issuer (which
determination shall be conclusive absent manifest error) to be necessary to
compensate such Lender or such Notional Euro-Rate Funding Office or the LC
Issuer for such increase, reduction or imposition. No Borrower shall have an
obligation to reimburse a Lender or the LC Issuer under this Section 2.14(A) for
any amount with respect to any such increase, reduction or imposition which
amount is attributable to a period of more than 60 days ending prior to the date
of such Lender's or LC Issuer's first notice to the Company of such increase,
reduction or imposition.
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Each Lender or the LC Issuer will notify the Company and the Administrative
Agent of any event occurring after the date of this Agreement which will entitle
such Lender or the LC Issuer to compensation pursuant to this Section 2.14(A) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. Each Lender or the LC Issuer will furnish the Company
and the Administrative Agent with a statement setting forth in reasonable detail
the basis, the manner of calculation and the amount of each request by such
Lender or the LC Issuer for compensation from any Borrower under this Section
2.14(a). Such amount shall be due and payable by the applicable Borrower to such
Lender or the LC Issuer five Business Days after such notice is given to the
Company. In the event that after a Borrower shall have paid any additional
amount under this Section 2.14(a) with respect to any Loan or Letter of Credit
or participations therein such Lender or the LC Issuer shall have successfully
contested such law, regulation, treaty, order, directive, interpretation or
condition, then, to the extent that such Lender or the LC Issuer is or will be
placed in the same position it was prior to the incurrence of the additional
costs received or receivable (on an after-tax basis) and its contest of such
law, regulation or other condition, such Lender or the LC Issuer shall refund to
the relevant Borrowers such additional amount or any portion thereof with
respect to which such Lender or the LC Issuer is or will be placed in such
position.
(b) FUNDING BREAKAGE. In addition to the compensation required under
Section 2.14(a) hereof, each Borrower shall, jointly and severally, indemnify
each Lender against any loss or expense (excluding loss of margin) which such
Lender has incurred as a consequence of:
(i) any payment, prepayment or conversion of any part of any Funding
Segment of any Euro-Rate Portion of the Loans on a day other than
the last day of the corresponding Funding Period (whether or not
such payment, prepayment or conversion is mandatory or automatic and
whether or not such payment or prepayment is then due),
(ii) any attempt by any Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or in part any notice
stated herein to be irrevocable (the Administrative Agent having in
its sole discretion the options (A) to give effect to such attempted
revocation provided that indemnity under this Section 2.14(B) is
obtained or (B) to treat such attempted revocation as having no
force or effect, as if never made), or
(iii) any failure of any Borrower to pay when due (by acceleration
or otherwise) any principal, interest or any other amount due
hereunder or under any Note relating to the Euro-Rate Portion of any
Loans.
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If any Lender sustains or incurs any such loss or expense it shall
from time to time promptly notify the Company and the Administrative Agent in
writing setting forth in reasonable detail the amount determined in good faith
by such Lender (which determination shall be conclusive absent manifest error)
to be necessary to indemnify such Lender for such loss or expense. Such amount
shall be due and payable by the Borrowers to the Administrative Agent for the
account of such Lender, five Business Days after such notice is given.
(c) ADDITIONAL INTEREST. (i) So long as any Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, such Lender may require the Borrowers, as
their joint and several obligation, to pay, but only in respect of any period
during which such reserves shall actually be maintained by such Lender,
additional interest on the unpaid principal amount of the Euro-Rate Portion of
the Loans, at an interest rate per annum equal at all times during each
Euro-Rate Funding Period to the difference obtained by subtracting (A) the
Euro-Rate for such Euro-Rate Funding Period from (B) the rate obtained by
dividing such Euro-Rate referred to in clause (A) above by that percentage equal
to 100% minus the Euro-Rate Reserve Percentage of such Lender for such Euro-Rate
Funding Period, payable on each date on which interest is payable on such
Euro-Rate Portion.
(ii) If any Lender shall claim entitlement to any additional amount
pursuant to this Section 2.14(c), then such Lender shall deliver to
the Company a certificate setting forth the basis for the
determination thereof as promptly as practicable. More than one such
certificate may be so delivered. Each such certificate shall be
conclusive and binding for all purposes as to the amount due absent
manifest error. The Borrowers shall pay to each Lender the amount
shown as due on any such certificate within five Business Days after
its receipt of the same.
SECTION 2.15. PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS. (a)
PAYMENTS GENERALLY. All payments and prepayments to be made by any Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff except for payments to a Lender subject to a withholding
deduction under Section 2.16(c) hereof. Payments and prepayments in respect of
principal, interest, fees, indemnity, expenses or other amounts due from any
Borrower hereunder or under any other Loan Document in Dollars shall be payable
no later than 2:00 p.m., New York City time (or such other time as is expressly
provided for in this Agreement for particular payments), on the day when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived, and an action therefor shall immediately accrue.
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Except for payments under Sections 2.14 and 10.06 hereof, such payments shall be
made for the account of Lenders to the Administrative Agent's Bancontrol Account
#12334-16521 at its Office in Dollars in funds immediately available at such
Office, and payments under Sections 2.14 and 10.06 hereof shall be made to the
applicable Lender at such domestic account as it shall specify to the Company
from time to time in funds immediately available at such account. Any payment or
prepayment received by the Administrative Agent or such Lender after 2:00 p.m.,
New York City time (or such other time as is expressly provided for in this
Agreement for particular payments), on any day shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent shall
distribute to the Lenders all such payments received by it from any Borrower as
promptly as practicable after receipt by the Administrative Agent. If and to the
extent that the Administrative Agent has not forwarded to any Lender such
Lender's share of any such payment on the same Business Day as such payment is
received (or deemed received) from such Borrower, the Administrative Agent shall
pay to such Lender interest on such amount at the Federal Funds Effective Rate
for each day until such payment is made. Upon termination of this Agreement and
payment in full of all principal, interest, fees, expenses and other amounts due
from any Borrower hereunder or under any other Loan Document, each Lender will
promptly xxxx its Notes "cancelled" and forward them to the Administrative Agent
for delivery to the Company.
(b) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by law,
after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from the Borrowers,
as their joint and several obligation, hereunder or under any other Loan
Document, such amounts shall bear interest for each day until paid (before and
after judgment), payable on demand, at a rate per annum based on a year of 365
or 366 days, as the case may be, and actual days elapsed (in the case of any
Portion of Loans bearing interest at the Base Rate Option) and 360 days and
actual days elapsed (in the case of any Portion of Loans bearing interest at the
Euro-Rate Option) which for each day shall be equal to the following:
(i) In the case of any part of the Euro-Rate Portion of any Loans,
(A) until the end of the applicable then-current Funding Period at a
rate per annum 2% above the rate otherwise applicable to such part,
and (B) thereafter in accordance with the following clause (ii); and
(ii) In the case of any other amount due from any Borrower hereunder
or under any other Loan Document, 2% above the then-current Base Rate
plus the Applicable Margin for the Base Rate Option;
65
PROVIDED that there shall be no duplication of the 2% referred to above and the
incremental 2% which may be included in the Applicable Margin while an Event of
Default exists.
(c) Unless the Company or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that a Borrower or such Lender, as the case may
be, will not make such payment, the Administrative Agent may assume that such
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if any Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such
Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such
amount is repaid to the Administrative Agent in immediately
available funds at the Federal Funds Effective Rate from time to
time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available
by the Administrative Agent to the applicable Borrower to the date
such amount is recovered by the Administrative Agent (the
"COMPENSATION PERIOD") at a rate per annum equal to the Federal
Funds Effective Rate from time to time in effect. If such Lender
pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's applicable Loan. If such Lender does not
pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon
the applicable Borrower, and such Borrower shall pay such amount to
the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Loan. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent
or the Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender or the Company
with respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) The obligations of the Lenders hereunder to make Loans and to
fund participations in Letters of Credit are several and not joint. The failure
of any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.
SECTION 2.16. TAXES. (a) PAYMENTS NET OF TAXES. All payments made by
the Borrowers under this Agreement shall be made free and clear of, and without
reduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and all liabilities with respect thereto,
excluding
(i) in the case of each Agent, the LC Issuer and each Lender,
income or franchise taxes imposed on such Agent, the LC Issuer or
such Lender by the jurisdiction under the laws of which such Agent,
the LC Issuer or such Lender is organized or any political
subdivision or taxing authority thereof or therein or as a result of
a connection between such Agent, the LC Issuer or such Lender and
any jurisdiction other than a connection resulting solely from this
Agreement and the transactions contemplated hereby, and
(ii) in the case of the LC Issuer and each Lender, income or
franchise taxes imposed by any jurisdiction in which the LC Issuer
or such Lender's lending offices which issue or book Letters of
Credit, or make or book Loans are located or any political
subdivision or taxing authority thereof or therein (all such
non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "TAXES"). If any Taxes are
required to be withheld or deducted from any amounts payable to any
Agent, the LC Issuer or any Lender under this Agreement or any other
Loan Document, the Borrowers, as their joint and several obligation,
shall pay the relevant amount of such Taxes and the amounts so
payable to such Agent, the LC Issuer or such Lender shall be
increased to the extent necessary to yield to such Agent, the LC
Issuer or such Lender (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Loan Documents. Whenever
any Taxes are paid by a Borrower with respect to payments made in
connection with this
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Agreement, as promptly as possible thereafter, the Company (acting on
behalf of the applicable Borrower) shall send to the Administrative
Agent for its own account or for the account of the LC Issuer or such
Lender, as the case may be, a certified copy of an original official
receipt received by the applicable Borrower showing payment thereof.
In the event that after the applicable Borrower shall have paid any
additional amount under this Section 2.16(a)(ii) with respect to any
Loan or any Letter of Credit the Lender or the LC Issuer, as the case
may be, shall have received a refund or credit of any Taxes paid by
such Borrower with respect to payments made in connection with this
Agreement, then, to the extent that such Lender or the LC Issuer
receives a refund or credit of all or a portion of such Taxes from
the Governmental Authority to whom such Taxes were paid by such
Borrower, such Lender or the LC Issuer shall refund to such Borrower
such additional amount or any portion thereof with respect to which
such Lender or the LC Issuer receives such refund or credit. Nothing
contained in this paragraph (a) shall require any Lender, the LC
Issuer or any Agent to make available any of its tax returns (or any
other information relating to its taxes which it deems to be
confidential).
(b) INDEMNITY. Each Borrower hereby jointly and severally
indemnifies each Agent, the LC Issuer and each of the Lenders for the full
amount of all Taxes attributable to payments by or on behalf of any Borrower
hereunder or under any of the other Loan Documents, any such Taxes paid by such
Agent, the LC Issuer or such Lender, as the case may be, any present or future
claims, liabilities or losses with respect to or resulting from any omission of
any Borrower to pay or delay in paying any Taxes (including any incremental
Taxes, interest or penalties that may become payable by such Agent, the LC
Issuer or such Lender as a result of any failure of any Borrower to pay such
Taxes), whether or not such Taxes were correctly or legally asserted. Such
indemnification shall be made within 30 days from the date such Lender, the LC
Issuer or such Agent, as the case may be, makes written demand therefor.
(c) WITHHOLDING AND BACKUP WITHHOLDING. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any State thereof agrees that, on or prior to the Effective
Date (or, with respect to any Lender which becomes a party to this Agreement
pursuant to Section 10.14 hereof, the Transfer Effective Date), it will furnish
to the Company and the Administrative Agent
(i) two valid, duly completed copies of United States Internal
Revenue Service Form W-8ECI or United States Internal Revenue Form
W-8BEN or successor applicable form, as the case may be, certifying
in each case that such Lender is entitled to receive payments under
this
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Agreement and the other Loan Documents without deduction or
withholding of any United States federal income taxes, and
(ii) a valid, duly completed Internal Revenue Service Form W-8 or W-9
or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax.
Each Lender which so delivers to the Company and the Administrative
Agent a Form W-8BEN or W-8ECI and Form W-8 or W-9 applicable forms (the "FORMS")
agrees to deliver to the Company and the Administrative Agent two further copies
of the Forms, or other manner of certification, as the case may be, on or before
the date that any such form expires or becomes obsolete or otherwise is required
to be resubmitted as a condition to obtaining an exemption from withholding tax,
or after the occurrence of any event requiring a change in the most recent form
previously delivered by it, and such extensions or renewals thereof as may
reasonably be requested by the Company and the Administrative Agent, certifying
in the case of a Form W-8BEN or Form W-8ECI that such Lender is entitled to
receive payments under this Agreement or any other Loan Document without
deduction or withholding of any United States federal income taxes, unless in
any such cases an event (including any changes in Law) 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 letter or form with respect to it and such Lender
advises the Company and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax. Notwithstanding anything to the contrary
contained herein, no Borrower shall be required to pay any additional amounts
pursuant to this Section 2.16 or pursuant to Section 2.14 if the obligation to
pay such additional amounts would not have arisen but for the failure by any
Agent or any Lender to comply with its obligations hereunder, or if such Agent
or Lender shall have delivered the appropriate Forms and such Agent or Lender is
not entitled to exemption from deduction or withholding of U.S. federal income
tax in respect of payments made by such Borrower hereunder for any reason other
than a change in U.S. law or regulations or in the official interpretation
thereof after the date of delivery of such Forms.
SECTION 2.17. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE. (a)
NOTIONAL FUNDING. Each Lender shall have the right from time to time,
prospectively or retrospectively, without notice to the Company or any other
Borrower, to deem any branch, subsidiary or affiliate of such Lender to have
made, maintained or funded any part of the Euro-Rate Portion at any time. Any
branch, subsidiary or affiliate so deemed shall be known as a "NOTIONAL
EURO-RATE FUNDING OFFICE."
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Such Lender shall deem any part of the Euro-Rate Portion of the Loans or the
funding therefor to have been transferred to a different Notional Euro-Rate
Funding Office if such transfer would avoid or cure an event or condition
described in Section 2.06(e)(ii) hereof or would lessen compensation payable by
a Borrower under Sections 2.14(A), 2.16(a) or 2.16(b) hereof, and provided that
such Lender determines in its reasonable discretion that such transfer would be
practicable and would not have a material adverse effect on such part of the
Loans, such Lender or any Notional Euro-Rate Funding Office (it being assumed
for purposes of such determination that each part of the Euro-Rate Portion is
actually made or maintained by or funded through the corresponding Notional
Euro-Rate Funding Office). Notional Euro-Rate Funding Offices may he selected by
such Lender without regard to such Lender's actual methods of making,
maintaining or funding Loans or any sources of funding actually used by or
available to such Lender.
(b) ACTUAL FUNDING. Each Lender shall have the right from time to
time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to hold any applicable
Note payable to its order for the benefit and account of such branch, subsidiary
or affiliate or (ii) request the Borrowers to issue one or more promissory notes
in the principal amount of such Euro-Rate Portion, in substantially the form of
Exhibit A with the blanks appropriately filled, payable to such branch,
subsidiary or affiliate and with appropriate changes reflecting that the holder
thereof is not obligated to make any additional Loans to any of the Borrowers.
Each Borrower agrees to comply promptly with any request under subsection (ii)
of this Section 2.17(b). If any Lender causes a branch, subsidiary or affiliate
to make or maintain any part of the Euro-Rate Portion hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Euro-Rate Portion and to any note
payable to the order of such branch, subsidiary or affiliate to the same extent
as if such part of the Euro-Rate Portion were made or maintained and such note
were a Note payable to such Lender's order.
SECTION 2.18. APPOINTMENT OF THE COMPANY AS AGENT FOR BORROWER. Each
Borrower hereby irrevocably appoints the Company as its agent hereunder (i) to
request Revolving Credit Loans, Term Loans, Swingline Advances and Letters of
Credit on its behalf under Article 2 hereof, (ii) to terminate or reduce the
Commitments and (iii) to take any other action contemplated by the Loan
Documents with respect to any credit extended to any Borrower. Any notice or
request provided to the Company shall be deemed a notice or request provided to
the Company as agent for each and any one of the Borrowers.
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SECTION 2.19. BORROWER WAIVER. (a) GENERAL. Each Borrower hereby
waives any defense based on, or arising out of any defense of, any other
Borrower, other than payment in full of the Obligations, based on or arising out
of the disability of any Borrower, any other guarantor or any other party, or
the unenforceability of the Obligations or any part thereof or from any cause,
or the cessation from any cause of the liability of any Borrower other than
payment in full of the Obligations.
(b) SUBROGATION AND CONTRIBUTION. Unless and until the Obligations
have been fully paid and satisfied and all Commitments have terminated, each
Borrower hereby agrees not to exercise or otherwise assert any claim or other
right it may now or hereafter acquire against any other Borrower that arises
from the existence, payment, performance or enforcement of such Borrower's joint
and several obligations under this Agreement or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in any
claim or remedy of any Agent, any Lender or any other holder of the indebtedness
against any other Borrower whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from any other Borrower directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or security
on account of such claim or other right. Each Borrowing Subsidiary that makes a
payment or distribution under this Agreement on account of a Loan incurred by
another Borrower shall be entitled to contribution from each other Borrower in a
pro rata amount based on the Adjusted Net Assets of each Borrower. For purposes
hereof, "ADJUSTED NET ASSETS" of a Borrower at any date shall mean the lesser of
the amount by which (x) the fair value of the assets of such Borrower exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities, but excluding liabilities under this Agreement, of such Borrower at
such date and (y) the present fair salable value of the assets of such Borrower
at such date exceeds the amount that will be required to pay the probably
liability of such Borrower on its debts (after giving effect to all other fixed
and contingent liabilities of such Borrower) excluding Indebtedness in respect
of this Agreement, as they become absolute and matured.
(c) JOINT AND SEVERAL OBLIGATIONS. Notwithstanding anything herein
to the contrary, any obligation hereunder of the Company or any Borrowing
Subsidiary is the joint and several obligation of each Borrower (including,
without limitation, any obligation hereunder which the Agreement does not
specifically designate as a joint and several obligation).
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to each Agent and each
Lender as to itself and, where the following representations and warranties
apply to Subsidiaries, as to each of its Subsidiaries, as follows:
SECTION 3.01. CORPORATE STATUS. The Company, each Borrowing
Subsidiary and each other Significant Subsidiary thereof (a) is a corporation,
partnership or limited liability company, as applicable, duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; (b) has corporate, partnership or limited liability company, as
applicable, power and authority to own its property and to transact the business
in which it is engaged or presently proposes to engage; and (c) is duly
qualified to do business as a foreign corporation, partnership or limited
liability company, as applicable, and is in good standing in all jurisdictions
in which the ownership of its properties or the nature of its activities or both
makes such qualification necessary; except for matters that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
Schedule 3.01 states as of the date hereof the jurisdiction of
incorporation of each Credit Party, each Special Purpose Subsidiary and each
other Significant Subsidiary.
SECTION 3.02. CORPORATE POWER AND AUTHORIZATION. Each Credit Party
has the corporate, partnership or limited liability company, as applicable,
power to execute, deliver and perform the Loan Documents to be executed by it
and has taken all necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of this Agreement and the other Loan
Documents to be executed by it. Each Borrower has the power to borrow and
request the Issuance of the Letters of Credit hereunder and has taken all
necessary corporate, partnership or limited liability company, as applicable,
action to authorize the borrowings and the requests for the Issuance of the
Letters of Credit hereunder on the terms and conditions of this Agreement. No
consent or approval of any Person (including, without limitation, any
stockholder or member of any Credit Party), no consent or approval of any
landlord or mortgagee, no waiver of any Lien of right or distraint or other
similar right and no consent, license, approval, authorization or declaration of
any governmental authority, bureau or agency, is or will be required in
connection with the execution, delivery or performance by each Credit Party, or
the validity, enforcement or priority, of the Loan Documents to be executed by
it, except as set forth on Schedule 3.02, each of which, except as set forth on
Schedule 3.02, has been duly and validly obtained on or prior to the
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date hereof and is now in full force and effect and is sufficient for its
intended purpose.
SECTION 3.03. EXECUTION AND BINDING EFFECT. This Agreement and each
other Loan Document to which each Credit Party is a party has been, or upon its
execution and delivery will be, duly executed and delivered by such Credit Party
and each constitutes, or upon its execution and delivery will constitute, the
valid and legally binding obligation of such Credit Party, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally and except that the remedy of specific performance
and other equitable remedies are subject to judicial discretion. There is no
action, suit, proceeding or investigation pending or, to the knowledge of any
Credit Party, threatened against or affecting the Company or any of its
Subsidiaries which questions the validity or the enforceability of any of the
Loan Documents.
SECTION 3.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "GOVERNMENTAL ACTION") is
or will be necessary in connection with execution and delivery of this Agreement
or any other Loan Document, consummation by the Credit Parties of the
transactions herein or therein contemplated, or performance of or compliance
with the terms and conditions hereof or thereof, other than the filings and
recordations contemplated by the Collateral Documents. Neither the Company nor
any Subsidiary thereof is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any Federal or state statute or regulation
limiting any Borrower's ability to incur Indebtedness for money borrowed or to
request the Issuance of the Letters of Credit. Neither the Company nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 3.05. ABSENCE OF CONFLICTS. The execution and delivery by
each Credit Party of this Agreement and each other Loan Document to which it is
a party and performance by it hereunder and thereunder, will not violate any Law
(including, without limitation, Regulations U, T and X of the Federal Reserve
Board) and will not conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or its certificate of incorporation or by-laws or any similar
constituent documents or
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create (with or without the giving of notice or lapse of time, or both) a
default under or breach of any material agreement, bond, note or indenture to
which it is a party (by successor in interest or otherwise), or by which it is
bound or any of its properties or assets is affected, or, except under the
Collateral Documents, result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used in connection
with the business of the Company or any of its Subsidiaries.
SECTION 3.06. FINANCIAL STATEMENTS. (a) The Company has heretofore
furnished to each Agent and each Lender a consolidated balance sheet of the
Company and its consolidated Subsidiaries as of December 31, 2001 and the
related consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal year then ended, as examined and reported on
by PricewaterhouseCoopers LLP, independent certified public accountants for the
Company, who delivered an opinion in respect thereof, unqualified as to scope of
audit. Such financial statements (including the notes thereto) present fairly in
all material respects the financial condition of the Company and its
consolidated Subsidiaries as of the end of such fiscal year and the results of
their operations and their cash flows for the fiscal year then ended, all in
conformity with GAAP.
(b) The Company has heretofore furnished to each Agent and each
Lender a consolidated balance sheet of the Company and its consolidated
Subsidiaries as of March 31, 2002 and the related consolidated statements of
income, cash flows and changes in stockholders' equity for the fiscal quarter
then ended. Such financial statements present fairly in all material respects
the financial condition of the Company and its consolidated Subsidiaries as of
the end of such fiscal quarter and the results of their operations and their
cash flows for the fiscal quarter then ended, all in conformity with GAAP
(subject to customary year-end audit adjustments and the absence of footnotes).
SECTION 3.07. ABSENCE OF UNDISCLOSED LIABILITIES. As of the date
hereof, neither the Company nor any Subsidiary of the Company has any liability
or obligation of any nature whatever (whether absolute, accrued, contingent or
otherwise, whether or not due), forward or long-term commitments or unrealized
or anticipated losses from unfavorable commitments, except (a) as disclosed in
the financial statements referred to in Section 3.06 hereof or on Schedule
3.07(a), (b) matters that, individually or in the aggregate, in the Company's
reasonable judgment, could not reasonably be expected to have a Material Adverse
Effect and (c) liabilities, obligations, commitments and losses incurred after
March 31, 2002 otherwise permitted, or not restricted, by the Previous Credit
Agreement or this Agreement. As of the date hereof, neither the Company nor any
Subsidiary of the Company had any Indebtedness other than the Indebtedness of
the Company and its Subsidiaries set forth on Schedule 3.07(b).
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SECTION 3.08. ABSENCE OF MATERIAL ADVERSE CHANGES. Except as
disclosed in the financial statements referred to in Section 3.06 hereof or on
Schedule 3.07(a), since March 31, 2002, there has been no material adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
SECTION 3.09. ACCURATE AND COMPLETE DISCLOSURE. No information
heretofore, contemporaneously or hereafter provided by or on behalf of the
Company or any Subsidiary thereof in writing to any Agent or any Lender in
writing pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby contains any untrue statement of a material fact
or omits to state any material fact necessary to make such information (taken as
a whole) not misleading in any material respect at such time in light of the
circumstances in which it was provided; PROVIDED that, with respect to
projections and similar financial information, no representation or warranty is
made pursuant to this Section 3.09 except that such projections and similar
financial information were prepared in good faith based upon assumptions
believed by management of the Company to be reasonable at the time of such
preparation.
SECTION 3.10. MARGIN REGULATIONS. No part of the proceeds of any Loan
or any Letter of Credit issued hereunder will be used for the purpose of buying
or carrying any "MARGIN STOCK," as such term is used in Regulation U of the
Board of Governors of the Federal Reserve System, as amended from time to time,
or to extend credit to others for the purpose of buying or carrying any "margin
stock," in either case in a manner which would violate or conflict with
Regulation T, U, or X of the Board of Governors of the Federal Reserve System.
Neither the Company nor any Subsidiary thereof is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock."
Neither the making of any Loan, the issuance of any Letter of Credit nor any use
of proceeds of any such Loan or Letter of Credit will violate or conflict with
the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System, as amended from time to time.
SECTION 3.11. SUBSIDIARIES. Schedule 3.11(a) states as of the date
hereof each Significant Subsidiary and Borrowing Subsidiary of the Company and
the percentage of outstanding shares owned by the Company, by each Borrowing
Subsidiary and by each other Significant Subsidiary. The outstanding shares of
each Significant Subsidiary and Borrowing Subsidiary of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Company and each Significant Subsidiary and Borrowing Subsidiary thereof owns
beneficially and of record and has good title to all of the shares represented
by the ownership percentage shown in such Schedule 3.11(a), free and clear of
any Lien (other than the Lien of the Collateral Documents). There are no
options, warrants,
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calls, subscriptions, conversion rights, exchange rights, preemptive rights or
other rights, agreements or arrangements (contingent or otherwise) which may in
any circumstances now or hereafter obligate any Significant Subsidiary or
Borrowing Subsidiary to issue any shares of its capital stock or any other
securities. Except as set forth on Schedule 3.11(b), as of the date hereof, no
Significant Subsidiary or Borrowing Subsidiary has outstanding any class of
preferred stock or any class of common stock with a prior right to dividends.
SECTION 3.12. PARTNERSHIPS, ETC. As of the date hereof, neither the
Company, any Borrowing Subsidiary nor any other Significant Subsidiary is a
partner (general or limited) of any partnership, is a party to any joint venture
or owns (beneficially or of record) any equity or similar interest in any
similar Person (including, without limitation, any interest pursuant to which
the Company, such Borrowing Subsidiary or such other Significant Subsidiary has
or may in any circumstance have an obligation to make capital contributions to,
or be generally liable for or on account of the liabilities, acts or omissions
of such other Person), except for the partnership interests and joint ventures
set forth in Schedule 3.12.
SECTION 3.13. LITIGATION. There is no pending or (to the Company's
knowledge) threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Company or any Subsidiary of the
Company, except for (a) matters described in the financial statements referred
to in Section 3.06 hereof or in Schedule 3.13 (collectively, the "DISCLOSED
LITIGATION") and (b) matters that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. There has been no
change in the status, or financial effect on any Credit Party, of the Disclosed
Litigation from that described in the financial statements referred to in
Section 3.06 or on Schedule 3.13 that could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.14. ABSENCE OF EVENTS OF DEFAULT. No event has occurred
and is continuing and no condition exists which constitutes an Event of Default
or Potential Default.
SECTION 3.15. ABSENCE OF OTHER DEFAULTS. Except as disclosed on
Schedule 3.15, neither the Company nor any Subsidiary thereof is in default
under any agreement, ordinance, resolution, decree, bond, note, indenture, order
or judgment to which it is a party (by successor in interest or otherwise) or by
which it is bound, or any other agreement or other instrument by which any of
the properties or assets owned by it or used in the conduct of its business is
affected, which individually or in the aggregate, would have a Material Adverse
Effect. The Company and each Subsidiary thereof have complied and are in
compliance
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in all respects with all Laws, except for such instances of non-compliance that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.16. INSURANCE. The policies, binders or self-insurance
programs for fire, liability, product liability, workmen's compensation,
vehicular and other insurance currently held by or on behalf of the Company and
each Subsidiary thereof insure its material properties and business activities
against such losses and risks as are adequate to protect its properties in
accordance with customary industry practice when entered into or renewed. To the
best knowledge of the Company, as of the date hereof, all such policies, binders
and self-insurance programs are in full force and effect. As of the date hereof,
except as set forth on Schedule 3.16, neither the Company nor, to the best
knowledge of the Company, any of its Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance and, to
the best knowledge of the Company, no such improvements or expenditures are
required. As of the date hereof, neither the Company nor, to the best knowledge
of the Company, any of its Subsidiaries has received notice of cancellation of
any material insurance policy or binder.
SECTION 3.17. TITLE TO PROPERTY. The Company and each Subsidiary
thereof has good and marketable title in fee simple to all material real
property owned or purported to be owned by it and necessary for the operation of
its business and good title to all other material property of whatever nature
owned or purported to be owned by it, including, without limitation, all
material property reflected in the most recent audited balance sheet referred to
in Section 3.06 hereof or submitted pursuant to Section 5.01(A) hereof, as the
case may be (except as sold or otherwise disposed of in the ordinary course of
business after the date of such balance sheet) in each case free and clear of
all Liens, other than Permitted Liens or other Liens permitted pursuant to
Section 6.02 hereof.
SECTION 3.18. INTELLECTUAL PROPERTY. The Company and each Subsidiary
thereof owns, or is licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or otherwise),
copyrights, technology (including, without limitation, computer programs and
software), processes, data bases and other rights, free from burdensome
restrictions, necessary to own and operate its properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others, except for such instances of non-compliance
that, individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
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SECTION 3.19. TAXES. The Company and each Subsidiary thereof have
filed all Federal and other material tax returns required to be filed by it and
has not failed to pay any material taxes, or interest and penalties relating
thereto, on or before the due dates thereof except for taxes not yet due and
except for those the amount or validity of which is currently being contested in
good faith by appropriate proceedings. Except to the extent that reserves
therefor are reflected in the financial statements, to the best knowledge of the
Company (a) there are no material Federal, state or local tax liabilities of the
Company or any of its Subsidiaries due or to become due for any tax year ended
on or prior to the date hereof relating to the Company or any of its
Subsidiaries, whether incurred in respect of or measured by the income of the
Company or any of its Subsidiaries, which are not properly reflected in the
financial statements delivered pursuant to Section 3.06, and (b) there are no
material claims pending, proposed or threatened against the Company or any of
its Subsidiaries for past Federal, state or local taxes, except those, if any,
as to which proper reserves in accordance with GAAP are reflected in such
financial statements.
SECTION 3.20. EMPLOYEE BENEFITS. (a) No borrowing or issuance of
Letters of Credit contemplated by this Agreement is a transaction which is
subject to the prohibitions of Section 406 of ERISA or in connection with which
a tax could be imposed pursuant to Section 4975 of the Code or a civil penalty
assessed pursuant to Section 502(i) of ERISA (assuming that monies other than
monies representing plan assets are borrowed hereunder). Neither the Company,
any of its Subsidiaries nor any other Person, including any fiduciary, has
engaged in any prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) which could subject any of the Benefit Plans, the Company,
or any Subsidiary (or any entity which they have an obligation to indemnify) to
any tax or penalty imposed under 4975 of the Code or Section 502(i) of ERISA or
any other material liability under a foreign law of similar nature which alone
or together with any other item described in this Section 3.20 would have a
Material Adverse Effect.
(b) No Borrower nor any of the Company's other Significant
Subsidiaries (including any member of their respective Controlled Group) (i) has
incurred or expects to incur any liability under Title IV of ERISA or Section
502(g) of ERISA or any analogous provision relating to Section 515 of ERISA or
(ii) has become subject or expects to be subject to the lien described in
Section 412(n) of the Code, which alone or together with any other item
described in this Section 3.20 would have a Material Adverse Effect.
(c) The Pension Plans do not have an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412 of the
Code or Section 302 of ERISA. No Pension Plan has benefit liabilities as defined
in Section 400
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l(a)(16) of ERISA which exceed the assets of such Pension Plan by such an amount
that the termination of such Pension Plan alone or together with any other item
described in this Section 3.20 would have a Material Adverse Effect. The Company
has received a favorable determination letter from the IRS with respect to all
Pension Plans except for such Pension Plans with respect to which the failure to
receive such a favorable determination would not alone or together with any
other item described in this Section 3.20 have a Material Adverse Effect and
nothing has happened since the date of such letter that has adversely affected
such qualification. There is no Lien outstanding or security interest given in
connection with a Pension Plan or under Title IV of ERISA which would have a
Material Adverse Effect. As of the date hereof, the Company has received both
IRS and PBGC approval with respect to any terminated Benefit Plans subject to
Title IV of ERISA.
(d) No Borrower nor any of the Company's other Significant
Subsidiaries (including any member of their respective Controlled Group) is in
default in any material respect under any Benefit Plan and all Benefit Plans are
administered in accordance with their terms and are in all material respects in
compliance with all applicable Laws, except where any such default or failure to
comply would not alone or together with any other item described in this Section
3.20 have a Material Adverse Effect.
SECTION 3.21. ENVIRONMENTAL MATTERS. (a) The Company and each
Significant Subsidiary of the Company, to the Company's knowledge, has been
operated in compliance with all applicable Requirements of Law, except for (i)
matters set forth in Schedule 3.21(a) or matters which have been resolved to the
satisfaction of the relevant Governmental Authority and (ii) matters which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(b) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has obtained all Environmental Permits required by
applicable Requirements of Law for the ownership and operation of their
respective properties, and all such Environmental Permits are in full force and
effect or the Company and each Significant Subsidiary of the Company, as the
case may be, has made all appropriate filings for issuance or renewal of such
Environmental Permits, except for (i) matters set forth in Schedule 3.21(b), and
(ii) matters which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(c) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, is not aware of any acts, omissions, events or
circumstances that may interfere with or prevent continued compliance with the
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Requirements of Law and Environmental Permits referred to in (a) and (b) above,
except for (i) matters set forth in Schedule 3.21(c), and (ii) matters which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(d) The Company and each Significant Subsidiary of the Company will
use its best efforts to comply with all Requirements of Law and obtain all
Environmental Permits which may be legally imposed in the future in
jurisdictions in which the Company and each Significant Subsidiary, as the case
may be, may then be doing business; PROVIDED, HOWEVER, that the Company and each
Significant Subsidiary shall not be deemed to be in violation of this Section
3.21 as a result of any failure to comply with any provisions of such
Requirements of Law and Environmental Permits (i) the applicability or validity
of which is being contested by the Company or any of Company's Significant
Subsidiaries in good faith and by appropriate proceedings, or (ii) the
noncompliance with which would not result in fines, penalties, injunctive relief
of other civil or criminal liabilities which, individually or in the aggregate,
would have a Material Adverse Effect.
(e) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has not received notice of any asserted or threatened
claim, action, suit, proceeding, hearing, investigation or request for
information relating to any Environmental Matter, except for (i) matters set
forth in Schedule 3.21(e), and (ii) matters which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(f) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has not received notice from any governmental authority
that any of them is a potentially responsible party under any Requirements of
Law at any disposal site containing Hazardous Materials, nor received any notice
that any lien under any Requirements of Law against any property of any Borrower
or other Significant Subsidiary of the Company exists, except for (i) matters
setting forth in Schedule 3.21(f), and (ii) matters, which, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
SECTION 3.22. COLLATERAL. The Collateral Documents create valid
security interests in or mortgage Liens on the Collateral purported to be
covered thereby, which security interests or mortgage liens are and will remain
perfected security interests or mortgage liens to the extent and with the
priority contemplated by the Collateral Documents. Each of the representations
and warranties made by each Credit Party in each Collateral Document to which it
is a party is true and correct in all material respects as of each date made or
deemed made.
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ARTICLE 4
CONDITIONS OF LENDING
SECTION 4.01. CONDITIONS TO EFFECTIVENESS. This Agreement, and the
obligation of each Lender to make Loans (or of the LC Issuer to Issue a Letter
of Credit) hereunder, shall not become effective until the date (the "EFFECTIVE
DATE") on which each of the following conditions precedent is satisfied (or
waived in accordance with Section 10.03):
(a) AGREEMENT; NOTES. The Administrative Agent shall have received
executed counterparts of this Agreement, duly executed by each Credit Party,
each Agent and each Lender, and executed Notes conforming to the requirements
hereof, duly executed on behalf of each Borrower for each Lender requesting the
same.
(b) CORPORATE PROCEEDINGS. The Administrative Agent shall have
received certificates by the Secretary or Assistant Secretary of each Credit
Party dated as of the Effective Date as to (i) true copies of the articles of
incorporation and by-laws (or other constituent documents) of such Credit Party
in effect on such date, (ii) true copies of all corporate or limited liability
company action taken by such Credit Party relative to this Agreement and the
other Loan Documents and (iii) the incumbency and signature of the respective
officers of such Credit Party executing this Agreement and the other Loan
Documents to which such Credit Party is a party, together with satisfactory
evidence of the incumbency of such Secretary or Assistant Secretary. The
Administrative Agent shall have received certificates from the appropriate
Secretary of State or other applicable Governmental Authority dated not more
than 30 days before the Effective Date showing the good standing of each Credit
Party in its state of organization.
(c) FINANCIAL STATEMENTS. The Administrative Agent shall have
received, with a copy for each Lender, copies of the consolidated financial
statements referred to in Section 3.06 hereof.
(d) OPINIONS OF COUNSEL TO THE CREDIT PARTIES. The Administrative
Agent shall have received opinions addressed to the Agents and each Lender,
dated the Effective Date of (i) Xxxxxx X. X'Xxxxx, Esquire, Senior Vice
President and General Counsel of the Company, (ii) White & Case LLP, special New
York counsel to the Credit Parties, and (iii) local counsel in each jurisdiction
where a Mortgaged Property is located, each in a form reasonably satisfactory to
the Administrative Agent.
(e) FEES, EXPENSES, ETC. All fees and other compensation required to
be paid to each Agent or the Lenders pursuant hereto or pursuant to any other
written
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agreement on or prior to the Effective Date, including, without limitation, the
remaining balance of the amendment fee referred to in Section 2.09(B)(II), shall
have been paid or received.
(f) SECURITY. The Collateral and Guarantee Requirement shall have
been satisfied (PROVIDED that if the consents of (x) C.I.T. Financial
Corporation, N.J., the lessee of the property under that certain Agreement of
Lease dated December 21, 1981, by and between Xxxxxx Xxxxxxx Energy Corporation,
and (y) Fleet National Bank, the mortgagee under that certain Mortgage dated
June 30, 1989, which are required for the delivery of the second priority lien
mortgage on the property located at 0 Xxxxx Xxxx Xxxx Xxxx (a.k.a. 000 XXX
Xxxxx), Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx, are not received by the time all the
other conditions set forth in this Section 4.01 have been satisfied (or waived
in accordance with Section 10.03), such consents shall be deemed to have been
waived for purposes of the Effective Date, and the Company shall use its
commercially reasonable efforts to promptly obtain such consents and deliver
such Mortgage) and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by a Responsible
Officer of the Company, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Credit Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been released.
(g) REFINANCING OF EXISTING FACILITIES. (i) The lease facility or
financing currently encumbering the property described in the definition of
Perryville III Lease Facility shall have been repaid in full and replaced and
refinanced with a new Perryville Lease Facility and (ii) a new Securitization
Transaction shall have been consummated, in each case on terms reasonably
satisfactory to the Administrative Agent and the Required Lenders.
(h) REPRESENTATIONS AND WARRANTIES. The Administrative Agent shall
have received a certificate of a Responsible Officer of the Company, in form
satisfactory to the Administrative Agent and stating that:
(i) Each of the representations and warranties made herein by each
Credit Party is true and correct in all material respects on and as
of the Effective Date as if made on and as of such date (except with
respect to representations and warranties which specifically refer to
an earlier date, which are true and correct in all material respects
as of such earlier date), both before and after giving effect to the
making of any Loans or the
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Issuance of any Letters of Credit requested to be made or Issued, as
the case may be, on such date.
(ii) No Event of Default or Potential Default has occurred and is
continuing on the Effective Date or after giving effect to the
occurrence of the Effective Date and the making of any Loans or the
Issuance of any Letters of Credit requested to be made or Issued, as
the case may be, on such date.
(i) BALANCE SHEET. The Company shall have delivered to the
Administrative Agent a balance sheet of the Company and its consolidated
Subsidiaries as of June 28, 2002, giving effect to the transactions contemplated
by this Agreement and prepared in accordance with United States generally
accepted accounting principles (as defined in the Indenture), along with a
certificate of a Responsible Officer of the Company (i) certifying that such
balance sheet was prepared in accordance with United States generally accepted
accounting principles and (ii) setting forth the amount of Consolidated Net
Tangible Assets (as defined in the Indenture) as of such date (the aggregate
amount of the Term Loans to be made on the Effective Date not to exceed 5% of
such amount).
(j) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other matters in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably
satisfactory in form and substance to each Agent.
Notwithstanding the foregoing, this Agreement and the obligations of
the Lenders to make Loans and of the LC Issuer to Issue Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.03) at or prior to 3:00 p.m., New
York City time, on August 30, 2002 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. The
obligation of each Lender to make any Loan (including the initial Loans) and of
the LC Issuer to Issue any Letter of Credit (including the initial Letter of
Credit) is subject to satisfaction of the following conditions precedent:
(a) NOTICE. Appropriate notice of such Loan or request for the
Issuance of such Letter of Credit, as the case may be, shall have been given by
the Company as provided in Article 2 hereof.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made herein by each Credit Party shall be true and correct in all
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material respects on and as of such date as if made on and as of such date
(except with respect to representations and warranties which specifically refer
to an earlier date, which shall be true and correct in all material respects as
of such earlier date), both before and after giving effect to the Loans or the
Letters of Credit requested to be made or Issued, as the case may be, on such
date.
(c) NO DEFAULTS. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans or
the Letters of Credit requested to be made or Issued, as the case may be, on
such date.
(d) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of the
Loans shall cause any Lender to violate or conflict with any Law. Neither the
issuance nor use of the Letters of Credit shall cause the LC Issuer to violate
or conflict with any Law.
(e) CASH COLLATERAL. In the case of Issuance of a Letter of Credit,
the Borrowers shall have Cash Collateralized such Letter of Credit to the extent
(if any) required by Section 2.12(d).
Each request by the Company (acting on behalf of any Borrower) for
any Loan or Letter of Credit (including the initial Loans and Letter of Credit)
shall constitute a representation and warranty by each Borrower that the
conditions set forth in this Section 4.02 have been satisfied as of the date of
such request. Failure of the Administrative Agent to receive notice from the
Company to the contrary before such Loan is made or such Letter of Credit is
issued shall constitute a further representation and warranty by the Company
that the conditions referred to in this Section 4.02 have been satisfied as of
the date such Loan is made or such Letter of Credit is Issued.
ARTICLE 5
AFFIRMATIVE COVENANTS
The Company hereby covenants to each Agent and each Lender as
follows:
SECTION 5.01. BASIC REPORTING REQUIREMENTS. (a) ANNUAL FINANCIAL
REPORTS. The Company shall deliver to the Administrative Agent, with a copy for
each Lender, as soon as available, but in any event within 90 days after the
last day of each of its fiscal years, an audited consolidated (and an unaudited
consolidating) balance sheet of Parent as at such last day of each such fiscal
year, and the related consolidated and consolidating statements of income and
retained
84
earnings and changes in financial position, for such fiscal year, and setting
forth in each case in comparative form the figures for the Budget and the
immediately preceding fiscal year, each prepared in accordance with GAAP (except
as required by any change in accounting principles or concurred in by Parent's
independent certified public accountants), in reasonable detail (although the
consolidating financial statements delivered pursuant to this Section 5.01(a)
shall cover the Subsidiaries (or group of Subsidiaries) and shall be in such
detail as are consistent with the consolidating financial statements prepared by
the Company for the Lenders at the date of this Agreement), and, as to the
consolidated financial statements, certified without qualification (other than
relating to a change in accounting principles with which such accountants concur
and other than any other qualification which the Administrative Agent and the
Required Lenders deem, in their reasonable judgment, to be immaterial) by
PricewaterhouseCoopers LLP or another firm of independent certified public
accountants reasonably satisfactory to the Administrative Agent as fairly
presenting in all material respects the financial position and the results of
operations of Parent as at and for the year ending on such date and as having
been prepared in accordance with GAAP.
(b) QUARTERLY FINANCIAL REPORTS. The Company shall deliver to the
Administrative Agent, with a copy for each Lender, as soon as available, but in
any event within 45 days after the end of each of the Company's first three
fiscal quarterly periods, consolidated and the related consolidating balance
sheets of the Company as of the last day of such quarter and consolidated and
consolidating statements of income and retained earnings and changes in
financial position, for such quarter, and setting forth in each case in
comparative form the figures for the Budget and the corresponding period of (or,
in the case of the balance sheet, as at the end of) the immediately preceding
fiscal year, all in reasonable detail (although the consolidating financial
statements delivered pursuant to this Section 5.01(b) shall cover the
Subsidiaries (or group of Subsidiaries) and shall be in such detail as are
consistent with the consolidating financial statements prepared by the Company
for the Lenders at the date of this Agreement), each such statement to be
certified in a certificate of a Responsible Officer of the Company, as fairly
presenting in all material respects the financial position and the results of
operations of the Company as at such date and for such quarter and as having
been prepared in accordance with GAAP (subject to customary year-end audit
adjustments and the absence of footnotes).
(c) MONTHLY FINANCIAL REPORTS. The Company shall deliver to the
Administrative Agent, with a copy for each Lender, as soon as available, but in
any event within 30 days after the end of each of the first two months of a
fiscal quarter and within 45 days after the end of the third fiscal month of a
fiscal quarter, consolidated and consolidating balance sheets of the Company as
of the
85
last day of such month and the related consolidated and consolidating statements
of income and retained earnings and changes in financial position, for such
month, and setting forth in each case in comparative form the figures for the
corresponding period of (or, in the case of the balance sheet, as at the end of)
the immediately preceding fiscal year, and setting forth a comparison of
selected figures with the Budget, all in reasonable detail (although the
consolidating financial statements delivered pursuant to this Section 5.01(c)
shall cover the Subsidiaries (or group of Subsidiaries) and shall be in such
detail as are consistent with the consolidating financial statements prepared by
the Company for the Lenders at the date of this Agreement), each such statement
to be certified in a certificate of a Responsible Officer of the Company, as
fairly presenting in all material respects the financial position and the
results of operations of the Company as at such date and for such month and as
having been prepared in accordance with GAAP (subject to customary year-end
audit adjustments and the absence of footnotes).
(d) QUARTERLY COMPLIANCE CERTIFICATES. The Company shall deliver to
the Administrative Agent, with a copy for each Lender, a Quarterly Compliance
Certificate in substantially the form of Exhibit C, duly completed and signed by
a Responsible Officer of the Company concurrently with the delivery of the
financial statements referred to in subsections (a) and (b) of this Section
5.01. Each such Quarterly Compliance Certificate shall in addition include a
listing, as of the end of the most recently completed fiscal quarter, showing
the respective amounts of Indebtedness for borrowed money of each Subsidiary
(other than any Special Purpose Subsidiary) of the Company which is organized
under the laws of a jurisdiction outside the United States. To the extent such
information is not included in the financial statements delivered pursuant to
Section 5.01(A) hereof, each Quarterly Compliance Certificate with respect to
the last quarter of a fiscal year shall in addition include (i) a listing, as of
the end of such quarter, of the respective amounts of Indebtedness for borrowed
money of each Special Purpose Subsidiary of the Company which is organized under
the laws of a jurisdiction outside the United States and (ii) a calculation of
Excess Cash Flow for such fiscal year, in reasonable detail and in form and
scope reasonably satisfactory to the Administrative Agent and with such further
detail as the Administrative Agent may reasonably request.
(e) CASH FLOW ANALYSIS. The Company shall deliver to the
Administrative Agent, with a copy for each Lender, on a biweekly basis, an
analysis of the cash flow of the Company and each of its Domestic Subsidiaries
for such period, setting forth (i) in comparative form the figures for the
Budget and (ii) cash flow forecasts for the next four weeks on a weekly basis
and the next two months on a monthly basis, all in reasonable detail and in form
and scope
86
reasonably satisfactory to the Administrative Agent and with such further detail
as the Administrative Agent may reasonably request.
(f) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their
becoming available to the Company, the Company shall deliver to the
Administrative Agent, with a copy for each Lender, a copy of (i) all regular or
special reports, registration statements and amendments to the foregoing which
the Company or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, and (ii) all
reports, proxy statements, financial statements and other information
distributed by the Company to its stockholders (for distribution to Parent's
stockholders) or bondholders.
(g) FURTHER INFORMATION. The Company will promptly furnish to the
Administrative Agent, with a copy for each Lender that has requested the same,
such other information and in such form as any Agent or any Lender may
reasonably request from time to time.
(h) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of any of
the following, the Company shall give the Administrative Agent notice thereof,
together with a written statement of a Responsible Officer of the Company
setting forth the details thereof and any action with respect thereto taken or
proposed to be taken by the Company:
(i) Any Event of Default or Potential Default; PROVIDED, HOWEVER,
that the Company shall not be required to deliver notice of any
violation of any covenant contained in Section 5.01 hereof (other
than subparagraph (h)(i) thereof) during the first five days after
the first occurrence of such violation if the Company reasonably
believes that such violation will be cured within such five-day
period.
(ii) Any change in the business, operations or condition (financial
or otherwise) of the Company and its Subsidiaries taken as a whole
which could reasonably be expected to have a Material Adverse Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against the
Company or any Subsidiary, except for matters that, if adversely
decided, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(iv) Any violation, breach or default by the Company or any
Subsidiary of the Company of or under any agreement or instrument
87
material to the business, operations or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole which
could in the reasonable judgment of the Company have a Material
Adverse Effect.
(v) Any material correspondence with the PBGC, the Secretary of
Labor or any representative of the IRS with respect to any Benefit
Plan or Pension Plan, relating to an actual or threatened change or
development which would materially and adversely affect the financial
condition of the Company and its Subsidiaries taken as a whole; and
copies of any notices from the PBGC to the Company with respect to
the intent of the PBGC to institute involuntary proceedings.
(vi) Any Environmental Claim pending or threatened against the
Company or any Significant Subsidiary of the Company, or any past or
present acts, omissions, events or circumstances (including, without
limitation, any dumping, leaching, deposition, removal, abandonment,
escape, emission, discharge or release of any Hazardous Material at,
on or under any facility or property now or previously owned,
operated or leased by the Company or any Significant Subsidiary of
the Company) that could form the basis of such Environmental Claim,
which Environmental Claim, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(i) VISITATION; VERIFICATION. The Company shall, and shall cause
each of its Subsidiaries to, permit the Lenders to make or cause to be made, at
their own expense (and, with respect to E&Y, during the term and within the
scope of their engagement as approved by the Company, at the Company's expense),
inspections and audits of any of its books, records and papers and to make
extracts therefrom and copies thereof, or to make inspections and examinations
of any of its properties and facilities (including, without limitation, any
Project sites), on reasonable notice, at all such reasonable times and as often
as any Lender may reasonably require, in order to assure that the Company and
its Subsidiaries are and will be in compliance with their respective obligations
under the Loan Documents or to evaluate the Lenders' investment in the then
outstanding Loans. The Company shall have the right to have an authorized
representative present during the inspection and examination of any of the
Company's or any of its Subsidiaries' properties and facilities; PROVIDED,
HOWEVER, that the exercise of such right shall not delay or hinder the Lenders'
right to such inspection and examination.
(j) STATUS REPORTS. Within five Business Days after the delivery of
the financial statements described in subsection (c) of this Section 5.01 for
fiscal months ended on or before March 31, 2003, the Company shall permit the
88
Administrative Agent and the Lenders access (whether by teleconference or in
person as agreed between the Company and the Administrative Agent) to its
management (and, with respect to matters covered by clause (ii) below, its
advisors with respect to such proposed Asset Sales) to discuss, in detail
reasonably satisfactory to the Administrative Agent, (i) the status of the Xxx
Xxxx engagement as in effect on the date hereof, (ii) the status of any proposed
Asset Sales and (iii) the business and operations of the Company and its
Subsidiaries.
(k) ANNUAL BUDGET. Within 45 days after the first day of each fiscal
year, an annual budget of the Company for the then-current fiscal year, setting
forth for each fiscal quarter of such fiscal year the projected balance sheet
and statements of income and cash flows for such fiscal year for the Company and
its Subsidiaries on a consolidated basis, the Domestic Subsidiaries on a
consolidated basis and each business unit, all in reasonable detail and in form
and scope reasonably satisfactory to the Administrative Agent.
The Administrative Agent shall promptly deliver to each Lender copies
of all notices received pursuant to this Section 5.01. Reports required to be
delivered pursuant to this Section 5.01 shall be deemed to have been delivered
on the date on which the Company delivers such report to the Administrative
Agent electronically for posting on IntraLinks/IntraAgency or other relevant
third-party commercial website (if any) on the Company's behalf; PROVIDED that
(y) the Company shall deliver paper copies of such reports to the Administrative
Agent or any Lender who requests the Company to deliver such paper copies until
written request to cease delivering paper copies is given by the Administrative
Agent or such Lender and (z) in every instance the Company shall provide paper
copies of the Quarterly Compliance Certificates required by Section 5.01(D) to
the Administrative Agent and each of the Lenders. Except for such Quarterly
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the reports referred to above, and
in any event shall have no responsibility to monitor compliance by the Company
with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such reports.
SECTION 5.02. INSURANCE. (a) The Company shall maintain and/or shall
cause each of its Subsidiaries to maintain, at its respective expense, and keep
in effect with responsible insurance companies, such liability insurance for
bodily injury and third party property damage as is customary in the case of
corporations engaged in the same or similar business or having similar
properties, similarly situated, PROVIDED, HOWEVER, that the Company may maintain
a system of self-insurance in accordance with sound business practice as is
customary for corporations having a similar net worth as the Company or on a
basis consistent with that in effect on the date hereof. The Company shall, and
shall cause each of
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its Subsidiaries to, keep and maintain, at its expense, its material real and
personal property insured against loss or damage by fire, theft, explosion,
spoilage, and all other risks ordinarily insured against by other owners or
users of such properties in similar businesses in an amount equal to the full
replacement or cash value thereof, subject to deductible amounts which the
Company, in its reasonable judgment, deems prudent. The Company shall, and shall
cause each of its Subsidiaries to, carry all insurance required by Law to cover
its obligations to the PBGC.
(b) Property Insurance Policies (including any Property Insurance
Policies required to be maintained pursuant to subsection (c) of this Section)
maintained with respect to any Collateral shall be endorsed or otherwise amended
to include (i) a non-contributing mortgagee clause (regarding improvements to
real property) and lenders' loss payable clause (regarding personal property),
in each case in favor of the Administrative Agent and providing for losses
thereunder to be payable to the Administrative Agent or its designee as joint
loss payee (it being understood that, subject to the rights of the Credit
Parties under the Loan Documents upon an Event of Default, loss payments shall
be endorsed by each loss payee and provided to the respective insured) and (ii)
such other provisions as the Administrative Agent may reasonably require from
time to time to protect the interests of the Secured Parties. Property Insurance
Policies shall not include co-insurance provisions whereby the Company, any
other Credit Party, the Administrative Agent or any other Person is co-insurer.
Commercial general liability policies (other than project policies) of the
Credit Parties shall be endorsed to name the Administrative Agent as an
additional insured as to any claims which are (or could be) asserted against the
Company or a Subsidiary. Each such policy referred to in this subsection also
shall provide that it shall not be canceled, modified in any material respect or
not renewed (x) by reason of nonpayment of premium except upon at least 10 days'
prior written notice thereof by the insurer to the Administrative Agent (giving
the Administrative Agent the right to cure defaults in the payment of premiums)
or (y) for any other reason except upon at least 30 days' prior written notice
thereof by the insurer to the Administrative Agent. The Company shall deliver to
the Administrative Agent, prior to the cancellation, modification in any
material respect or nonrenewal of any such policy of insurance, a copy of a
renewal or replacement policy (or other evidence of a policy) together with
evidence reasonably satisfactory to the Administrative Agent of payment of the
premium therefor.
(c) If at any time the area in which any Mortgaged Property is
located is designated a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
the Company shall obtain flood insurance in the minimum amount required to
comply
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with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as amended from time to time.
SECTION 5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Company shall, and shall cause each Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties are imposed by a
taxing authority with respect thereto, all material taxes, assessments and other
governmental charges imposed upon it or any of its properties;
(b) on or prior to the date when due, all material lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons
which, if unpaid, might result in the creation of a Lien upon any such property
not otherwise permitted under this Agreement; and
(c) on or prior to the date when due, all other material lawful
claims which, if unpaid, might result in the creation of a Lien upon any such
property not otherwise permitted under this Agreement or which, if unpaid, might
give rise to a claim entitled to priority over general creditors of the Company
or such Subsidiary in a case under Title 11 (Bankruptcy) of the United States
Code, as amended;
PROVIDED that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Company or such Subsidiary need not
pay or discharge any such tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted and (y) such reserves or other appropriate provisions as
may be required by GAAP shall have been made therefor.
SECTION 5.04. PRESERVATION OF CORPORATE STATUS. The Company shall,
and shall cause each other Credit Party and each of the Company's other
Significant Subsidiaries to, do, or cause to be done, all things necessary to
preserve and keep in full force and effect its corporate existence and all
permits, rights and privileges necessary for the proper conduct of its business;
PROVIDED, HOWEVER, that nothing in this Section 5.04 shall prevent the
withdrawal by the Company, any other Credit Party or any of the Company's other
Significant Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not reasonably be expected to have a
Material Adverse Effect; and PROVIDED FURTHER that nothing in this Section 5.04
shall prevent the Company, any other Credit Party or any of the Company's other
Significant Subsidiaries from (i) failing to maintain or terminating any right,
privilege or permit, if such failure or termination, is not in violation of or
will not cause an Event of Default under, any provision of this Agreement and
does not have a
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Material Adverse Effect or (ii) selling any such Person in an Asset Sale or
consummating a merger or liquidation, in each case, otherwise permitted under
this Agreement
SECTION 5.05. GOVERNMENTAL APPROVALS AND FILINGS. The Company shall,
and shall cause each Subsidiary to, keep and maintain in full force and effect
all Governmental Actions necessary in connection with execution and delivery of
any Loan Document, consummation of the transactions hereon or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof or thereof.
SECTION 5.06. MAINTENANCE OF PROPERTIES. The Company shall, and shall
cause each Subsidiary to, maintain or cause to be maintained in good repair,
working order and condition the properties now or hereafter owned, leased or
otherwise possessed by it and shall make or cause to be made all needful and
proper repairs, renewals, replacements and improvements thereto so that they are
able to serve the functions for which they are currently being used, except to
the extent that the failure to do so would not have a Material Adverse Effect.
SECTION 5.07. AVOIDANCE OF OTHER CONFLICTS. The Company shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or otherwise) on account of any violation or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other constituent
documents), or
(c) any agreement or instrument to which it is party or by which any
of them or any of their respective Subsidiaries is a party or by which any of
them or any of their respective properties (now owned or hereafter acquired) may
be subject or bound),
except for matters which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
SECTION 5.08. FINANCIAL ACCOUNTING PRACTICES. The Company shall, and
shall cause each of its Subsidiaries to, keep proper books of record and account
in accordance with normal business practice in which full and appropriate
entries shall be made of all dealings or transactions in relation to its
business and activities.
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SECTION 5.09. USE OF PROCEEDS. The proceeds of the Loans and Letters
of Credit shall be used for the general corporate purposes of the Company and
its Subsidiaries. No Borrower shall use the proceeds of any Loans and Letters of
Credit hereunder directly or indirectly for any unlawful purpose or in any
manner inconsistent with any other provision of any Loan Document.
SECTION 5.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Company,
each of the other Borrowers and each of the Company's other Significant
Subsidiaries shall continue to engage in substantially the same lines of
business conducted and operated during the present and preceding fiscal year and
reasonably related extensions thereof, and the Company shall not, and shall not
permit any of the other Borrowers or any other Significant Subsidiary to,
substantially engage in any other unrelated businesses.
SECTION 5.11. CONSOLIDATED TAX RETURN. The Company shall not, and
shall not suffer any of its Subsidiaries to, file or consent to the filing of
any consolidated income tax return with any Person other than Parent, Foreign
Holdings, the Company and its Subsidiaries.
SECTION 5.12. FISCAL YEAR. The Company shall not, and shall not
suffer any of its Subsidiaries to, change its fiscal year or fiscal quarter
except in accordance with GAAP.
SECTION 5.13. ERISA. The Company shall, and shall cause each of its
Subsidiaries to, as soon as possible and, in any event, within 10 days after the
Company knows or has reason to know that a Reportable Event has occurred with
respect to a Pension Plan, that a transaction prohibited under ERISA, the Code
or a foreign law of similar nature has occurred resulting in a material
liability to a Benefit Plan, the Company or any of its Subsidiaries (or any
entity which they have an obligation to indemnify), that an accumulated funding
deficiency has been incurred or an application is to be or has been made to the
Secretary of the Treasury for a waiver of the minimum funding standard with
respect to an accumulation funding deficiency of $1,000,000 or more, that a
failure to make timely contributions to a Pension Plan may give or has given
rise to a lien in a material amount, that an amendment to a Pension Plan may
require or requires the granting of a security interest in a material amount,
that proceedings are likely to be or have been instituted to terminate a Pension
Plan, or that the Company, any other Borrower, any of the Company's other
Significant Subsidiaries or a member of their respective Controlled Group will
or may incur any material liability under Section 502(g) or any analogous
provision relating to Section 515 or Title IV of ERISA, the Company will deliver
to the Administrative Agent a certificate of a Responsible Officer setting forth
details as to such occurrence and action, if any, which the Company, such
Subsidiary or the respective member of their Controlled
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Group is required or proposes to take, together with any notices required or
proposed to be filed with or by the Company, such Subsidiary or the member of
their respective Controlled Group, the PBGC or the plan administrator with
respect thereto. For purposes of this Section, an item is material if alone or
taken with any other item in this Section, it results in a liability of
$1,000,000 or more. Copies of any notices required to be delivered to the
Administrative Agent hereunder shall be delivered not later than 10 days after
the later of the date such notice has been filed with the IRS or the PBGC or
received by the Company, any of its Subsidiaries or members of their respective
Controlled Group. Upon the request of the Administrative Agent or any of the
Lenders made from time to time, the Company will deliver a copy of the most
recent actuarial report and annual report completed with respect to any Benefit
Plan and any other financial information the Company has with respect to the
Benefit Plan.
SECTION 5.14. INFORMATION REGARDING COLLATERAL. The Company will give
the Collateral Agent at least five days' prior written notice of any change to
any Credit Party's (i) legal name, (ii) location (within the meaning of UCC
Section 9-307) or (iii) Federal Taxpayer Identification Number.
SECTION 5.15. FURTHER ASSURANCES. (a) If any Wholly-Owned Domestic
Subsidiary (other than a Special Purpose Subsidiary or an Immaterial Subsidiary)
is formed or acquired or any Subsidiary (other than a Special Purpose Subsidiary
or an Immaterial Subsidiary) becomes a Wholly-Owned Domestic Subsidiary, in each
case, after the Effective Date, the Company will within 15 Business Days
thereafter notify the Administrative Agent thereof and, as promptly as
practicable thereafter, cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Wholly-Owned Domestic Subsidiary and with respect
to any Equity Interest in or Indebtedness of such Wholly-Owned Domestic
Subsidiary owned directly by any Credit Party. If after the Effective Date any
Credit Party acquires any real or personal property with a fair market value of
$1,500,000 or more (as reasonably determined by the Company) (other than
property constituting Collateral that becomes subject to Liens under the
Collateral Documents upon acquisition thereof), the Company will notify the
Collateral Agent and the Lenders thereof, and cause such assets to be subjected
to a Lien securing the Obligations and take, or cause the relevant Credit Party
to take, such actions as shall be necessary or reasonably requested by the
Collateral Agent to grant and perfect or record such Lien, and to evidence the
same, all at the Company's expense, subject however to the ability of the
Company (using commercially reasonable efforts) to obtain any requisite consents
the need for which existed at the time of acquisition of such property and was
not created in contemplation thereof.
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(b) The Company will execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Collateral Agent or the Required Lenders
may reasonably request, to cause the Collateral and Guarantee Requirement to be
and remain satisfied, all at the expense of the Credit Parties. The Company also
agrees to provide to the Collateral Agent, from time to time upon promptly after
request, evidence reasonably satisfactory to the Collateral Agent as to the
perfection and priority of the Liens created or intended to be created by the
Collateral Documents.
(c) If at any time on or after the Effective Date the aggregate
outstanding principal amount of the Revolving Credit Loans is reduced to an
amount less than $6,083,000, the Borrowers will not thereafter borrow
incremental Revolving Credit Loans unless prior to or contemporaneously with the
related notice of borrowing the Borrower shall have furnished to the
Administrative Agent evidence reasonably satisfactory to the Administrative
Agent that any applicable New York State mortgage recording taxes shall have
been paid in full.
(d) If the Permitted CIT Sale does not occur on or before December
31, 2003, the Company shall deliver to the Collateral Agent a title policy and
survey for such property, each in form and substance reasonably satisfactory to
the Collateral Agent.
(e) Except with respect to the property located at Peach Tree Hill
Road, Essex County, New Jersey, which is covered by subsection (d), on or prior
to September 15, 2002, the Company shall deliver, with respect to each Mortgaged
Property, (i) a survey of such Mortgaged Property sufficiently detailed to
remove the "standard" survey exception and to otherwise permit the issuance of
the endorsements and affirmative insurance referred to in clause (ii) below, all
as reasonably satisfactory to the Collateral Agent, and (ii) such endorsements
or other affirmative insurance to the title insurance policy delivered pursuant
to clause (e)(ii) of the definition of "Collateral and Guarantee Requirement"
that are issued based on the facts shown on a survey and as are reasonably
requested by the Collateral Agent or the Required Lenders; PROVIDED that the
Collateral Agent may agree in its discretion to extend such date for compliance
or consent to a waiver of any or all of such conditions.
SECTION 5.16. SUBSIDIARIES. (a) The Company shall cause each Wholly-
Owned Domestic Subsidiary that is a Guarantor to remain a Wholly-Owned Domestic
Subsidiary, except pursuant to a transaction otherwise permitted under this
Agreement by virtue of which (i) such Wholly-Owned Domestic Subsidiary is
95
merged or liquidated into the Company or another Wholly-Owned Domestic
Subsidiary or (ii) the Company divests its entire direct and indirect ownership
interest in such Wholly-Owned Domestic Subsidiary. Except for Special Purpose
Subsidiaries, the Company shall not after May 9, 2002 form or acquire any
Domestic Subsidiary which is not a Wholly-Owned Domestic Subsidiary.
(b) The Company shall not permit any Foreign Subsidiary to form or
acquire a Domestic Subsidiary.
ARTICLE 6
NEGATIVE COVENANTS
The Company hereby covenants to each Agent and each Lender as
follows:
SECTION 6.01. FINANCIAL COVENANTS. (a) MINIMUM EBITDA. On and after
March 31, 2003, Consolidated Adjusted EBITDA for any fiscal period set forth
below shall not be less than the applicable amount set forth below.
FISCAL PERIOD MINIMUM AMOUNT
------------- --------------
Four Fiscal Quarters ended closest to 3/31/03 $81,700,000
Four Fiscal Quarters ended closest to 6/30/03 $92,417,000
Four Fiscal Quarters ended closest to 9/30/03 $101,378,000
Four Fiscal Quarters ended closest to 12/31/03 $101,726,000
Four Fiscal Quarters ended closest to 3/31/04 $111,693,000
Four Fiscal Quarters ended closest to 6/30/04 $121,660,000
Four Fiscal Quarters ended closest to 9/30/04 $131,627,000
Four Fiscal Quarters ended closest to 12/31/04 $141,594,000
Four Fiscal Quarters ended closest to 3/31/05 $143,243,000
(b) SENIOR DEBT RATIO. From and after March 31, 2003, the Senior Debt
Ratio shall not, at any date during any period set forth below, be more than the
applicable ratio set forth below opposite such period:
FISCAL PERIOD MAXIMUM RATIO
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The last day of the Fiscal Quarter ended closest to
3/31/03 through the day before the last day of the
Fiscal Quarter ended closest to 6/30/03 6.05
The last day of the Fiscal Quarter ended closest to
6/30/03 through the day before the last day of the
Fiscal Quarter ended closest to 9/30/03 5.35
The last day of the Fiscal Quarter ended closest to
9/30/03 through the day before the last day of the
Fiscal Quarter ended closest to 12/31/03 4.85
The last day of the Fiscal Quarter ended closest to
12/31/03 through the day before the last day of
the Fiscal Quarter ended closest to 3/31/04 4.85
The last day of the Fiscal Quarter ended closest to
3/31/04 through the day before the last day of the
Fiscal Quarter ended closest to 6/30/04 4.40
The last day of the Fiscal Quarter ended closest to
6/30/04 through the day before the last day of the
Fiscal Quarter ended closest to 9/30/04 4.05
The last day of the Fiscal Quarter ended closest to
9/30/04 through the day before the last day of the
Fiscal Quarter ended closest to 12/31/04 3.75
The last day of the Fiscal Quarter ended closest to
12/31/04 through the day before the last day of
the Fiscal Quarter ended closest to 3/31/05 3.50
The last day of the Fiscal Quarter ended closest to 3.45
3/31/05 through the day before the last day of the
Fiscal Quarter ended closest to 6/30/05
(c) In the event of any Asset Sale the compliance levels specified in
subsections (a) and (b) above for each period ending on or after the date of
consummation of such Asset Sale shall be adjusted as determined jointly by the
Company and the Administrative Agent. Such determination shall be based upon (i)
with respect to Consolidated Adjusted EBITDA, for purposes of both subsections
(a) and (b), a reduction for the contribution of the assets or entity which was
the subject of such Asset Sale to the business plan as presented by the Company
on May 9, 2002, adjusted for the cushion (35% in 2003 and 30% thereafter)
utilized in the initial determination of the minimum amounts specified in
subsection (a) above and (ii) with respect to Senior Debt for purposes of
subsection (b), an adjustment based on the amount of the actual reduction of the
Credit Exposures and the Senior Notes required pursuant to Section 2.12(b) by
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reason of such Asset Sale. The Administrative Agent shall promptly notify the
Lenders of each such adjustment.
SECTION 6.02. LIENS. The Company shall not and shall not permit any
of its Subsidiaries to create, or assume or suffer to exist, any Lien on any of
the properties or assets of the Company or any of its Subsidiaries (other than
any Special Purpose Subsidiary), whether now owned or hereafter acquired except:
(a) Liens created by the Company or a Subsidiary thereof on property
or assets securing all or part of the purchase price or construction cost
thereof (hereinafter referred to individually as a "PURCHASE MONEY SECURITY
INTEREST"); PROVIDED, HOWEVER, that:
(i) Such Purchase Money Security Interest is created before or
within 180 days after the purchase of, or the completion of
construction of, such property or assets by the Company or such
Subsidiary;
(ii) The transaction in which any Purchase Money Security Interest is
proposed to be created is not then prohibited by this Agreement;
(iii) Any Purchase Money Security Interest shall attach only to the
property or asset so acquired or constructed in such transaction (and
the proceeds thereof) or any addition thereto or replacement thereof
and shall not extend to or cover any other assets or properties of
the Company or any of its Subsidiaries; and
(iv) The Indebtedness secured or covered by any Purchase Money
Security Interest together with any other Indebtedness secured by the
property or asset acquired shall not exceed 100% of the lesser of the
cost or fair market value of the property or asset acquired or
constructed and shall not be renewed, extended or prepaid from the
proceeds of any borrowing by the Company or any of its Subsidiaries;
and
(v) The aggregate principal amount secured by all Liens permitted by
this subsection (a) and subsections (d) and (n) of this Section 6.02
shall not at any time exceed $10,000,000.
(b) Liens on the property or assets of the Company and its
Subsidiaries in existence immediately prior to the Effective Date, as listed on
Schedule 6.02, PROVIDED that no such Lien is spread to cover any additional
property after the Effective Date, and the amount of Indebtedness secured
thereby is not increased, PROVIDED that such Indebtedness may be extended,
renewed, refinanced or replaced;
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(c) Liens on all or any part of the property or the assets of any
Subsidiary in favor of the Company or any other Subsidiary (other than a Special
Purpose Subsidiary) as security for the Indebtedness and other obligations owing
to the Company or such other Subsidiary;
(d) Liens (whether or not assumed) existing on property or assets at
the time of purchase thereof by the Company or any Subsidiary (or on the
property or assets of a Subsidiary at the time of the purchase of the Equity
Interests of such Subsidiary), PROVIDED that: (i) such Lien is not created in
contemplation of the purchase of such property (or such Subsidiary) by the
Company or such Subsidiary, (ii) such Lien is confined solely to the property
(or such assets of such Subsidiary) so purchased, improvements thereto and
proceeds thereof and (iii) the aggregate principal amount secured by all Liens
permitted by this subsection (d) and subsections (a) and (n) of this Section
6.02 shall not at any time exceed $10,000,000;
(e) Permitted Liens;
(f) Liens on cash or cash equivalents in an aggregate amount of up
to $50,000,000 securing performance letters of credit issued to secure
obligations of the Company or any Subsidiary in connection with the project for
the Jacksonville Electric Authority;
(g) Liens on the Retained Amount securing letters of credit and
similar instruments issued to secure (i) obligations of the Company or any
Subsidiary in connection with projects and (ii) any other obligations of the
Company or any Subsidiary permitted to be incurred hereunder;
(h) Liens on the Equity Interests of, and on the property or assets
of, a Special Purpose Subsidiary securing Non-Recourse Project Debt of such
Special Purpose Subsidiary;
(i) Liens on property or assets of Foreign Subsidiaries securing
Indebtedness and other obligations of Foreign Subsidiaries otherwise permitted
by this Agreement;
(j) Liens on accounts receivable and related assets of the Company
and its Subsidiaries securing a Securitization Transaction;
(k) Liens on the Collateral not otherwise constituting Permitted
Liens securing up to $200,000,000 of obligations in respect of surety bonds;
PROVIDED that (i) such Liens are by their terms expressly subordinated to the
Liens under the
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Collateral Documents and (ii) the secured parties with respect to such Liens
have no rights in respect of such Collateral unless the Obligations have been
satisfied in full, in each case on terms satisfactory in all respects to the
Required Lenders;
(l) Liens on cash collateral securing the Senior Notes as, and to
the extent, permitted by Section 2.12(c);
(m) Liens on the related real and personal property incurred in
connection with any Perryville Lease Facility;
(n) Liens on the leased property and assets securing Financing
Leases and Capitalized Leases, PROVIDED that the aggregate principal amount
secured by all Liens permitted by this subsection (n) and subsections (a) and
(d) of this Section 6.02 shall not at any time exceed $10,000,000;
(o) ERISA Liens and other Liens not securing Indebtedness so long as
the aggregate amount secured by all Liens permitted by this subsection shall not
at any time exceed $5,000,000; and
(p) licenses, leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the conduct of the
business of the Company and its Subsidiaries taken as a whole.
SECTION 6.03. INDEBTEDNESS. The Company shall not, and shall not
permit any Subsidiary to, at any time create, incur, assume or suffer to exist
or have outstanding any Indebtedness other than:
(a) (i) Indebtedness of the Company and its Domestic Subsidiaries
set forth on Schedule 3.07 and refinancings, replacements and renewals of any
such Indebtedness (A) of Special Purpose Subsidiaries or (B) with a scheduled
maturity prior to the Maturity Date and (ii) the Existing Foreign Sale-Leaseback
Transactions and refinancings, replacements and renewals thereof, PROVIDED that
in the case of any refinancing, replacement or renewal permitted by this
subsection (a), the amount of such Indebtedness so refinanced, replaced or
renewed shall not exceed the lesser of (x) the amount of such Indebtedness (plus
any unused commitments) as of the date hereof or (y) the amount of such
Indebtedness (plus any unused commitments) at the time of such refinancing,
replacement or renewal,
(b) Indebtedness between or among the Company and its Subsidiaries;
PROVIDED that such Indebtedness is (i) subordinated pursuant to Acceptable
Subordination Provisions and (ii) permitted by Section 6.04,
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(c) Foreign Debt in an aggregate principal amount not to exceed
$100,000,000 outstanding at any time,
(d) the Obligations,
(e) Non-Recourse Project Debt,
(f) Indebtedness under a Securitization Transaction,
(g) Indebtedness under the Perryville III Lease Facility and the
Perryville I Lease Facility,
(h) Indebtedness permitted under Sections 6.02(a), (d) and (n),
(i) Indebtedness of (including Guarantees by) the Credit Parties
under the Senior Notes,
(j) (i) other Guarantees by a Credit Party of Indebtedness of the
Company or a Wholly-Owned Domestic Subsidiary which is a Guarantor and (ii)
Guarantees by Foreign Subsidiaries of Indebtedness of other Foreign
Subsidiaries; PROVIDED in each case that the Guaranteed Indebtedness is
otherwise permitted hereunder; and PROVIDED FURTHER that any such Guarantee of
Subordinated Indebtedness is itself subordinated pursuant to Acceptable
Subordination Provisions,
(k) Indebtedness of the Company which (i) matures not less than one
year after the Maturity Date, (ii) is subordinated to the Obligations pursuant
to (A) subordination provisions no less favorable to the holders of senior
Indebtedness than the subordination provisions of the Convertible Subordinated
Notes or (B) such other subordination provisions as may be approved in writing
by the Required Lenders (in either case, "ACCEPTABLE SUBORDINATION PROVISIONS")
and (iii) is otherwise subject to terms and conditions customary for
subordinated obligations of such nature; PROVIDED that the Net Cash Proceeds
thereof are applied pursuant to, and to the extent required by, Section 2.12(b),
(l) Guarantees by a Credit Party of the Convertible Subordinated
Notes or of other Indebtedness of the Parent which, if it were incurred by the
Company, would constitute Subordinated Indebtedness; PROVIDED that any such
Guarantee shall be subordinated to the Obligations pursuant to Acceptable
Subordination Provisions and the Net Cash Proceeds of any such Indebtedness
shall be applied pursuant to, and to the extent required by, Section 2.12(b) as
if such Indebtedness were incurred by, and all proceeds thereof were received
by, the Company,
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(m) Indebtedness under Hedging Agreements permitted by Section 6.15,
and
(n) other Indebtedness not to exceed $5,000,000 in aggregate
principal amount at any time outstanding.
SECTION 6.04. LOANS, ADVANCES AND CERTAIN INVESTMENTS; ACQUISITIONS.
(a) The Company shall not, and shall not permit any Subsidiary to, at any time
make or suffer to exist or remain outstanding any Investment in any Special
Purpose Subsidiary other than Investments by the Company and its Subsidiaries in
Special Purpose Subsidiaries made prior to the Effective Date and the
Investments described on Schedule 6.04(a).
(b) The Company shall not, and shall not permit any Domestic
Subsidiary to, at any time make any Investment in any Foreign Subsidiary, other
than:
(i) Investments made prior to the Effective Date and outstanding
on such date,
(ii) Investments made in an aggregate amount not to exceed 50% of the
aggregate amount of cash repatriated from Foreign Subsidiaries to the
Company or any of its Domestic Subsidiaries on or after May 1, 2002
(whether in the form of dividends, advances, loans, management fees,
licensing fees or similar arrangements); and
(iii) Guarantees by the Company or a Domestic Subsidiary of
performance or completion by a Foreign Subsidiary of obligations
which do not constitute Indebtedness, so long as such Guarantees are
given in their ordinary course of business consistent with past
practice.
(c) The Company shall not, and shall not permit any of its
Subsidiaries to, make any Business Acquisition.
(d) The Company shall not, and shall not permit any Subsidiary to,
make any Investment in any Person, except for
(i) Investments permitted by subsections (a) and (b) of this Section
6.04,
(ii) Investments in Foreign Subsidiaries made by other Foreign
Subsidiaries,
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(iii) Investments in the Company and its Domestic Subsidiaries,
(iv) Temporary Cash Investments,
(v) Investments in Persons other than the Parent or a Subsidiary of
the Parent in the ordinary course of business and on a basis consistent
with past practices,
(vi) Investments in the Parent and Foreign Holdings to the extent
permitted to be made as a Restricted Payment under Section 6.11,
(vii) Investments contemplated by clause (d)(iii) of the definition
of Net Cash Proceeds,
(viii) Investments listed on Schedule 6.04(d) that were made prior
to the Effective Date and outstanding on such date,
(ix) Guarantees permitted by Section 6.03(l), and
(x) unsecured Guarantees by the Company, Parent, Foreign Holdings or
any Holdco in respect of Indebtedness permitted under Section 6.03(g)
and otherwise in respect of the Perryville III Lease Facility and/or
the Perryville I Lease Facility.
SECTION 6.05. CHANGES IN BUSINESS. (a) The Company shall not, and
shall not permit any other Borrower or any other Significant Subsidiary to,
liquidate or dissolve itself (or suffer any liquidation or dissolution) (other
than into the Company or any other Borrower or any other Significant
Subsidiary).
(b) Parent shall engage in no business activity other than holding
Equity Interests in Foreign Holdings and activities reasonably incidental
thereto and activities necessary to maintain its existence.
(c) Foreign Holdings shall engage in no business activity other than
holding the Equity Interests of the Company and activities reasonably incidental
thereto and activities necessary to maintain its existence.
SECTION 6.06. AMENDMENT OF CERTAIN DOCUMENTS. The Company shall not,
and shall not permit any other Borrower or any other Significant Subsidiary to,
modify, amend, supplement or terminate, or agree to modify, amend, supplement or
terminate its certificate of incorporation or by-laws or any other constituent
documents, in any manner which would materially and adversely affect the
interests of any of the Lenders hereunder.
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SECTION 6.07. MERGERS; ASSET SALES. (a) The Company shall not, and
shall not permit any other Borrower or any other of its Significant Subsidiaries
to, merge or consolidate with any Person; PROVIDED, HOWEVER, that the Company or
any other Borrower or any other Significant Subsidiary thereof may merge with
another Person if (i) in the case of a merger involving the Company, the Company
is the surviving corporation, (ii) in the case of a merger involving another
Borrower, such Borrower is the surviving corporation, (iii) in the case of a
merger involving a Significant Subsidiary, or other Subsidiary of the Company,
the surviving corporation shall be a Subsidiary of the Company, and (iv) after
giving effect to such merger, no Potential Default or Event of Default would
then exist; and PROVIDED FURTHER that notwithstanding anything to the contrary
in this Section 6.07, the Company may sell any of its other Subsidiaries to a
third party by way of a merger transaction so long as such sale is otherwise
permitted under this Agreement.
(b) The Company shall not, and shall not permit any other Credit
Party to, sell or otherwise dispose of all or substantially all of the assets of
the Company and its Subsidiaries, taken as a whole, to any other Person or
Persons.
(c) Except for the Permitted CIT Sale, the Company shall not, and
shall not permit any Subsidiary to, make any Asset Sale unless (i) the
consideration therefor is not less than the fair market value of the related
asset (as determined in good faith by a Responsible Officer of the Company),
(ii) the consideration therefor consists solely of cash or cash equivalents
received at closing and (iii) before and after giving effect to such Asset Sale,
no Event of Default would then exist; PROVIDED that if the condition specified
in this clause (iii) would have been satisfied on the date the Company or a
Subsidiary entered into a binding commitment to make an Asset Sale had such
Asset Sale been consummated on the date of such commitment, and such Asset Sale
is thereafter consummated pursuant to and in accordance with such commitment,
such Asset Sale shall be permitted under this subsection (c) notwithstanding any
Event of Default that may exist at the date of consummation of such Asset Sale.
SECTION 6.08. ERISA OBLIGATIONS. The Company shall not, and shall not
permit any of its Subsidiaries to, engage in a transaction in connection with
which the Benefit Plans, the Company, any of its Subsidiaries or any entity
which they have an obligation to indemnify could be subject to liability for
either a civil penalty assessed pursuant to Section 502(i) or 502(1) of ERISA or
a tax imposed by Section 4975 of the Code or any other material liability Plan
or Benefit Plan, take any other action with respect to any such Pension Plan or
Benefit Plan if such termination or other action could result in liability, or
take any action or fail to take any action which could result in withdrawal
liabilities under Title IV of ERISA or liability under Section 502(g) of ERISA
or any analogous provision
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relating to Section 515 of ERISA; fail to make any payments on a timely basis
which are required under applicable Law (including Section 412 of the Code) to
be paid as contributions to Pension Plans; incur an accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, with respect to any Pension Plan; amend any Pension Plan
in a manner which would require the granting of a security interest to maintain
the continued qualification of such Pension Plan under Section 401(a)(29) of the
Code, if, in any case described herein, or together with any other event
described herein, such action, failure to act, event or transaction would (i)
result in an ERISA Lien not otherwise permitted under this Agreement or (ii)
have a Material Adverse Effect.
SECTION 6.09. SIGNIFICANT FOREIGN SUBSIDIARIES. The Company shall not
permit any of its Significant Foreign Subsidiaries to create, assume or suffer
to exist any Indebtedness the terms of which, prior to a payment default
thereunder, would restrict dividends to be paid with respect to the consolidated
net income of such Affiliate for any fiscal year by more than 40% of the
consolidated net income of such Affiliate for such fiscal year. For purposes of
this Section, "SIGNIFICANT FOREIGN SUBSIDIARIES" shall mean Xxxxxx Xxxxxxx
Limited (UK), Xxxxxx Xxxxxxx France, S.A., Xxxxxx Xxxxxxx Italiana, S.p.A.,
Xxxxxx Xxxxxxx Iberia, S.A., Xxxxxx Xxxxxxx Energia Oy and their respective
successors and any other Foreign Subsidiary of the Company (other than a Special
Purpose Subsidiary) having assets (determined on a consolidated basis with its
own Subsidiaries, if any) in an amount greater than 1% of the consolidated
assets of the Company and its Subsidiaries as of the end of the most recent
fiscal year of the Company for which financial statements are available.
SECTION 6.10. CERTAIN AGREEMENTS. (a) The Company will not become or
be a party to any agreement or instrument relating to Indebtedness for borrowed
money (other than (i) the Exit Funding Agreement, (ii) the Convertible
Subordinated Notes, (iii) the Indenture between the Company (as successor to
Xxxxxx Xxxxxxx Corporation) and Xxxxxx Trust and Savings Bank, as Trustee, as in
effect on the Effective Date (the "INDENTURE"), filed as an exhibit to the
Company's (as successor to Xxxxxx Xxxxxxx Corporation) Registration Statement on
Form S-3 (registration no. 33-61809) and (iv) the other Debt Instruments
identified in Schedule 3.07) which contains any covenant or event of default
which could result in such Indebtedness becoming or being declared to be due and
payable prior to its stated maturity (including by a requirement for purchase or
prepayment) upon the occurrence of an event or condition which is not an event
or condition the occurrence of which could cause the Loans to become or be
declared to be (other than pursuant to Section 7.01(l) hereto) due and payable
prior to their stated maturity, unless the Company shall make an "Amendment
Offer" (as hereinafter defined); PROVIDED that this covenant shall not be
violated by (i) an
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agreement to pay the principal of and interest on such Indebtedness in
accordance with its terms or to provide to the holders of such Indebtedness or
an agent or trustee for such holders any information which the Company is
obligated to provide to the Lender or an Agent hereunder or (ii) any agreement
or instrument relating to Indebtedness on account of a Financing Lease or
secured by Purchase Money Security Interest, any covenant or event of default of
which principally relates to the use, condition or disposition of the property
financed or acquired or constructed with such Indebtedness. As used herein, an
"Amendment Offer" is an effective offer by the Company to the Administrative
Agent to amend this Agreement, which offer shall be made no later than ten days
after the Company becoming party to an agreement or instrument referred to in
the first sentence of this Section 6.10, to amend this Agreement (without
deleting or overriding any term or provision of this Section 6.10) in a way that
the first sentence of this Section would not otherwise be applicable to such
agreement or instrument. The Administrative Agent, if so instructed by the
Required Lenders, shall accept or decline such Amendment Offer within thirty
days thereof, and a failure to so respond shall be deemed a declination of such
Amendment Offer.
(b) The Company shall not, and shall not suffer any other Credit
Party to enter into or permit to exist any agreement that restricts the ability
of any Wholly- Owned Domestic Subsidiary that is (or is required to become) a
Guarantor (i) to pay dividends or other distributions, or to make or repay loans
or advances, to the Company or, in the case of dividends, to any other
Subsidiary owning capital stock of such Subsidiary or (ii) to grant Liens on its
assets; PROVIDED that the foregoing shall not apply to:
(i) customary restrictions and conditions contained in (x) any
agreement relating to the sale of any such Wholly-Owned Domestic
Subsidiary, or all or substantially all of its assets, pending such sale or
(y) any agreement relating to secured Indebtedness permitted by this
Agreement, if such restrictions or conditions apply only to such Wholly-
Owned Domestic Subsidiary or to the property or assets securing such
Indebtedness, as the case may be;
(ii) customary provisions in leases and other contracts restricting
the assignment thereof;
(iii) restrictions and conditions existing with respect to any
Person at the time it becomes such a Wholly-Owned Domestic Subsidiary and
not created in contemplation of such Person becoming such a Wholly-Owned
Domestic Subsidiary, which restrictions are not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
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property or assets of the Person becoming such a Wholly-Owned
Domestic Subsidiary;
(iv) the Loan Documents and other existing agreements as in effect
on the Effective Date and any amendments, modifications, renewals or
supplements thereof so long as any such restrictions are no more
restrictive in any material respect than those that exist on the
Effective Date;
(v) customary restrictions and conditions in connection with a
Securitization Transaction or the Perryville Lease Facilities; PROVIDED
that no such restrictions in connection with a Securitization Transaction
shall restrict the pledge pursuant to the Collateral Documents of Equity
Interests of any related Special Purpose Subsidiary; and
(vi) restrictions arising under applicable law.
SECTION 6.11. RESTRICTED PAYMENTS. The Company shall not, and shall
not suffer or permit any Subsidiary to, declare or make any Restricted Payment;
except that:
(i) any wholly-owned Subsidiary may declare and make dividend
payments or other distributions to, or repay Indebtedness owed to, the
Company or to another wholly-owned Subsidiary;
(ii) any non-wholly-owned Subsidiary may declare and make dividend
payments or other distribution to its shareholders or other equity
holders generally so long as the Company or its respective Subsidiary
which owns the equity interest in the Subsidiary paying such dividends or
other distributions receives at least its proportionate share thereof
(based upon its relative holdings of the equity interest in the
Subsidiary paying such dividends or other distributions and taking into
account the relative preferences, if any, of the various classes of
equity interest of such Subsidiary);
(iii) the Company and any Subsidiary may declare and make dividend
payments or other distributions, in each case, payable solely in its
stock;
(iv) the Company may declare or make cash Restricted Payments to
Parent and/or Foreign Holdings to the extent (and only to the extent)
necessary to enable Parent and/or Foreign Holdings to pay (A) their
respective taxes, their respective operating expenses incurred in the
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ordinary course of business (including, without limitation,
directors' fees and expenses, employee compensation, governmental
fees (including all Securities and Exchange Commission filing fees),
legal, accounting and other professional fees and expenses,
indemnities and lease obligations but excluding dividend payments to
shareholders of Parent) and similar corporate overhead costs and
expenses and (B) regularly accruing interest payments on the
Convertible Subordinated Notes and any other Subordinated
Indebtedness that has been issued by the Parent (in each case,
subject to the subordination provisions thereof);
(v) any Credit Party may incur a Guarantee permitted under Section
6.03(l); and
(vi) the Company may declare and make dividend payments to Parent to
enable Parent to purchase, or the Company or a Subsidiary may purchase,
shares of Parent's capital stock to deliver to directors as directors'
fees in lieu of cash, PROVIDED that such purchases are made on a basis
consistent with past practice and the aggregate amount paid for such
shares does not exceed $400,000 in any fiscal year.
SECTION 6.12. TRANSACTIONS WITH AFFILIATES. The Company will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Company or any of its Subsidiaries, other than on terms and
conditions substantially as favorable to the Company or such Subsidiary as would
be obtainable by the Company or such Subsidiary at the time in a comparable
arm's-length transaction with a Person other than an Affiliate. Notwithstanding
the foregoing, the provisions of this Section 6.12 shall not prohibit (i)
Restricted Payments permitted under Section 6.11 hereof, (ii) loans and other
advances that may from time to time be made to directors, officers and/or
employees of the Company or any of its Subsidiaries in the ordinary course of
business, (iii) customary fees paid to directors of the Company and its
Subsidiaries, (iv) the entering into, and making payments under, employment
agreements, employee benefit plans, indemnification provisions and other similar
compensatory arrangements with directors, officers and/or employees of the
Company and its Subsidiaries in the ordinary course of business, (v) Parent,
Foreign Holdings, the Company and/or one or more Subsidiaries of the Company may
enter into arrangements relating to the operation of the on-going administrative
functions of Parent and its consolidated group (including, without limitation,
tax, benefit plans, human resource functions, stock plans, payroll functions,
and preservation of intellectual property rights and related intellectual
property matters) and (vi) transactions between or among the Company and its
Subsidiaries to the extent that such transactions are not otherwise prohibited
by the terms of this Agreement.
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SECTION 6.13. CAPITAL EXPENDITURES. The Company shall not, and shall
not permit any of its Subsidiaries (other than Special Purpose Subsidiaries) to,
make any Capital Expenditures, except that during any fiscal year of the
Company, the Company and its Subsidiaries (other than Special Purpose
Subsidiaries) may make Capital Expenditures so long as the aggregate amount of
such Capital Expenditures does not exceed $22,000,000 in fiscal year 2002,
$25,000,000 in fiscal year 2003 or $30,000,000 in fiscal years 2004 and 2005;
PROVIDED that the Company and its Subsidiaries may make Capital Expenditures in
excess of such amounts (i) to the extent financed by (A) the reinvestment of
insurance and condemnation proceeds not otherwise required to be applied under
Section 2.12(b) or (B) the excess of the Retained Amount over the sum of (x)
$100,000,000 plus (y) the aggregate amount of cash collateral posted in reliance
on Section 6.02(g) and (ii) to the extent that Capital Expenditures in any
fiscal year are less than the applicable amounts specified above, in which case
an amount equal to the difference may be carried forward to increase the
permitted amount of Capital Expenditures for the following fiscal year (but not
the permitted amount used to determine whether there is a permitted carryforward
to a subsequent fiscal year). "CAPITAL EXPENDITURES" shall mean any expenditure
for fixed or capital assets (including, without limitation, expenditures for
maintenance and repairs which are capitalized in accordance with GAAP and
Capitalized Lease Obligations).
SECTION 6.14. LIMITATION ON MODIFICATIONS OF TERMS OF CERTAIN
INDEBTEDNESS. The Company and Parent will not, and will not permit any of their
Subsidiaries to amend or modify, or permit the amendment or modification of any
instrument evidencing or governing any Subordinated Indebtedness, which is in
the judgment of the Administrative Agent in any way adverse to the interests of
the Lenders without the consent of the Required Lenders.
SECTION 6.15. HEDGING AGREEMENTS. The Company will not, and will not
permit any Subsidiary to, enter into any Hedging Agreement, other than Hedging
Agreements existing on the Effective Date and other Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate risks to which the
Company or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
SECTION 6.16. BANK ACCOUNTS. (a) The aggregate cash balances in all
bank accounts maintained by the Company and its Wholly-Owned Domestic
Subsidiaries that are Credit Parties with any depositary institution which is
not a Lender (or any Affiliate of a Lender) shall not at any time exceed
$1,000,000; it being understood that such calculation shall not include (i) any
cash collateral permitted to be pledged as collateral for other creditors under
Section 6.02 (including, but not limited to, a pledge in connection with a
Securitization
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Transaction) or (ii) any cash held in any dedicated bank accounts for a specific
commercial contract (A) if such amounts are funded (x) by third party clients or
(y) by the Company or a Subsidiary for payroll purposes and (B) so long as no
more than $5,000,000 in the aggregate is held in such dedicated bank accounts
for more than ten consecutive Business Days, PROVIDED that any such amounts
described in clauses (i) and (ii) shall be so pledged or held in the ordinary
course of business.
(b) The bank accounts established and maintained in jurisdictions
outside the United States of America by the Company and its Wholly-Owned
Domestic Subsidiaries that are Credit Parties from time to time with any
depositary institution which is a Lender (or an Affiliate thereof) shall have
cash balances only as is necessary or may otherwise be required from time to
time in connection with the overseas operations of the Company and its
Subsidiaries.
ARTICLE 7
DEFAULTS
SECTION 7.01. EVENT OF DEFAULT. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrowers shall fail to pay when due principal of any Loan
or of any Letter of Credit Obligation.
(b) The Borrowers shall fail to pay when due interest on any Loan,
any fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and such failure shall have continued for a period of two
Business Days.
(c) Any representation or warranty made or deemed made by the
Company or any Subsidiary of the Company in or pursuant to any Loan Document or
in any certificate delivered thereunder, or any statement made by the Company or
any Subsidiary of the Company in any financial statement, certificate, report,
exhibit or document furnished by the Company or any Subsidiary of the Company to
any Agent or any Lender pursuant to or in connection with any Loan Document,
shall prove to have been false or misleading in any material respect as of the
time when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
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(d) Any Borrower shall default in the performance or observance of
any covenant contained in Article 6 hereof or any Borrower shall default in the
observance of any covenant contained in Section 5.01(h) hereof.
(e) Any Credit Party shall default in the performance or observance
of any other covenant, agreement or duty under this Agreement or any other Loan
Document and such default shall have continued for a period of 30 days after
notice of such default from the Administrative Agent to the Company.
(f) (i) Any Credit Party or any other Significant Subsidiary (other
than a Special Purpose Subsidiary) of the Company shall fail to perform or
observe any term, condition or covenant of any bond, note, debenture, loan or
letter of credit agreement, indenture, guaranty, trust agreement, mortgage or
any other instrument evidencing, governing or relating to Indebtedness to which
any Credit Party or any such other Significant Subsidiary (other than a Special
Purpose Subsidiary) is a party or by which it is bound, or by which any of its
properties or assets may be affected (a "DEBT INSTRUMENT"), so that, as a result
of any such failure to perform, the Indebtedness included therein or secured or
covered thereby may at the time be declared due and payable prior to the date on
which such Indebtedness would otherwise become due and payable; or (ii) any
event or condition referred to in any Debt Instrument shall occur or fail to
occur, so that, as a result thereof, the Indebtedness included therein or
secured or covered thereby may at such time be declared due and payable prior to
the date on which such Indebtedness would otherwise become due and payable; or
(iii) any Credit Party or any other Significant Subsidiary of the Company (other
than any Special Purpose Subsidiary) shall fail to pay any Indebtedness when
due, pursuant to demand under any Debt Instrument or otherwise, subject to any
applicable grace period or shall fail to make any payment required to be made
under the Exit Funding Agreement when due; PROVIDED, HOWEVER, that the
provisions of this Section 7.01(f) shall not be applicable to Indebtedness or
any Debt Instrument or Debt Instruments which relate to or evidence Indebtedness
which, on the date this Section 7.01(f) would otherwise be applicable thereto,
is in the principal amount of less than $5,000,000 (or its equivalent in any
foreign currencies) in the aggregate.
(g) One or more judgments for the payment of money shall have been
entered against any Credit Party or any other Significant Subsidiary (other than
a Special Purpose Subsidiary or Tray, Inc.), which judgment or judgments exceed
$5,000,000 (or its equivalent in any foreign currencies) in the aggregate
(exclusive of amounts covered by a solvent and reputable insurance company which
shall not have denied its responsibility therefor), and such judgment or
judgments shall have remained unpaid, undischarged and unstayed for a period of
30 consecutive days.
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(h) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value $5,000,000 (or its
equivalent in any foreign currencies) in the aggregate (exclusive of amounts
covered by a solvent and reputable insurance company which shall not have denied
its responsibility therefor) shall have been issued against any Credit Party or
any other Significant Subsidiary (other than a Special Purpose Subsidiary or
Tray, Inc.) or any of their respective properties and shall have remained
undischarged and unstayed for a period of 30 consecutive days.
(i) Any material term or provision of this Agreement or any
Guarantor's Guarantee of the Obligations shall cease to be in full force and
effect, or any Credit Party shall, or shall purport to, terminate, repudiate,
declare voidable or void or otherwise contest, any material term or provision
hereof or any obligation or liability of the Credit Parties hereunder or
thereunder.
(j) (i) Any Pension Plan is terminated pursuant to Section 4041 or
4042 of ERISA and the benefit liabilities exceed the assets based upon the
assumptions used by the PBGC on plan termination by an amount such that the
termination of such Pension Plan would have a Material Adverse Effect; (ii) the
Company or any of its Subsidiaries (or a member of their respective Controlled
Group) incur a liability under Section 4062, 4063 or 4064 of ERISA for an amount
that such liability would materially and adversely affect the financial
condition of the Company and its Subsidiaries taken as a whole; or (iii) any
other event or events shall occur with respect to any employee benefit plan
whether or not subject to ERISA which individually or in the aggregate results
in a Material Adverse Effect.
(k) The obligations of the Company hereunder shall at any time cease
to be (i) "Senior Debt" as defined in the Exit Funding Agreement or (ii) "Senior
Debt" or "Designated Senior Debt" as defined in the Indenture for the
Convertible Subordinated Notes.
(l) A proceeding shall have been instituted in respect of any Credit
Party or any other Significant Subsidiary (other than a Special Purpose
Subsidiary or Tray, Inc.)
(i) seeking to have an order for relief entered in respect of such
Person, or seeking a declaration or entailing a finding that such
Person is insolvent or a similar declaration or finding, or seeking
dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganization, arrangement, adjustment, composition or
other similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy,
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insolvency, relief of debtors or protection of creditors,
termination of legal
entities or any other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all
or any substantial part of its property
and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of 30 consecutive days.
(m) Any Credit Party or any other Significant Subsidiary (other than
a Special Purpose Subsidiary or Tray, Inc.) shall voluntarily suspend
transaction of its business; shall make a general assignment for the benefit of
creditors; shall institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in Section 7.01(l)(i) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in any
such order for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(l)(ii) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such
appointment or to the taking of possession by any such custodian of all or any
substantial part of its or his property; shall dissolve, wind-up, revoke or
forfeit its charter (or other constituent documents) or liquidate itself or any
substantial part of its property; or shall take any corporate or similar action
in furtherance of any of the foregoing.
(n) A Change of Control shall occur.
(o) Any Lien purported to be created under any Collateral Document
shall cease to be, or shall be asserted by any Credit Party not to be, a valid
and perfected Lien on any material portion of the Collateral, with the
perfection and priority required by the applicable Collateral Document, except
(i) as a result of a sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a result of the
Collateral Agent's failure to maintain possession of any stock certificates,
promissory notes or other documents delivered to it under the Security
Agreement.
SECTION 7.02. CONSEQUENCES OF AN EVENT OF DEFAULT. (a) If an Event of
Default specified in subsections (a) through (k) or subsections (n) or (o) of
Section 7.01 hereof, or in subsections (l) through (m) with respect to a Credit
Party (other than a Borrower) or a Significant Subsidiary, shall occur and be
continuing or shall exist, then, in addition to all other rights and remedies
which any Agent or any Lender may have hereunder or under any other Loan
Document,
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at law, in equity or otherwise, the Lenders shall be under no further obligation
to make Loans hereunder and the LC Issuer shall be under no further obligation
to Issue Letters of Credit hereunder, and the Administrative Agent may, and upon
the written request of the Required Lenders shall, by notice to the Company,
from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the Commitments
will terminate and any fees hereunder shall be immediately due and
payable without presentment, demand, protest or further notice of any
kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
(ii) Declare the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations to be immediately due and
payable without presentment, demand, protest or further notice of any
kind, all of which are hereby waived, and an action therefor shall
immediately accrue and demand the Company immediately to Cash
Collateralize the full amount then available for drawing under any and
all outstanding Letters of Credit.
(b) If an Event of Default specified in subsection (1) or (m) of
Section 7.01 hereof shall occur or exist with respect to any Borrower, then, in
addition to all other rights and remedies which any Agent or any Lender may have
hereunder or under any other Loan Document, at law, in equity or otherwise, the
Commitments shall automatically terminate and the Lenders shall be under no
further obligation to make Loans and the LC Issuer shall be under no further
obligation to Issue Letters of Credit, and the unpaid principal amount of the
Loans, interest accrued thereon and all other Obligations shall become
immediately due and payable and each applicable Borrower shall immediately Cash
Collateralize the full amount then available for drawing under all outstanding
Letters of Credit, without presentment, demand, protest or notice of any kind,
all of which are hereby waived, and an action therefor shall immediately accrue.
ARTICLE 8
THE AGENTS
SECTION 8.01. APPOINTMENT AND AUTHORIZATION. (a) Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent and
Collateral Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and
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perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Agents shall not
have any duties or responsibilities, except those expressly set forth herein or
in any other Loan Document, nor shall the Agents have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agents. Without limiting the generality of the foregoing sentence, the use of
the term "agent" herein and in the other Loan Documents with reference to the
Administrative Agent or the Collateral Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The LC Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the LC Issuer shall have all of the benefits and immunities (i) provided to the
Agents pursuant to this Article 8 with respect to any acts taken or omissions
suffered by the LC Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for letters of
credit pertaining to such Letters of Credit as fully as if the term "Agents" as
used in this Article 8 and the term "Administrative Agent" in the definition of
"Agent-Related Person" included the LC Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the LC
Issuer.
SECTION 8.02. DELEGATION OF DUTIES. Each Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agent or
attorney-in- fact that it selects in the absence of gross negligence or willful
misconduct.
SECTION 8.03. LIABILITY OF AGENTS. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Credit Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other
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document referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Credit Party or any other
party to any Loan Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Lender or
participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any
Credit Party or any Affiliate thereof.
SECTION 8.04. RELIANCE BY AGENTS.
(a) Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Credit Party),
independent accountants and other experts selected by such Agent. Each Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agents shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Agents shall have received
notice from such Lender prior to the proposed Effective Date specifying its
objection thereto.
SECTION 8.05. NOTICE OF DEFAULT. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Event of Default or Potential
Default, except with respect to defaults in the payment of principal, interest
and
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fees required to be paid to such Agent for the account of the Lenders, unless
such Agent shall have received written notice from a Lender or the Company
referring to this Agreement, describing such Event of Default or Potential
Default and stating that such notice is a "notice of default." Each Agent will
notify the Lenders of its receipt of any such notice. Each Agent shall take such
action with respect to such Event of Default or Potential Default as may be
directed by the Required Lenders in accordance with Article 7; PROVIDED,
HOWEVER, that unless and until such Agent has received any such direction, such
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default or Potential Default
as it shall deem advisable or in the best interest of the Lenders.
SECTION 8.06. CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENTS.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by any Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Credit Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to each Agent
that it has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent- Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers
and Guarantors. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by each Agent herein, no Agent shall
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Credit Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
SECTION 8.07. INDEMNIFICATION OF AGENTS. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand
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each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Credit Party and without limiting the obligation of any Credit Party to do so),
Pro Rata, and hold harmless each Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; PROVIDED, HOWEVER, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such Agent-
Related Person's own gross negligence or willful misconduct; PROVIDED, HOWEVER,
that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 8.07. Without limitation of the foregoing, each Lender
shall reimburse any Agent upon demand for its ratable share of any costs or
out-of- pocket expenses (including Attorney Costs) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that such Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section 8.07 shall survive termination of the Commitments, the payment
of all other Obligations and the resignation of the Agents.
SECTION 8.08. AGENTS IN THEIR INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Credit Parties and their respective Affiliates as though Bank
of America were not the Administrative Agent, Collateral Agent or the LC Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Credit Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Credit Party or such Affiliate) and acknowledge that each Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent, Collateral Agent or the LC Issuer, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
SECTION 8.09. SUCCESSOR AGENTS. Any Agent may resign upon 30 days'
notice to the Lenders; PROVIDED that any such resignation by Bank of America
shall also constitute its resignation as LC Issuer and Swingline Lender. If any
Agent resigns under this Agreement, the Required Lenders shall appoint from
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among the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be consented to by the Company at all times
other than during the existence of an Event of Default or Potential Default
(which consent of the Company shall not be unreasonably withheld or delayed). If
no successor administrative agent is appointed prior to the effective date of
the resignation of any Agent, the retiring Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Agent and the respective terms
"Administrative Agent" and "Collateral Agent" shall mean such successor
administrative agent and collateral agent and the retiring Agent's appointment,
powers and duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article 8 and Section
10.06 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
SECTION 8.10. AGENTS MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, any Agent (irrespective of whether the
principal of any Loan or LC Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether such Agent
shall have made any demand on the Borrowers) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, LC Obligations
and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the
claims of the Lenders and such Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and such Agent and their respective agents and counsel and
all other amounts due the Lenders and such Agent under Sections 2.09
and 10.06) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to such Agent and, in the event that such
Agent shall consent to the making of such payments directly to the Lenders, to
pay to such Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of such Agent and its agents and counsel, and any
other amounts due such Agent under Sections 2.09 and 10.06.
Nothing contained herein shall be deemed to authorize any Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize any Agent to vote in respect of the
claim of any Lender in any such proceeding.
SECTION 8.11. COLLATERAL AND GUARANTY MATTERS. The Lenders
irrevocably authorize the Collateral Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Collateral Agent under any Loan Document (i) upon termination of the
Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold
as part of or in connection with any sale permitted hereunder or
under any other Loan Document, or (iii) subject to Section 10.03, if
approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Collateral Agent under any Loan Document to the holder of any
Lien on such property that is permitted by Section 6.02; and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Collateral Agent at any time, the Required
Lenders will confirm in writing the Collateral Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
8.11.
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ARTICLE 9
GUARANTY
SECTION 9.01. THE GUARANTY. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder to the Borrowers and in
recognition of the direct benefits to be received by each Borrower and each
Guarantor from the proceeds of the Loans and the Letters of Credit to any
Borrower, each Guarantor hereby agrees with the Lenders as follows: each
Guarantor hereby unconditionally and irrevocably guarantees as primary obligor
and not merely as surety the full and prompt payment when due, whether upon
maturity, by acceleration or otherwise, of any and all of the Guaranteed
Obligations to the Creditors. If any or all of the Guaranteed Obligations to the
Creditors becomes due and payable hereunder, each Guarantor unconditionally
promises to pay such Guaranteed Obligations to the Creditors in the same
currency in which such Guaranteed Obligations are denominated, or order, on
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Creditors in collecting any of the Guaranteed
Obligations.
SECTION 9.02. BANKRUPTCY. Additionally, each Guarantor
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations to the Creditors whether or not then due or payable by
any Borrower upon the occurrence in respect of such Borrower of any of the
events specified in Section 7.01(l) or 7.01(m), and unconditionally and
irrevocably promises to pay such Guaranteed Obligations to the Creditors, or
order, on demand, in the same currency in which such Guaranteed Obligations are
denominated.
SECTION 9.03. NATURE OF LIABILITY. The liability of each Guarantor
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations whether executed by such Guarantor, any other
guarantor or by any other party, and the liability of each Guarantor hereunder
shall not be affected or impaired by (a) any direction as to application of
payment by any Borrower or by any other party, or (b) any other continuing or
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations of any Borrower, or (c) any payment on or
in reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower, or (e)
any payment made to the Administrative Agent or the other Creditors on the
indebtedness which the Administrative Agent or such other Creditors repay any
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding (the Guaranty shall be reinstated
in the case of any such disgorgement), and each Guarantor waives any right to
the deferral or modification of its obligations hereunder by reason of any such
proceeding.
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SECTION 9.04. INDEPENDENT OBLIGATION. The obligations of each
Guarantor hereunder are independent of the obligations of any other guarantor or
any Borrower, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
guarantor or any Borrower and whether or not any other Guarantor or any Borrower
be joined in any such action or actions. Each Guarantor waives, to the fullest
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by any Borrower or
other circumstance which operates to toll any statute of limitations as to such
Borrower shall operate to toll the statute of limitations as to each Guarantor.
SECTION 9.05. AUTHORIZATION. Each Guarantor authorizes the Creditors
without notice or demand (except as shall be required by applicable law and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against;
(c) exercise or refrain from exercising any rights against any
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, any
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of any Borrower to its creditors other than the Creditors;
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(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Borrower to the Creditors regardless of what
liability or liabilities of such Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements referred
to herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of or
defense to its liabilities under this Section 9.05.
SECTION 9.06. RELIANCE. It is not necessary for the Creditors to
inquire into the capacity or powers of any Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
SECTION 9.07. SUBROGATION; CONTRIBUTION; SUBORDINATION. (a) Each
Guarantor irrevocably waives any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder to be
subrogated to the rights of the payee against the Borrowers with respect to such
payment or against any direct or indirect security therefor, or otherwise to be
reimbursed, indemnified or exonerated by or for the account of the Borrowers in
respect thereof.
(b) Each Guarantor (a "CONTRIBUTING GUARANTOR") agrees that, in the
event a payment shall be made by any other Guarantor under this Agreement or
assets of any other Guarantor shall be sold pursuant to this Agreement to
satisfy a claim against the Borrowers (such other Guarantor, the "CLAIMING
GUARANTOR"), the Contributing Guarantor shall indemnify the Claiming Guarantor
in an amount equal to the amount of such payment or the greater of the book
value or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor as of March 31, 2002 (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 5.15 after such date, the date of
the Subsidiary Guaranty Agreement Supplement executed and delivery by such
Guarantor) and the denominator shall be the aggregate net worth of all the
Guarantors as of March 31, 2002 (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 5.15 after such date, the date of the
Subsidiary Guaranty Agreement executed and delivered by such Guarantor). All
rights of the Guarantors under this Section and any other rights of indemnity,
contribution or subrogation under
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applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations.
SECTION 9.08. WAIVER. (a) Each Guarantor waives any right (except as
shall be required by applicable law and cannot be waived) to require the
Creditors to (i) proceed against any Borrower or any other party, (ii) proceed
against or exhaust any security held from any Borrower or any other party or
(iii) pursue any other remedy in the Administrative Agent's or any other
Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of any Borrower or any other party, other than
payment in full of the Guaranteed Obligations, based on or arising out of the
disability of such Borrower, any other guarantor or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of such Borrower other
than payment in full of the Guaranteed Obligations. To the greatest extent
permitted by law, the Creditors may, at their election, foreclose on any
security held by the Administrative Agent or any other Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
other Creditors may have against any Borrower or any other party, or any
security, without affecting or impairing in any way the liability of-any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Guarantor waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Guarantor
against any Borrower or any other Guarantor or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices (except as otherwise expressly provided for herein),
including, without limitation, notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed Obligations.
Each Guarantor assumes all responsibility for being and keeping itself informed
of each Borrower's financial condition and assets, and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which each Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty to advise any
Guarantor of information known to them regarding such circumstances or risks.
SECTION 9.09. NATURE OF LIABILITY. It is the desire and intent of the
Guarantors and the Creditors that this Guaranty shall be enforced against each
Guarantor to the fullest extent permissible under the laws and public policies
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applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of any Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of such Guarantor shall be deemed to be reduced and such Guarantor
shall pay the maximum amount of the Guaranteed Obligations which would be
permissible under applicable law.
SECTION 9.10. JUDGMENTS BINDING. If claim is ever made upon any
Creditor or any subsequent holder of a Note of any Borrower for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property,
or (b) any settlement or compromise of any such claim effected by such payee
with any such claimant, then and in such event each Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon
each Guarantor, notwithstanding any revocation hereof or the cancellation of any
Note or other instrument evidencing any liability of such Borrower, and each
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. HOLIDAYS. Whenever any payment or action to be made or
taken hereunder or under any other Loan Document shall be stated to be due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
SECTION 10.02. RECORDS. The unpaid principal amount of the Loans
owing to each Lender, the unpaid interest accrued thereon, the interest rate or
rates applicable to such unpaid principal amount, the duration of such
applicability, and the amounts of the Lenders' respective Commitments shall at
all times be ascertained from the records of the Administrative Agent, which
shall be conclusive absent manifest error.
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SECTION 10.03. AMENDMENTS AND WAIVERS; RELEASE OF COLLATERAL. (a)
Neither this Agreement nor any other Loan Document may be amended, modified or
supplemented except in accordance with the provisions of this Section. The
Required Lenders and the Company (acting on behalf of the Credit Parties) may
from time to time amend, modify or supplement the provisions of this Agreement
or any other Loan Document (other than the Collateral Documents) for the purpose
of amending, adding to, or waiving any provisions or changing in any manner the
rights and duties of any Credit Party, any Agent, the LC Issuer or any Lender.
Any such amendment, modification or supplement made by the Company (acting on
behalf of the Credit Parties) and the Required Lenders, in accordance with the
provisions of this Section shall be binding upon each Credit Party, each Lender,
the LC Issuer and each Agent. The Agents shall enter into such amendments,
modifications, supplements or waivers from time to time as directed by the
Required Lenders, and only as so directed, PROVIDED that no such amendment,
modification, waiver or supplement may be made which will:
(i) Increase any Commitment over the amount thereof then in effect,
or extend the scheduled expiration date of any Commitment, without
the written consent of each Lender affected thereby (it being
understood that any waiver of a mandatory reduction in Commitments
pursuant to Section 2.12(B) may be approved by the Required Lenders);
(ii) Reduce the principal amount of or extend the time for any
scheduled payment of any Loan, or reduce the amount of or rate of
interest (other than a waiver of any increase in the applicable rate
of interest by reason of an Event of Default) or extend the time for
scheduled payment of interest borne by any Loan or extend the time
for payment of or reduce the amount of any fee or reduce or postpone
the date for payment of any fees, expenses, indemnities or amounts
payable under any Loan Document, without the written consent of each
Lender affected thereby;
(iii) Amend the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to take any action
thereunder, or amend this Section 10.03, without the written consent
of all the Lenders, or all the Lenders of such Class, as the case may
be;
(iv) Amend Section 10.13 or any provision of this Agreement that
states a requirement for the consent of all the Lenders, without the
written consent of all the Lenders;
(v) Except as contemplated by Section 10.03(b), release any of
the Borrowers or the Guarantors without the written consent
of all the
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Lenders; PROVIDED that the Required Lenders may approve the release
of Parent, Foreign Holdings or any Subsidiary that is not a
Significant Subsidiary;
(vi) Amend or waive any provision of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments
due to Lenders holding Credit Exposures of any Class differently than
those holding Credit Exposures of any other Class (including, without
limitation, except as set forth below, Section 2.12(c) hereof and
Section 20(c) of the Security Agreement), without the written consent
of Lenders having in the aggregate more than 50% of the aggregate
amount of the Credit Exposures of each affected Class at such time,
it being understood that the Required Lenders may agree to a
reduction in the Net Cash Proceeds of a Prepayment Event required to
be applied to reduce Credit Exposures pursuant to Section 2.12(b) so
long as any Net Cash Proceeds to be so applied are applied in
accordance with Section 2.12(c);
(vii) Amend or waive any of the provisions of Article 8 hereof, or
impose additional duties upon any Agent or otherwise adversely affect
the rights, interests or obligations of any Agent, without the
written consent of such Agent; or
(viii) Amend or waive any of the provisions of Section 2.04 hereof or
the Letters of Credit Related Documents, or impose additional duties
upon the LC Issuer or otherwise adversely affect the rights,
interests or obligations of the LC Issuer, without the written
consent of the LC Issuer,
and PROVIDED FURTHER that Transfer Supplements may be entered into in the manner
provided in Section 10.14 hereof. Any such amendment, modification or supplement
must be in writing and shall be effective only to the extent set forth in such
writing. Any Event of Default or Potential Default waived or consented to in any
such amendment, modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such waiver or consent,
but no such waiver or consent shall extend to any other or subsequent Event of
Default or Potential Default or impair any right consequent thereto.
(b) Any provision of the Collateral Documents may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company (acting on behalf of the Credit Parties) and Collateral Agent with
the consent of the Required Lenders and otherwise in accordance with the terms
of the Collateral Documents, PROVIDED that no such amendment or waiver shall,
unless consented to by all the Lenders, effect or permit a release of all or
substantially all of the Collateral. Notwithstanding the foregoing, Guarantees
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shall be terminated and Collateral (but not the proceeds thereof) shall be
released from the Lien of the Collateral Documents from time to time as
necessary to effect (i) any sale of assets, including the sale of a Guarantor,
(ii) any Perryville Lease Facility or (iii) any Securitization Transaction, in
each case so long as the same is permitted by the Loan Documents and the
Collateral Agent shall execute and deliver all release documents and other
ancillary or related documents reasonably requested to evidence such release or
otherwise effectuate such transactions. The Collateral Agent may conclusively
rely on a certificate of the Company as to whether any such release is permitted
hereunder.
(c) (i) Upon the request of the Company and notwithstanding anything
to the contrary contained in the Security Agreement, the Collateral Agent shall
release to the Company any amounts held as cash collateral held under the
Previous Credit Agreement at the Effective Date; PROVIDED that (A) the Company
shall have delivered two Business Days' prior written notice of such release to
the Collateral Agent and (B) the Company shall have certified that such cash
collateral is to be used in connection with the Company's and/or its
Subsidiaries' operations. The Collateral Agent may conclusively rely on a
certificate of the Company as to the matters described in clause (B) above.
(ii) To the extent that any such cash collateral has not previously
been released, on the 91st day following the Effective Date (or on the
next succeeding Business Day, if such 91st day is not a Business Day), so
long as no Potential Default or Event of Default shall at the time have
occurred and be continuing, the Collateral Agent shall release to the
Company the remainder of such cash collateral. The Collateral Agent may
conclusively rely on a certificate of the Company as to whether any such
release is permitted hereunder.
(iii) The parties hereto acknowledge that any such release of cash
collateral is intended (A) to the extent such release occurs on the
Effective Date, to be a contemporaneous exchange for new value given to
the Credit Parties and (B) to the extent such release occurs thereafter,
to be a grant of new value to or for the benefit of the Credit Parties.
SECTION 10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of any Agent or any Lender in exercising any
right, power or privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Agents and the
Lenders under
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this Agreement and any other Loan Document are cumulative and not exclusive of
any rights or remedies which any Agent or any Lender would otherwise have
hereunder or thereunder, at law, in equity or otherwise.
SECTION 10.05. NOTICES. (a) GENERAL. Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Company or any other Borrower, Parent, Foreign
Holdings or any Holdco, the Administrative Agent, the Collateral Agent,
the LC Issuer or the Swingline Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.05 or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party in
a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the Company, each Agent, the LC Issuer, the
Term Lender and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii)(A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; PROVIDED, HOWEVER, that notices and other communications
to each Agent, the LC Issuer and the Swingline Lender pursuant to Article 2
shall not be effective until actually received by such Person. In no event shall
a voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
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Credit Parties, the Agents and the Lenders. Any Agent may also require that any
such documents and signatures be confirmed by a manually-signed original
thereof; PROVIDED, HOWEVER, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 5.01 and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. Each Agent and the
Lenders shall be entitled to rely and act upon any notices purportedly given by
or on behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Each Borrower shall indemnify
each Agent-Related Person and each Lender from all losses and liabilities, and
all reasonable costs and expenses, resulting from the reliance by such Person on
each notice purportedly given by or on behalf of such Borrower. All telephonic
notices to and other communications with any Agent may be recorded by such
Agent, and each of the parties hereto hereby consents to such recording.
(e) Each Agent and each Lender may rely on any notice (whether or
not such notice is made in a manner permitted or required by this Agreement or
any Loan Document) purportedly made by or on behalf of the Company (including
acting on behalf of any Borrower) and any other Borrower, and neither Agent nor
any Lender shall have any duty to verify the identity or authority of any Person
giving such notice.
SECTION 10.06. EXPENSES; TAXES; INDEMNITY. (a) Each Borrower agrees
(i) to pay or reimburse each Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby (including the custody, preservation, use, operation or sale of any of
the Collateral) including all Attorney Costs, and (ii) to pay or reimburse each
Agent and each Lender for all reasonable costs and expenses incurred in
connection with any failure by any Credit Party to perform or observe any of the
provisions of any Loan Document or the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents
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(including the collection from or other realization upon any of the Collateral
and all such costs and expenses incurred during any "workout" or restructuring
in respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
reasonable out-of-pocket expenses incurred by each Agent and the cost of
independent public accountants and other outside experts retained by such Agent.
All amounts due under this Section 10.06 shall be payable within ten Business
Days after demand therefor. The agreements in this Section shall survive the
termination of the Commitments and repayment of all other Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Borrowers shall indemnify and hold harmless each Agent- Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"INDEMNITEES") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (i)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (ii) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the LC Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), or (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Company, any Subsidiary or any other Credit Party, or
any Environmental Liability related in any way to the Company, any Subsidiary or
any other Credit Party, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all of
the foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; PROVIDED that such indemnity shall not, as to any Indemnitee,
be available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or
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willful misconduct of such Indemnitee. No Indemnitee shall be liable for any
damages arising from the use by others of any information or other materials
obtained through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Effective Date). All amounts due under
this Section 10.06 shall be payable within ten Business Days after demand
therefor. The agreements in this Section 10.06 shall survive the resignation of
any Agent, the replacement of any Lender, the termination of the Commitments and
the repayment, satisfaction or discharge of all the other Obligations.
SECTION 10.07. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
SECTION 10.08. PRIOR UNDERSTANDINGS. This Agreement and the other
Loan Documents supersede all prior and contemporaneous understandings and
agreements other than with regard to any upfront fees, whether written or oral,
among the parties hereto relating to the transactions provided for herein and
therein.
SECTION 10.09. DURATION; SURVIVAL. All representations and warranties
made hereunder and in any other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by each Agent and each Lender,
regardless of any investigation made by any Agent or any Lender or on their
behalf and notwithstanding that any Agent or any Lender may have had notice or
knowledge of any Event of Default at the time of any credit extension hereunder,
and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding. All covenants and agreements of the Credit Parties
contained herein or in any other Loan Document shall continue in full force and
effect from and after the date hereof so long as any Borrower may borrow
hereunder or request the Issuances of Letters of Credit and until payment in
full of all Obligations other than indemnity obligations not yet due and
payable. Without limitation, all obligations of each Borrower hereunder or under
any other Loan Document to make payments to or indemnify each Agent or any
Lender shall survive the payment in full of all other obligations, termination
of such Borrower's right to
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borrow hereunder, and all other events and conditions whatever. In addition, all
obligations of each Lender to make payments to or indemnify the Agents shall
survive the payment in full by the Borrowers of all Obligations, termination of
each Borrower's right to borrow hereunder, and all other events or conditions
whatever.
SECTION 10.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
SECTION 10.11. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, no Borrower shall be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by such Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
SECTION 10.12. SET-OFF. Each Credit Party hereby agrees that, to the
fullest extent permitted by law, if any Obligation of any Credit Party shall be
due and payable (by acceleration or otherwise), each Lender and the LC Issuer
shall have the right, without notice to the Company, such other Credit Party or
any other Person, to set-off against and to appropriate and apply to the
Obligation any indebtedness, liability or obligation of any nature owing to such
Credit Party by such Lender or the LC Issuer, including, without limitation, all
deposits (whether time or demand, general or special, provisionally credited or
finally credited, whether or not evidenced by a certificate of deposit and in
whatever currency denominated) now or hereafter maintained by such Credit Party
with such Lender or the LC Issuer, as the case may be. Such right shall be
absolute and unconditional in all circumstances and, without limitation, shall
exist whether or not such Lender or the LC Issuer or any other Person shall have
given notice or made any demand to the Company, such other Credit Party or any
other Person, whether such indebtedness, obligation or liability owed to such
Credit Party is contingent, absolute, matured or unmatured (it being agreed that
such Lender or the LC Issuer may deem such indebtedness, obligation or liability
to be then due and payable at the time of such setoff), and regardless of the
existence or adequacy of any collateral, guaranty or any other security, right
or remedy available to any Lender or the LC Issuer or any other Person. Each
Credit Party hereby agrees that, to the fullest extent permitted by law, any
Participant and any branch, subsidiary or affiliate of any Lender or any
Participant shall have the same
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rights of set-off as a Lender as provided in this Section 10.12 (regardless of
whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of any Borrower). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
SECTION 10.13. SHARING OF COLLECTIONS. The Lenders hereby agree among
themselves that if any Lender shall receive (by voluntary payment, realization
upon security, set-off or from any other source) any amount on account of the
Loans, interest thereon, or any other Obligation contemplated by this Agreement
or the other Loan Documents to be made by any Borrower pro rata to all Lenders
of any Class in greater proportion than any such amount received by any other
Lender of such Class, then the Lender receiving such proportionately greater
payment shall notify each other such Lender and the Agents of such receipt, and
equitable adjustment will be made in the manner stated in this Section so that,
in effect, all such excess amounts will be shared ratably among all of the
Lenders of such Class. The Lender receiving such excess amount shall purchase
(which it shall be deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other Lenders of such Class, a participation in
the applicable Obligations owed to such other Lenders in such amount as shall
result in a ratable sharing by all Lenders of such Class, of such excess amount
(and to such extent the receiving Lender shall be a Participant). If all or any
portion of such excess amount is thereafter recovered from the Lender making
such purchase, such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, together with interest or other amounts, if any,
required by Law to be paid by the Lender making such purchase. Each Borrower
hereby consents to and confirms the foregoing arrangements. Each Participant
shall be bound by this Section as fully as if it were a Lender hereunder.
SECTION 10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of each Borrower, the LC Issuer, the Lenders, all future holders of
the Notes, each Agent and their respective successors and assigns, except that
no Borrower may assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and each Agent, and
any purported assignment without such consent shall be void.
(b) PARTICIPATIONS. Any Lender may, in accordance with applicable
Law and without the consent of any Credit Party, at any time sell participations
to one
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or more commercial banks or other Persons (each a "PARTICIPANT") in all or a
portion of its rights and/or obligations under this Agreement and the other Loan
Documents (including, without limitation, all or a portion of its Commitments
and the Loans owing to it and any Note held by it); PROVIDED that:
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan
Documents,
(iv) such Participant shall be bound by the provisions of Sections
10.13 and 10.16 hereof, and the Lender selling such participation
shall obtain from such Participant a written confirmation of its
agreement to be so bound,
(v) no Participant (unless such Participant is an affiliate of such
Lender, or is itself a Lender) shall be entitled to require such
Lender to take or refrain from taking action under this Agreement or
under any other. Loan Document, except that such Lender may agree
with such Participant that such Lender will not, without such
Participant's consent, take action of the type described in
subsections (i), (ii), (iii) or (iv) of Section 10.03(A) hereof to
the extent relating to such Participant's participation;
notwithstanding the foregoing, in no event shall any participation by
any Lender have the effect of releasing such Lenders from its
obligations hereunder, and
(vi) no Participant shall be an Affiliate of any Credit Party.
Each Borrower agrees that any such Participant shall be entitled to
the benefits of Sections 2.14, 2.16 and 10.06 with respect to its participation
in the Commitments and the Loans outstanding from time to time but only to the
extent such Participant sustains such losses; PROVIDED that no such Participant
shall be entitled to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred to such Participant had no such transfer
occurred and nothing in this Section shall relieve such transferor Lender from
its obligations under Section 2.17 hereof.
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(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it) to any Eligible
Assignee (each a "PURCHASING LENDER"); PROVIDED that
(i) any such assignment to a Purchasing Lender which is not a Lender
shall be made only with the consent of the Company (PROVIDED that
such consent of the Company shall not be required upon the occurrence
and during the continuance of an Event of Default) and each Agent,
which consents shall not be unreasonably withheld (it being
understood that the consent of the Administrative Agent shall be
deemed to have been reasonably withheld if any proposed assignee does
not have (A) a satisfactory credit relationship with the
Administrative Agent and (B) a demonstrated availability to absorb
the Credit Exposure after giving effect to the proposed assignment,
unless such a proposed assignee which does not satisfy the criteria
set forth in clauses (A) and/or (B) provides the Administrative Agent
a standby letter of credit issued by a bank acceptable to the
Administrative Agent in an amount equal to the proposed assignee's
Letter of Credit Commitment after giving effect to the proposed
assignment and substantially in the form of Exhibit J),
(ii) if a Lender makes such an assignment of less than all of its
then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $2,500,000 of the
Commitments and Loans then outstanding, and such assignment shall be
in a minimum aggregate principal amount of $2,500,000 of the
Commitments and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of the assigned Commitment and/or Loans of the
transferor Lender and of all of the transferor Lender's rights and
obligations under this Agreement and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit D, duly completed (a
"TRANSFER SUPPLEMENT").
In order to effect any such assignment, the transferor Lender and the
Purchasing Lender shall execute and deliver to the Administrative Agent a duly
completed Transfer Supplement (including the consents required by clause (i) of
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the preceding sentence) with respect to such assignment, together with any Note
or Notes subject to such assignment (the "TRANSFEROR LENDER NOTES") and a
processing and recording fee of $3,500; and, upon receipt thereof, the
Administrative Agent shall accept such Transfer Supplement. Upon receipt of the
Purchase Price Receipt Notice pursuant to such Transfer Supplement, the
Administrative Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Transfer Supplement:
(x) the Purchasing Lender shall be a party hereto and, to the extent
provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from its
obligations under this Agreement to the extent so transferred (and, in
the case of an Transfer Supplement covering all or the remaining portion
of a transferor Lender's rights and obligations under this Agreement,
such transferor Lender shall cease to be a party to this Agreement) from
and after the Transfer Effective Date.
To the extent requested by the Purchasing Lender, on or prior to the
Transfer Effective Date specified in an Transfer Supplement, the Borrowers, at
their expense, shall execute and deliver to the Administrative Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Commitments or Loans and (for delivery to the transferor Lender)
replacement Notes in the principal amount of the Loans or Commitments retained
by the transferor Lender (such Notes to be in exchange for, but not in payment
of, those Notes then held by such transferor Lender). Each such Note shall be
dated the date and be substantially in the form of the predecessor Note. The
Administrative Agent shall xxxx the predecessor Notes, if any, "exchanged" and
deliver them to the Company. Accrued interest and accrued fees shall be paid to
the Purchasing Lender at the same time or times provided in the predecessor
Notes and this Agreement.
A transfer by a Lender of its rights under this Agreement from one of
such Lender's branches to another of its branches shall not be considered to be
an assignment for the purposes of this Section 10.14 and shall be permitted
without the consent of any Borrower or of the Agents, PROVIDED that to the
extent such transfer would, at the time of such transfer, result in increased
costs under Section 2.14 or 2.16 from those being charged by the transferring
branch, the Borrowers shall not be obligated to pay such increased costs
(although the Borrowers shall be, jointly and severally, obligated to pay any
other increased costs of the type described above resulting from changes after
the date of the respective transfer).
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The foregoing proviso shall also apply to such transfer from a Lender to another
Lender or any affiliate thereof or of an affiliate of such transferor Lender or
to a Person which will become a Lender.
(d) REGISTER. The Administrative Agent shall maintain at its office
a copy of each Transfer Supplement delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive absent manifest
error and the Borrowers, the Agents and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) FINANCIAL AND OTHER INFORMATION. The Company authorizes each
Agent and each Lender to disclose to any Participant or Purchasing Lender (each,
a "TRANSFEREE ") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Company and its
Subsidiaries and Affiliates which has been or may be delivered to such Person by
or on behalf of the Company in connection with this Agreement or any other Loan
Document or such Person's credit evaluation of the Company and its Subsidiaries
and Affiliates; subject, however, to the provisions of Section 10.16 hereof.
(f) Notwithstanding anything to the contrary contained herein, any
Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company, the option
to provide to any Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to such Borrower pursuant to this
Agreement; PROVIDED that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof and (iii) no
SPC or Granting Lender shall be entitled to receive any greater amount pursuant
to Section 2.14 or 2.16 than the Granting Lender would have been entitled to
receive had the Granting Lender not otherwise granted such SPC the option to
provide any Loan to any Borrower. The making of any Revolving Credit Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by the Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any
obligation of any kind with respect to this Agreement under any circumstances
whatsoever, including, without limitation, whether or not the related Granting
Lender makes such payment. The foregoing shall not release the Granting Lender
from any
138
obligation hereunder; and the Granting Lender's liability shall be determined as
if no grant to an SPC had been made by it. Each party hereto hereby acknowledges
and agrees that no SPC shall have any voting rights hereunder and that the
voting rights attributable to any extensions of credit made by an SPC shall be
exercised only by the relevant Granting Lender. Each Granting Lender shall serve
as the administrative agent and attorney-in-fact for its SPC and shall on behalf
of its SPC: (i) receive any and all payments made for the benefit of such SPC
and (ii) give and receive all communications and notices and take all actions
hereunder to the extent, if any, such SPC shall have any rights hereunder. To
the extent an SPC shall have the right to receive or give any such notice or
take any such action in writing, it shall be signed by its Granting Lender as
administrative agent and attorney-in-fact for such SPC and need not be signed by
such SPC on its own behalf. The Borrowers, the Guarantors, the Administrative
Agent and the Lenders may rely thereon without any requirement that the SPC sign
or acknowledge the same. In addition, notwithstanding anything to the contrary
contained in this Section 10.14, any SPC may (i) with notice to, but without the
prior written consent of, the Company or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider or a surety, guarantee or credit or liquidity enhancement to such
SPC. In the event that an SPC extends a Loan to any Borrower as contemplated
above, such Borrower shall repay such Loan to the SPC through the Administrative
Agent in full on the maturity date thereof, notwithstanding any provision for
repayments being affected on a basis of re-borrowings. The foregoing shall not
release the Granting Lender from any obligation hereunder, the Granting Lender's
liability to be determined as if no grant to an SPC had been made by it.
Each party hereto agrees that until the 369th day following the
maturity of the last maturing commercial paper note issued or to be issued by an
SPC, it will not institute, or join with others in instituting, against the SPC
any involuntary bankruptcy or insolvency proceeding under any applicable
bankruptcy reorganization, insolvency or similar law, as now or hereafter in
effect.
In the event that an SPC makes a Loan hereunder, the applicable
Borrower shall repay the full amount of such Loan to the SPC through the
Administrative Agent on the maturity date thereof, notwithstanding any provision
contained in this Agreement with respect to netting of amounts payable by such
Borrower against amounts being borrowed by such Borrower on the same day, and
each Borrower shall be jointly and severally obligated to repay such Loan.
139
SECTION 10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. (a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN
DOCUMENTS (EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH
OTHER LOAN DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
(b) CERTAIN WAIVERS. EACH BORROWER AND GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION")
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXX XXXX,
SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT
PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION
IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY
OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES
ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT
DOES NOT HAVE JURISDICTION OVER SUCH BORROWER OR GUARANTOR;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY
RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO THE COMPANY AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND
CONSENTS AND AGREES THAT SUCH SERVICE SHALL
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CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE
SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY
OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW); AND
(iv) WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR
THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 10.16. CONFIDENTIALITY. Except as may be required by Law,
each Lender and each Agent covenants and agrees to use its best efforts not to
permit any data or information relating to the Company or any of its
Subsidiaries or the business of the Company or any of its Subsidiaries (other
than any data or information which is otherwise publicly available or which is
received by any such party in a capacity in which such party is not bound by any
restriction of a nature similar to that imposed by this Section 10.16), which
data or information such Lender or any Agent possesses due to such party's
relation to the transactions contemplated by the Loan Documents, to be out of
such party's possession or the contents thereof to be divulged to any other
Person; PROVIDED, HOWEVER, that such data or information may be disclosed on a
confidential basis to the lawyers or accountants of such Lender or any Agent and
to any Person empowered by Law to examine the records of any such Person and to
any potential participant in, or assignee or transferee of, its rights under any
Loan Documents which potential participant, assignee or transferee shall have,
in each case, agreed with such party to comply with the terms of this Section
10.16.
SECTION 10.17. JUDGEMENT CURRENCY. (a) Each Borrower's and
Guarantor's obligation hereunder and under the other Loan Documents to make
payments in Dollars or any other currency (the "OBLIGATION CURRENCY") shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
141
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the LC Issuer or the respective Lender of
the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the LC Issuer or such Lender under this Agreement or the
other Loan Documents. If for the purpose of obtaining or enforcing judgment
against any Borrower or Guarantor in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "JUDGMENT
CURRENCY") an amount due in the Obligation Currency, the conversion shall be
made, at the rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by a
known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the day immediately preceding the day on which
the judgment is given (such Business Day being hereinafter referred to as the
"JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, each Borrower and Guarantor covenants and agrees, jointly and
severally, to pay, or cause to be paid, such additional amounts, if any (but in
any event not a lesser amount) as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the rate of exchange prevailing
on the date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate or exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this
Section 10.17, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
SECTION 10.18. ENTIRE AGREEMENT; CONSTRUCTION. This Agreement and the
other Loan Documents, taken together, constitute and contain the entire
agreement among the Borrowers, the Lenders and Administrative Agent and
supercede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof. To the extent of any inconsistency between
this Agreement and any other Loan Document, the terms and conditions contained
in this Agreement shall govern.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: XXXXXX XXXXXXX LLC, as a Borrower
and Guarantor
By: Foreign Holdings Ltd.,
its sole member
By /S/ XXXXXX X. XXXXXXXXX By /S/ XXXXXX X. XXXXXX
---------------------------------- -----------------------------------
Title: Vice President Title: Vice President
and Treasurer
XXXXXX XXXXXXX USA
CORPORATION, as a Borrower
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Authorized Person
XXXXXX XXXXXXX POWER GROUP,
INC. (formerly known as XXXXXX
XXXXXXX ENERGY INTERNATIONAL,
INC.), as a Borrower
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Treasurer
XXXXXX XXXXXXX ENERGY
CORPORATION, as a Borrower
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Authorized Person
XXXXXX XXXXXXX INC. (formerly known
as XXXXXX XXXXXXX US HOLDINGS,
INC.), as a Guarantor
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Vice President & Treasurer
XXXXXX XXXXXXX INTERNATIONAL
HOLDINGS, INC., as a Guarantor
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Vice President & Treasurer
FOREIGN HOLDINGS LTD., as a
Guarantor
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Treasurer
XXXXXX XXXXXXX LTD., as a Guarantor
By /S/ XXXXXX X. XXXXXX
-----------------------------------
Title: Vice President & Treasurer
BANK OF AMERICA, N.A., individually
and as Administrative Agent, Collateral
Agent, LC Issuer and Swingline Lender
By /S/ X. X. XXXXX
------------------------------------
Title: Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION
By /S/ XXXXXXXXXXX XXXXXXX
------------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V.
By /S/ XXXXXX X. XXXXXXXX
------------------------------------
Title: Group Senior Vice President
By /S/ XXXXXX X. XXXXXXX
------------------------------------
Title: Group Vice President
TORONTO DOMINION (TEXAS), INC.
By /S/ XXX X. XXXXXX
------------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By /S/ XXXXXXX XXXXX
------------------------------------
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By /S/ XXXXXXX XXXXX
------------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /S/ XXXXX X. XXXXX
------------------------------------
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By /S/ XXXXXX XXXXXXXXX
------------------------------------
Title: Managing Director
SALOMON BROTHERS HOLDING
COMPANY INC.
By /S/ XXXXX XXXXXX
------------------------------------
Title: Assistant Vice President
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By /S/ XXXXXXX XXXXXXX
------------------------------------
Title: Vice President
By /S/ XXXXXXX XXXXXXX
------------------------------------
Title: Director
BNP PARIBAS (successor by merger
to Paribas)
By /S/ XXXXX XXX
------------------------------------
Title: Vice President
By /S/ XXXX XXXXXXXX
------------------------------------
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By /S/ XXXXXX X. XXXXXX
------------------------------------
Title: Vice President
SOCIETE GENERALE, NEW YORK
BRANCH
By /S/ XXXXXX X. XXXXX
------------------------------------
Title: Director
WELLINGTON PARTNERS LIMITED
PARTNERSHIP
By: Citadel Limited Partnership,
its Portfolio Manager
By: GLB Partners, L.P.,
its General Partner
By: Citadel Investment Group,
L.L.C., its General Partner
By /S/ XXXX XXXXX
------------------------------------
Title: Senior Managing Director
LIBERTYVIEW FUND LLC
By /S/ XXXXXX X. XXXXXX
------------------------------------
Title: Authorized Signatory
