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Exhibit 10.08
EXECUTION COPY
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CREDIT AGREEMENT
dated as of June 6, 2000,
among
XXXXXXXXX SEMICONDUCTOR CORPORATION,
XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC.,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger and Administrative Agent
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FLEET NATIONAL BANK
Syndication Agent
ABN AMRO BANK NV
Documentation Agent
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[CS&M Ref No. 5865-084]
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms....................................... 1
SECTION 1.02. Terms Generally..................................... 17
SECTION 1.03. Pro Forma Calculations.............................. 17
ARTICLE II
The Credits
SECTION 2.01. Commitments......................................... 18
SECTION 2.02. Loans............................................... 18
SECTION 2.03. Borrowing Procedure................................. 19
SECTION 2.04. Evidence of Debt; Repayment of Loans................ 20
SECTION 2.05. Fees................................................ 20
SECTION 2.06. Interest on Loans................................... 21
SECTION 2.07. Default Interest.................................... 21
SECTION 2.08. Alternate Rate of Interest.......................... 21
SECTION 2.09. Termination and Reduction of Commitments............ 22
SECTION 2.10. Conversion and Continuation of Borrowings........... 22
SECTION 2.11. Prepayment.......................................... 23
SECTION 2.12. Mandatory Prepayments............................... 23
SECTION 2.13. Reserve Requirements; Change in Circumstances....... 23
SECTION 2.14. Change in Legality.................................. 25
SECTION 2.15. Indemnity........................................... 25
SECTION 2.16. Pro Rata Treatment.................................. 26
SECTION 2.17. Sharing of Setoffs.................................. 26
SECTION 2.18. Payments............................................ 26
SECTION 2.19. Taxes............................................... 27
SECTION 2.20. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.................. 28
SECTION 2.21. Swingline Loans..................................... 28
SECTION 2.22. Letters of Credit................................... 30
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers................................ 33
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SECTION 3.02. Authorization................................................ 33
SECTION 3.03. Enforceability............................................... 33
SECTION 3.04. Governmental Approvals....................................... 33
SECTION 3.05. Financial Statements......................................... 33
SECTION 3.06. No Material Adverse Change................................... 34
SECTION 3.07. Title to Properties; Possession Under Leases................. 34
SECTION 3.08. Subsidiaries................................................. 34
SECTION 3.09. Litigation; Compliance with Laws............................. 34
SECTION 3.10. Agreements................................................... 34
SECTION 3.11. Federal Reserve Regulations.................................. 35
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act... 35
SECTION 3.13. Use of Proceeds.............................................. 35
SECTION 3.14. Tax Returns.................................................. 35
SECTION 3.15. No Material Misstatements.................................... 35
SECTION 3.16. Employee Benefit Plans....................................... 35
SECTION 3.17. Environmental Matters........................................ 36
SECTION 3.18. Insurance.................................................... 36
SECTION 3.19. Pledge Agreement............................................. 36
SECTION 3.20. Labor Matters................................................ 36
SECTION 3.21. Solvency..................................................... 37
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events............................................ 37
SECTION 4.02. First Credit Event........................................... 38
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties......................... 39
SECTION 5.02. Insurance.................................................... 39
SECTION 5.03. Obligations and Taxes........................................ 39
SECTION 5.04. Financial Statements, Reports, etc. ......................... 40
SECTION 5.05. Litigation and Other Notices................................. 41
SECTION 5.06. Employee Benefits............................................ 41
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.... 41
SECTION 5.08. Use of Proceeds.............................................. 41
SECTION 5.09. Compliance with Environmental Laws........................... 41
SECTION 5.10. Preparation of Environmental Reports......................... 42
SECTION 5.11. Further Assurances........................................... 42
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness................................................. 42
SECTION 6.02. Liens........................................................ 43
SECTION 6.03. Sale and Lease-Back Transactions............................. 45
SECTION 6.04. Investments, Loans and Advances.............................. 45
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.... 46
SECTION 6.06. Dividends.................................................... 47
SECTION 6.07. Transactions with Affiliates................................. 48
SECTION 6.08. Consolidated Interest Coverage Ratio......................... 49
SECTION 6.09. Consolidated Fixed Charge Coverage Ratio..................... 49
SECTION 6.10. Maximum Leverage Ratio....................................... 49
SECTION 6.11. Limitation on Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-laws and Certain Other
Agreements, etc.............................................. 49
SECTION 6.12. Limitation on Certain Restrictions on Subsidiaries........... 50
SECTION 6.13. Limitation on Issuance of Capital Stock...................... 50
SECTION 6.14. Limitation on Creation of Subsidiaries....................... 51
SECTION 6.15. Business..................................................... 51
SECTION 6.16. Designated Senior Indebtedness............................... 51
SECTION 6.17. Fiscal Year.................................................. 51
ARTICLE VII
Events of Default 51
ARTICLE VIII
The Administrative Agent and the Collateral Agent 53
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................... 55
SECTION 9.02. Survival of Agreement......................................... 55
SECTION 9.03. Binding Effect................................................ 56
SECTION 9.04. Successors and Assigns........................................ 56
SECTION 9.05. Expenses; Indemnity........................................... 59
SECTION 9.06. Right of Setoff............................................... 59
SECTION 9.07. Applicable Law................................................ 59
SECTION 9.08. Waivers; Amendment............................................ 60
SECTION 9.09. Interest Rate Limitation...................................... 60
SECTION 9.10. Entire Agreement.............................................. 61
SECTION 9.11. WAIVER OF JURY TRIAL.......................................... 61
SECTION 9.12. Severability.................................................. 61
SECTION 9.13. Counterparts.................................................. 61
SECTION 9.14. Headings...................................................... 61
SECTION 9.15. Jurisdiction; Consent to Service of Process................... 61
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SECTION 9.16. Judgment Currency............................................. 62
SECTION 9.17. Confidentiality............................................... 62
SECTION 9.18. Release of Collateral......................................... 63
Schedule 1.01(a) Existing Letters of Credit
Schedule 1.01(b) Subsidiary Guarantors
Schedule 2.01 Lenders and Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 4.02 Post Closing Pledge Obligations
Schedule 6.01 Outstanding Indebtedness on Closing Date
Schedule 6.02 Liens Existing on Closing Date
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E Form of Parent Guarantee Agreement
Exhibit F Form of Pledge Agreement
Exhibit G Form of Subsidiary Guarantee Agreement
Exhibit H-1 Form of Opinion of General Counsel
Exhibit H-2 Form of Opinion of Counsel of Dechert, Price & Xxxxxx
Exhibit I Subordination Provisions
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CREDIT AGREEMENT dated as of June 6, 2000, among XXXXXXXXX
SEMICONDUCTOR CORPORATION, a Delaware corporation (the
"Borrower"), XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC., a
Delaware corporation ("Holdings"), the Lenders (as defined
in Article I), CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch, as swingline lender (in such capacity, the
"Swingline Lender"), as an Issuing Bank (as defined in
Article I), as administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders, FLEET
NATIONAL BANK, as an Issuing Bank and as syndication agent
(in such capacity, the "Syndication Agent"), and ABN AMRO
BANK NV, as documentation agent (in such capacity, the
"Documentation Agent").
The Borrower has requested the Lenders to extend credit in the form of
Revolving Loans (such term and each other capitalized term used but not defined
in this preamble having the meaning assigned to it in Article I) at any time and
from time to time prior to the Revolving Credit Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of $300,000,000. The
Borrower has requested the Swingline Lender to extend credit, at any time and
from time to time prior to the Revolving Credit Maturity Date, in the form of
Swingline Loans. The Borrower has requested the Issuing Bank to issue letters of
credit, in an aggregate face amount at any time outstanding not in excess of
$35,000,000, to support payment obligations incurred in the ordinary course of
business by the Borrower and its Subsidiaries. The proceeds of the Loans are to
be used solely (a) to refinance all amounts outstanding under the Existing
Credit Agreement, (b) to pay related fees and expenses and (c) for general
corporate purposes.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Banks are willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
"Acquired Entity" shall have the meaning assigned to such term in the
definition of the term "Permitted Acquisition".
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"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A, or such other form as may be supplied from time to
time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns more
than 5% of any class of capital stock of the person specified or that is an
officer or director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Applicable Percentage" shall mean, for any day with respect to any
Eurodollar Loan, ABR Loan or the Commitment Fee, as the case may be, the
applicable percentage set forth below under the caption "Eurodollar Spread",
"ABR Spread", or "Commitment Fee Rate" as the case may be, based upon the
Leverage Ratio as of the relevant date of determination:
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Leverage Eurodollar ABR Commitment
Ratio Spread Spread Fee Rate
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Category 1 0.875% 0.00% 0.25%
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Leverage Eurodollar ABR Commitment
Ratio Spread Spread Fee Rate
----- ------ ------ --------
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------------------------------------ ------------------------ ----------------------- ---------------------
Category 2 1.00% 0.00% 0.30%
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Equal to or greater than 1.50 to
1.00, but less than 2.00 to 1.00
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Category 3 1.25% 0.25% 0.375%
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Equal to or greater than 2.00 to
1.00, but less than 2.50 to 1.00
------------------------------------ ------------------------ ----------------------- ---------------------
Category 4 1.50% 0.50% 0.375%
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Equal to or greater than 2.50 to
1.00, but less than 2.75 to 1.00
------------------------------------ ------------------------ ----------------------- ---------------------
Category 5 1.75% 0.75% 0.50%
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Equal to or greater than 2.75 to
1.00, but less than 3.00 to 1.00
------------------------------------ ------------------------ ----------------------- ---------------------
Category 6 2.00% 1.00% 0.50%
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Equal to or greater than 3.00 to
1.00, but less than 3.25 to 1.00
------------------------------------ ------------------------ ----------------------- ---------------------
Category 7 2.25% 1.25% 0.50%
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Equal to or greater than 3.25 to
1.00
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Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative Agent
of the financial statements and certificates required by Section 5.04(a) or (b)
and Section 5.04(c), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) and (b) and Section
5.04(c), respectively, or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Category 7 for purposes of determining the Applicable Percentage.
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"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B, or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made, converted or
continued on a single date and, in the case of a Eurodollar Borrowing, as to
which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C, or such
other form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Business Transfer Agreement" shall mean the Business Transfer Agreement
dated December 20, 1998, between Samsung Electronics Co., Ltd. and the Borrower,
as amended, supplemented or otherwise modified from time to time in accordance
with the provisions hereof and thereof.
"Capital Expenditures" shall mean, with respect to any person, all
expenditures by such person that should be capitalized in accordance with GAAP,
including all such expenditures with respect to fixed or capital assets
(including expenditures for maintenance and repairs that should be capitalized
in accordance with GAAP) and the amount of Capital Lease Obligations incurred by
such person; provided, however, that none of (a) expenditures made with casualty
or condemnation proceeds, (b) expenditures made by the Borrower or any of its
Subsidiaries to acquire in a Permitted Acquisition the business, property or
assets of any person, or the capital stock of any person that, as a result of
such acquisition, becomes a Subsidiary of the Borrower, or (c) expenditures made
with Follow-On Offering Proceeds or the proceeds of the issuance of Qualified
Capital Stock shall constitute Capital Expenditures for purposes of this
Agreement.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" shall mean, as to any person, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one
year from the date of acquisition by such person, (b) time deposits and
certificates of deposit of a Lender or any commercial bank having, or which is
the principal banking
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subsidiary of a bank holding company organized under the laws of the United
States, any State thereof or the District of Columbia, having capital, surplus
and undivided profits aggregating in excess of $500,000,000, with maturities of
not more than one year from the date of acquisition by such person, (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with any bank
meeting the qualifications specified in clause (b) above, (d) commercial paper
issued by a Lender or any person incorporated in the United States rated at
least A-2 or the equivalent thereof by Standard & Poor's Rating Service or at
least P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc., and in
each case maturing not more than one year after the date of acquisition by such
person, (e) investments in money market funds substantially all of whose assets
are comprised of securities of the types described in clauses (a) through (d)
above and (f) demand deposit accounts maintained in the ordinary course of
business.
A "Change in Control" shall be deemed to have occurred if (a) Holdings
shall at any time cease to own 100% of the capital stock of the Borrower, (b) at
any time a "Change of Control" under and as defined in either Senior
Subordinated Note Indenture, or in any documentation relating to any
Indebtedness refinancing all or any part thereof shall have occurred, (c) any
"Person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), excluding the CVC Permitted Holders and the Management Investors,
is or shall become the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than 35% of the
outstanding Voting Stock, or (d) at any time the Board of Directors of Holdings
shall cease to consist of a majority of Continuing Directors.
"Closing Date" shall mean June 6, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in the Pledge
Agreement.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated May 2000.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net Income
for such period, before interest expense and provision for taxes based on income
and without giving effect to any extraordinary gains or losses or gains or
losses from sales of assets other than inventory sold in the ordinary course of
business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation, in each case that were deducted in arriving at Consolidated EBIT
for such period.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Fixed Charges for such period.
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"Consolidated Fixed Charges" for any period shall mean the sum, without
duplication, of (a) Consolidated Interest Expense for such period, (b) the
amount of all Capital Expenditures made by Holdings and its Subsidiaries during
such period, (c) all cash payments in respect of income taxes made during such
period (net of any cash refund in respect of income taxes actually received
during such period) and (d) the scheduled principal amount of all amortization
payments on all Indebtedness (including the principal component of all Capital
Lease Obligations) of Holdings and its Subsidiaries for such period (as
determined on the first day of the respective period).
"Consolidated Indebtedness" shall mean, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness (but including in
any event the then outstanding principal amount of all Loans, all Senior
Subordinated Notes, all Capital Lease Obligations and all L/C Exposure) of
Holdings and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP; provided that Indebtedness outstanding pursuant to trade
payables and accrued expenses incurred in the ordinary course of business shall
be excluded in determining Consolidated Indebtedness.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of Holdings and its consolidated Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, the portion of Capital Lease Obligations of
Holdings and its consolidated Subsidiaries representing the interest factor for
such period, but excluding (a) the amortization of any deferred financing costs
incurred in connection with this Agreement or the issuance of the New Senior
Subordinated Notes and the Existing Senior Subordinated Notes and (b) any
interest expense in respect of (i) the Seller Note and (ii) the Holdings
Subordinated Note.
"Consolidated Net Income" shall mean, for any period, the consolidated net
after tax income of Holdings and its consolidated Subsidiaries determined in
accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean at any time, the aggregate
amount of assets (less applicable accumulated depreciation, depletion and
amortization and other reserves and other properly deductible items) of Holdings
and its subsidiaries, minus (a) all current liabilities of Holdings and its
Subsidiaries (excluding (i) liabilities that by their terms are extendable or
renewable at the option of the obligor to a date more than 12 months after the
date of determination and (ii) current maturities of long-term debt) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other intangible assets of Holdings and its Subsidiaries, all as set
forth in the most recent consolidated balance sheet of Holdings and its
subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation" shall mean, as to any person, any obligation of
such person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or
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indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business and any products
warranties for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such person is required to perform thereunder) as determined by such
person in good faith.
"Continuing Directors" shall mean (a) the directors of Holdings on the
Closing Date and (b) each other director, if (i) such director's nomination for
election to the Board of Directors of Holdings is recommended by a majority of
then Continuing Directors or (ii) such director became a member of the Board of
Directors pursuant to, and in accordance with, Article V of the Securities
Purchase and Holders Agreement prior to the termination of the voting agreements
pursuant to Section 5.7 of the Securities Purchase and Holders Agreement.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CVC" shall mean Citicorp Venture Capital Ltd.
"CVC Permitted Holders" shall mean (a) CVC, (b) any officer, employee or
director of CVC or any trust, partnership or other entity established solely for
the benefit of such officers, employees or directors and (c) Sterling (or any
successor) so long as CVC, employees, officers and directors of CVC and
corporations, partnerships and other entities at least a majority of the equity
in which is held in the aggregate by CVC and its employees, officers and
directors, hold no less than a majority of the aggregate economic interests in
Sterling or such successor.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Disqualified Stock" shall mean any capital stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the first anniversary of the Revolving Credit Maturity Date, or (b) is
convertible into or exchangeable
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(unless at the sole option of the issuer thereof) for (i) debt securities or
(ii) any capital stock referred to in (a) above, in each case at any time prior
to the first anniversary of the Revolving Credit Maturity Date.
"Dividend" with respect to any person shall mean that such person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such person) or cash to its stockholders as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock outstanding on or
after the Closing Date (or any options or warrants issued by such person with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock of such person outstanding on or after the Closing Date (or any options or
warrants issued by such person with respect to its capital stock). Without
limiting the foregoing, "Dividends" with respect to any person shall also
include all payments made or required to be made by such person with respect to
any stock appreciation rights, plans, equity incentive or achievement plans or
any similar plans or setting aside of any funds for the foregoing purposes.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof, the
District of Columbia, the United States Virgin Islands or Puerto Rico.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. xx.xx. 9601 et seq. (collectively "CERCLA"), the Solid Waste
Disposal Act, as amended by the Resource
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Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. xx.xx. 6901 et seq., the Federal Water Pollution Control Act,
as amended by the Clean Water Act of 1977, 33 U.S.C. xx.xx. 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. xx.xx. 7401 et seq., the Toxic
Substances Control Act of 1976, 15 U.S.C. xx.xx. 2601 et seq., the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. xx.xx. 651 et seq., the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. xx.xx.
11001 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. xx.xx.
300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C. xx.xx.
5101 et seq., and any similar or implementing state, local or foreign law, and
all amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by the Borrower or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; and (h)
any Foreign Benefit Event.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
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"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.20(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.19(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.19(a).
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
April 14, 1999, as amended, among Holdings, the Borrower, various lenders, CSFB,
as Lead Arranger and Administrative Agent, Salomon Brothers Holding Company
Inc., as Syndication Agent, and ABN AMRO Bank and Fleet National Bank, as
Documentation Agents.
"Existing L/C" shall mean each letter of credit issued for the account of
the Borrower and outstanding on the Closing Date and listed on Schedule 1.01(a).
"Existing Senior Subordinated Note Documents" shall mean the Existing
Senior Subordinated Notes, the Existing Senior Subordinated Note Indenture and
all other documents executed and delivered with respect to the Existing Senior
Subordinated Notes or the Existing Senior Subordinated Note Indenture.
"Existing Senior Subordinated Note Indenture" shall mean the indenture
dated as of March 11, 1997, between the Borrower and the Senior Subordinated
Note Indenture Trustee, as in effect on the Closing Date and as thereafter
amended from time to time in accordance with the requirements thereof and of
this Agreement.
"Existing Senior Subordinated Notes" shall mean the Borrower's 10-1/8%
Senior Subordinated Notes due 2007 issued pursuant to the Existing Senior
Subordinated Note Indenture and any notes issued by the Borrower in exchange
for, and as contemplated by, the Existing Senior Subordinated Notes with
substantially identical terms as the Existing Senior Subordinated Notes.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees, the
L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer,
principal accounting officer, Treasurer or Controller of such person.
"Follow-On Offering Proceeds" shall mean the net cash proceeds of Holdings'
follow-on public equity offering of Class A common stock offered pursuant to a
Registration Statement on Form S-1 (File No. 333-92941).
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"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments under any applicable law on or before the
due date for such contributions or payments, (c) the receipt of a notice by a
Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan, (d) the incurrence of any liability in excess of $5,000,000 (or the
equivalent thereof in another currency) by Holdings or any of its Subsidiaries
under applicable law on account of the complete or partial termination of such
Foreign Pension Plan or the complete or partial withdrawal of any participating
employer therein, or (e) the occurrence of any transaction that is prohibited
under any applicable law and could reasonably be expected to result in the
incurrence of any liability by Holdings or any of its Subsidiaries, or the
imposition on Holdings or any of its Subsidiaries of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law, in each case
in excess of $5,000,000 (or the equivalent thereof in another currency).
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pension Plan" shall mean any plan, fund (including any
superannuation fund) or other similar program established or maintained outside
the United States by Holdings or any one or more of its Subsidiaries primarily
for the benefit of employees of Holdings or such Subsidiaries residing outside
the United States, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Granting Lender" has the meaning specified in Section 9.04(i).
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including
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petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law.
"Holdings Subordinated Note" shall mean the 12.5% Subordinated Note due
2008 of Holdings, that was prepaid prior to the Closing Date.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Contingent Obligations of such person, (h) all Capital Lease Obligations of
such person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Interest Payment Date" shall mean, (a) with respect to any ABR Loan, the
last Business Day of March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to Borrowing.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be
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the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect Holdings or any of its
Subsidiaries against fluctuations in interest rates, and not entered into for
speculation.
"Investment Grade Ratings" shall mean that the credit rating of the
Borrower's senior unsecured, non-credit-enhanced long-term debt (the "Index
Debt") is (a) BBB! or higher, as determined by S&P, or (b) Baa3 or higher, as
determined by Moody's. The Borrower shall be deemed to have obtained Investment
Grade Ratings if it shall deliver to the Administrative Agent letters from S&P
and Xxxxx'x to the effect that the Index Debt would be so rated assuming that
the Secured Parties had released their liens in the Collateral.
"Issuing Bank" shall mean, as the context may require, (a) Credit Suisse
First Boston, with respect to Letters of Credit issued by it, (b) any other
Lender that may become an Issuing Bank pursuant to Section 2.22(i) or (k), with
respect to Letters of Credit issued by such Lender, or (c) collectively, all the
foregoing.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance. Unless the
context clearly indicates otherwise, the term "Lenders" shall include the
Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22 and the Existing L/C.
"Leverage Ratio" shall mean, at any date of determination, the ratio of
Consolidated Indebtedness on such date to Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower most recently ended as of such
date.
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"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set forth by the Bloomberg Information Service or any successor thereto or
any other service selected by the Administrative Agent which has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the average
of the rates per annum at which deposits in dollars are offered for such
relevant Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Pledge Agreement and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans and the Swingline Loans.
"Management Investors" shall mean Xxxx X. Xxxx, Xxxxxx X. Xxxxxx and
certain other key employees of the Borrower who purchased capital stock of
Holdings pursuant to the Securities Purchase and Holders Agreement.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, results of operations, prospects or condition, financial or otherwise,
of Holdings and its Subsidiaries, taken as a whole, (b) material impairment of
the ability of the Loan Parties to perform any of their obligations under the
Loan Documents or (c) material impairment of the rights of or benefits available
to the Lenders or the Collateral Agent under any Loan Document.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"New Senior Subordinated Note Documents" shall mean the New Senior
Subordinated Notes, the New Senior Subordinated Note Indenture and all other
documents executed and
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delivered with respect to the New Senior Subordinated Notes or the New Senior
Subordinated Note Indenture.
"New Senior Subordinated Note Indenture" shall mean the indenture dated as
of April 7, 1999, between the Borrower and the Senior Subordinated Note
Indenture Trustee, as in effect on the Closing Date and as thereafter amended
from time to time in accordance with the requirements thereof and of this
Agreement.
"New Senior Subordinated Notes" shall mean the Borrower's 10-3/8% Senior
Subordinated Notes Due 2007 issued pursuant to the New Senior Subordinated Note
Indenture and any notes issued by the Borrower in exchange for, and as
contemplated by, the New Senior Subordinated Notes with substantially identical
terms as the New Senior Subordinated Notes.
"NSC" shall mean National Semiconductor Corporation, a Delaware
corporation.
"NSC Asset Purchase Agreement" shall mean the Asset Purchase Agreement
dated as of March 11, 1997, between the Borrower and NSC.
"Obligation Currency" shall have the meaning assigned to such term in
Section 9.16.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee Agreements and the Pledge Agreement.
"Operating Agreements" shall mean the Intellectual Property License
Agreement, Transitional Services Agreement, Assembly and Test Services
Agreements, Trademark License Agreement, Foundry Sale Agreement, Product Supply
Agreement, Photo Mask Supply Agreement and EPI Services Agreement, all of which
as contemplated by the Business Transfer Agreement.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit E, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Acquisition" shall mean the acquisition by the Borrower or any
Wholly Owned Subsidiary of all or substantially all the assets of a person or
line of business of such person, or 100% of the equity interests of a person
(referred to herein as the "Acquired Entity");
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PROVIDED that (a) the Acquired Entity shall be a going concern and shall be in a
similar line of business as that of the Borrower and its Subsidiaries as
conducted during the current and most recent calendar year; (b) at the time of
such transaction both before and after giving effect thereto and any financing
therefor, (i) no Event of Default or Default shall have occurred and be
continuing or shall exist; and (ii) Holdings and the Borrower would be in Pro
Forma Compliance and (c) neither Holdings nor the Borrower shall assume any
Indebtedness in connection with such acquisition, except as permitted by Section
6.01.
"Permitted Junior Capital" shall mean (a) Qualified Capital Stock of
Holdings or (b) Indebtedness of Holdings or the Borrower that (i) matures after
the first anniversary of the Revolving Credit Maturity Date, (ii) requires no
payment of principal (whether by way of scheduled amortization, mandatory
redemption, mandatory prepayment or otherwise) prior to its maturity, (iii) does
not require the Borrower or Holdings to maintain any specified financial
condition (other than as a condition to the taking of certain actions), (iv)
contains subordination provisions that are no less favorable to the Lenders than
the subordination provisions contained in the New Senior Subordinated Note
Documents and (v) contains non-economic covenants, events of default, remedies
and other provisions which, when taken as a whole, are no less favorable to the
Borrower and Holdings than those contained in the New Senior Subordinated Note
Documents.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in the
form of Exhibit F, between the Borrower, Holdings, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Pro Forma Basis" shall mean, with respect to compliance with any test or
covenant hereunder, compliance with such covenant or test after giving effect to
any proposed payment or Permitted Acquisition (including pro forma adjustments
arising out of events which are directly attributable to the proposed payment or
Permitted Acquisition, are factually supportable and are expected to have a
continuing impact, in each case determined on a basis consistent with Article 11
of Regulation S-X of the Securities Act and as interpreted by the Staff of the
Securities and Exchange Commission which (to the extent consistent therewith)
may include cost savings resulting from head count reductions, closure of
facilities and similar restructuring charges or integration activities or other
adjustments certified by a Financial Officer of the Borrower, together with such
other pro forma adjustments certified by a Financial Officer of the Borrower as
being reasonable and having been made in good faith as may be reasonably
acceptable to the Administrative Agent) using, for purposes of determining such
compliance, the historical financial statements of all entities or assets so
acquired or to be acquired and the consolidated financial statements of Holdings
and its Subsidiaries which shall be reformulated as if such
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payment or Permitted Acquisition, and any other similar payments or Permitted
Acquisitions that have been consummated during the period, and any Indebtedness
or other liabilities incurred in connection with any such payments or Permitted
Acquisitions had been consummated at the beginning of such period and assuming
that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans during such period.
"Pro Forma Compliance" shall mean, at any date of determination, that
Holdings shall be in pro forma compliance with the covenants set forth in
Sections 6.08, 6.09 and 6.10 as of the last day of the most recent fiscal
quarter-end (computed on the basis of (a) balance sheet amounts as of the most
recently completed fiscal quarter, and (b) income statement amounts for the most
recently completed period of four consecutive fiscal quarters, in each case, for
which financial statements shall have been delivered to the Administrative Agent
and calculated on a Pro Forma Basis in respect of the event giving rise to such
determination).
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Qualified Capital Stock" of any person shall mean any capital stock of
such person that is not Disqualified Stock.
"Recapitalization Agreement" shall mean the Agreement and Plan of
Recapitalization dated as of January 24, 1997, between Sterling and NSC, as in
effect on the Closing Date and as the same may be amended, modified or
supplemented from time to time pursuant to the terms hereof and thereof.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Release Date" shall have the meaning given such term in Section 9.18.
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"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority to: (i) clean up, remove, treat, xxxxx or in any other
way address any Hazardous Material in the environment; (ii) prevent the Release
or threat of Release, or minimize the further Release of any Hazardous Material
so it does not migrate or endanger or threaten to endanger public health,
welfare or the environment; or (iii) perform studies and investigations in
connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Revolving Credit
Commitments (or, if the Revolving Credit Commitments have terminated, Loans)
representing at least a majority of the sum of all Revolving Credit Commitments
(or, if the Revolving Credit Commitments have terminated, Loans) at such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender, plus the aggregate amount at such time of such Lender's
L/C Exposure, plus the aggregate amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean June 6, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Pledge Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Purchase and Holders Agreement" shall mean the Securities
Purchase and Holders Agreement dated as of March 11, 1997, among Holdings,
Sterling, NSC and the Management Investors.
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"Seller Note" shall mean the promissory note originally issued by Holdings
to NSC pursuant to the Recapitalization Agreement, which note was repaid in full
prior to the Closing Date.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated
Notes, the Senior Subordinated Note Indentures and all other documents executed
and delivered with respect to the Senior Subordinated Notes or the Senior
Subordinated Note Indentures.
"Senior Subordinated Note Indentures" shall mean the Existing Senior
Subordinated Note Indenture and the New Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture Trustee" shall mean United States Trust
Company of New York.
"Senior Subordinated Notes" shall mean the Existing Senior Subordinated
Notes and the New Senior Subordinated Notes.
"SPC" has the meaning specified in Section 9.04(i).
"S&P" shall mean Standard and Poor's Ratings Service or any successor
thereto.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sterling" shall mean Sterling Holding Company, LLC, a Delaware limited
liability company.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of Holdings or the Borrower.
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"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit G, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(b), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to
make loans pursuant to Section 2.21, as the same may be reduced from time to
time pursuant to Section 2.09 or Section 2.21.
"Swingline Exposure" shall mean at any time the aggregate principal amount
at such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant
to Section 2.21.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tools and Molding Expenditures" shall mean all expenditures, other than
Capital Expenditures, related to assembly equipment components necessary for the
operation of the business of the Borrower and its Subsidiaries which, under
GAAP, are or will be required to be accounted for as other assets with useful
lives of 1-2 years.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Voting Stock" shall mean any class or classes of capital stock of Holdings
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors of
Holdings.
"Wholly Owned Subsidiary" shall mean, as to any person, (a) any corporation
100% of whose capital stock (other than directors's qualifying shares) is at the
time owned by such person and/or one or more Wholly Owned Subsidiaries of such
person and (b) any partnership, association, joint venture, limited liability
company or other entity in which such person and/or one or more Wholly Owned
Subsidiaries of such person has a 100% equity interest at such time.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
SECTION 1.03. Pro Forma Calculations. With respect to any period during
which any Permitted Acquisition occurs as permitted pursuant to the terms
hereof, for purposes of determining compliance or Pro Forma Compliance with the
financial covenants set forth in Sections 6.08, 6.09 and 6.10, Consolidated
EBITDA, Consolidated Interest Expense and Consolidated Fixed Charges shall be
calculated with respect to such periods and such Permitted Acquisition on a Pro
Forma Basis.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Loans in dollars to the Borrower,
at any time and from time to time on or after the date hereof, and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitment of such Lender in accordance with the terms hereof,
in an aggregate principal amount at any time outstanding that will not result in
such Lender's Revolving Credit Exposure exceeding such Lender's Revolving Credit
Commitment. Within the limits set forth in the preceding sentence and subject to
the terms, conditions and limitations set forth herein, the Borrower may borrow,
pay or prepay and reborrow Revolving Loans.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan
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required to be made by such other Lender). Except for Loans deemed made pursuant
to Section 2.02(f), the Loans comprising any Borrowing shall be in an aggregate
principal amount that is (i) an integral multiple of $1,000,000 and not less
than $5,000,000 or (ii) equal to the remaining available balance of the
applicable Commitments.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than four Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 12:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account as directed by the Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
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(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent on such date (or, if such Revolving
Credit Lender shall have received such notice later than 12:00 (noon), New York
City time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Revolving Loan of such Lender and such payment
shall be deemed to have reduced the L/C Exposure), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the
Revolving Credit Lenders. The Administrative Agent will promptly pay to the
Issuing Bank any amounts received by it from the Borrower pursuant to Section
2.22(e) prior to the time that any Revolving Credit Lender makes any payment
pursuant to this paragraph (f); any such amounts received by the Administrative
Agent thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the Issuing
Bank, as their interests may appear. If any Revolving Credit Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to Revolving Loans pursuant to Section
2.06(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan or deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Borrowing Request (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the day of a
proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed
by or on behalf of the Borrower and shall specify the following information: (i)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or an
ABR Borrowing (provided that until the Administrative Agent shall have notified
the Borrower that the primary syndication of the Commitments has been completed
(which notice shall be given as promptly as practicable and, in any event,
within 14 days after the Closing Date), the Borrower shall not be permitted to
request a Eurodollar Borrowing); (ii) the date of such Borrowing (which shall be
a Business Day), (iii) the number and location of the account to which funds are
to be disbursed (which shall be an account that complies with the requirements
of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an
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Interest Period of one month's duration. The Administrative Agent shall promptly
advise the applicable Lenders of any notice given pursuant to this Section 2.03
(and the contents thereof), and of each Lender's portion of the requested
Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent (i) for the account
of the Swingline Lender, the then unpaid principal amount of each Swingline
Loan, on each Interest Payment Date therefor or, if earlier, on the Revolving
Credit Maturity Date and (ii) for the account of each Revolving Credit Lender,
the then unpaid principal amount of each Revolving Loan of such Lender on the
Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that the Loans made by it hereunder be evidenced
by a promissory note. In such event, the Borrower shall execute and deliver to
such Lender a promissory note payable to such Lender and its registered assigns
and in a form and substance reasonably acceptable to the Administrative Agent
and the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on each date on which the Revolving Credit Commitment
of such Lender shall expire or be terminated as provided herein, a commitment
fee (a "Commitment Fee") equal to the Applicable Percentage per annum on the
average daily unused amount of the Revolving Credit Commitment of such Lender
during the preceding quarter (or other period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which the
Revolving Credit Commitment of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the date hereof and shall
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cease to accrue on the date on which the Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein. For purposes of
calculating Commitment Fees only, no portion of the Revolving Credit Commitments
shall be deemed utilized under Section 2.16 as a result of outstanding Swingline
Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees separately agreed to by the Borrower and the
Administrative Agent (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank with
respect to each Letter of Credit, on the last Business Day of March, June,
September and December of each year and on the L/C Maturity Date, a fronting fee
equal to 0.25% per annum on the aggregate outstanding face amount of such Letter
of Credit (the "Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
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SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the rate that would be applicable to an
ABR Revolving Loan plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Revolving
Credit Commitments, the Swingline Commitment and the L/C Commitment shall
automatically terminate on the Revolving Credit Maturity Date. Notwithstanding
the foregoing, all the Commitments shall automatically terminate at 5:00 p.m.,
New York City time, on June 30, 2000, if the initial Credit Event shall not have
occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Revolving Credit Commitments; provided, however, that (i) each partial
reduction of the Revolving Credit Commitments shall be in an integral multiple
of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Revolving
Credit Commitment shall not be reduced to an amount that is less than the
Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Revolving Credit Commitments hereunder shall be
made ratably among the Lenders in accordance with their respective applicable
Revolving Credit Commitments. The Borrower shall pay to the Administrative Agent
for the account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Commitments so terminated or
reduced accrued to but excluding the date of such termination or reduction.
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SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 11:00 am., New York City time, on the day of
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not
later than 10:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the
end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing;
(vii) upon notice to the Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the
continuance of a Default or Event of Default, no outstanding Loan may be
converted into, or continued as, a Eurodollar Loan; and
(viii) until the Administrative Agent shall have notified the Borrower
that the primary syndication of the Commitments has been completed (which
notice shall be given by the Administrative Agent as promptly as
practicable and, in any event, within 14 days after the Closing Date), no
ABR Borrowing may be converted into a Eurodollar Borrowing.
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Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into an ABR Borrowing.
SECTION 2.11. Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) in the case of Eurodollar
Loans, or written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) on or prior to the date of prepayment in the case of
ABR Loans, to the Administrative Agent before 11:00 a.m., New York City time;
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000.
(b) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.11 shall be subject to Section 2.15 but otherwise without premium or penalty.
All prepayments under this Section 2.11 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.12. Mandatory Prepayments. In the event of any termination of all
the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit Borrowings and
all outstanding Swingline Loans and replace all outstanding Letters of Credit
and/or deposit an amount equal to the L/C Exposure in cash in a cash collateral
account established with the Collateral Agent for the benefit of the Secured
Parties. In the event of any partial reduction of the Revolving Credit
Commitments, then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Revolving Credit Lenders
of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii)
if the Aggregate Revolving Credit Exposure would exceed the Total Revolving
Credit Commitment after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, repay or prepay
Revolving Credit Borrowings or Swingline Loans (or a combination thereof) and/or
replace or cash collateralize outstanding Letters of Credit in an amount
sufficient to eliminate such excess.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in
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applicable law or regulation or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or the
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any Eurodollar Loan or
increase the cost to any Lender of issuing or maintaining any Letter of Credit
or purchasing or maintaining a participation therein or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender
or the Issuing Bank to be material, then the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, upon demand such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Lender or the Issuing Bank to be material, then from time to time the Borrower
shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank, setting forth in
reasonable detail the reason therefor, the amount or amounts necessary to
compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above, and the calculation
thereof, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank the
amount shown as due on any such certificate delivered by it within 10 days after
its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to
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demand such compensation; provided that the Borrower shall not be under any
obligation to compensate any Lender or the Issuing Bank under paragraph (a) or
(b) above with respect to increased costs or reductions with respect to any
period prior to the date that is six months prior to such request if such Lender
or the Issuing Bank knew or could reasonably have been expected to be aware of
the circumstances giving rise to such increased costs or reductions and of the
fact that such circumstances would in fact result in a claim for increased
compensation by reason of such increased costs or reductions; provided further
that the foregoing limitation shall not apply to any increased costs or
reductions arising out of the retroactive application of any law, regulation,
rule, guideline or directive as aforesaid within such six-month period. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into Eurodollar Loans),
whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed
a request for an ABR Revolving Loan (or a request to continue an ABR Loan
as such for an additional Interest Period or to convert a Eurodollar Loan
into an ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a
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default by such Lender in the performance of its obligations hereunder, which
results in (i) such Lender receiving or being deemed to receive any amount on
account of the principal of any Eurodollar Loan prior to the end of the Interest
Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR
Loan, or the conversion of the Interest Period with respect to any Eurodollar
Loan, in each case other than on the last day of the Interest Period in effect
therefor, or (iii) any Eurodollar Loan to be made by such Lender (including any
Eurodollar Loan to be made pursuant to a conversion or continuation under
Section 2.10) not being made after notice of such Loan shall have been given by
the Borrower hereunder (any of the events referred to in this clause (a) being
called a "Breakage Event") or (b) any default in the making of any payment or
prepayment required to be made hereunder. In the case of any Breakage Event,
such loss shall include an amount equal to the excess, as reasonably determined
by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that
is the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that would
have been in effect) for such Loan over (ii) the amount of interest likely to be
realized by such Lender in redeploying the funds released or not utilized by
reason of such Breakage Event for such period. A certificate of any Lender
setting forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.15 shall be delivered to the Borrower and shall be
conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as provided below in this Section
2.16 with respect to Swingline Loans and as required under Section 2.14, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Revolving Credit Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
Revolving Credit Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Revolving Loans). For purposes of determining the available
Revolving Credit Commitments of the Lenders at any time, each outstanding
Swingline Loan shall be deemed to have utilized the Revolving Credit Commitments
of the Lenders (including those Lenders which shall not have made Swingline
Loans) pro rata in accordance with such respective Revolving Credit Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Revolving Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Revolving Loans
and participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Revolving Loans and L/C Exposure, as the case may be, of such other Lender, so
that the aggregate unpaid principal amount of the Revolving Loans and L/C
Exposure and participations in Revolving
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Loans and L/C Exposure held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Revolving Loans and L/C Exposure
then outstanding as the principal amount of its Revolving Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Revolving Loans and L/C Exposure outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.16 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower and Holdings expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in a Revolving Loan or L/C Disbursement deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower and
Holdings to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any L/C Disbursement or any Fees or
other amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in immediately available
dollars, without setoff, defense or counterclaim. Each such payment (other than
(i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and
(ii) principal of and interest on Swingline Loans, which shall be paid directly
to the Swingline Lender except as otherwise provided in Section 2.21(e)) shall
be made to the Administrative Agent at its offices at Eleven Madison Avenue, New
York, New York.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower or any Loan
Party shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or such Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower or such Loan Party shall make such
deductions and (iii) the Borrower or such Loan Party shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any
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payment by or on account of any obligation of the Borrower or any Loan Party
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender, or by the Administrative Agent on its behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower or any other Loan Party to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
(f) If the Administrative Agent or any Lender receives a refund in respect
of Indemnified Taxes or Other Taxes paid by the Borrower, which in the good
faith judgment of the Administrative Agent or such Lender is allocable to such
payment, it shall promptly pay such refund, together with any other amounts paid
by the Borrower in connection with such refunded Indemnified Taxes or Other
Taxes, to the Borrower, net of all out-of-pocket expenses (including any Taxes
to which such Lender has become subject as a result of its receipt of such
refund) of the Administrative Agent or such Lender incurred in obtaining such
refund and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
Borrower agrees to promptly return such refund (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or the applicable Lender, as the case may be, if it
receives notice from the Administrative Agent or the applicable Lender that the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. Nothing contained in this Section 2.19(f) shall require
the Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems to be confidential) to
the Borrower or any other person.
(g) Notwithstanding anything to the contrary in this Section, if the
Internal Revenue Service determines that a Lender is participating in a conduit
financing arrangement as defined in Section 7701(l) of the Code and the
regulations thereunder (a "Conduit Financing Arrangement"), then (i) any Taxes
that the Borrower is required to withhold from payments to such Lender shall be
excluded from the definition of "Indemnified Taxes" and (ii) such Lender shall
indemnify the Borrower in full for any and all Taxes for which the Borrower is
held directly liable under Section 1461 of the Code by virtue of such Conduit
Financing Arrangement. Each Lender represents that it is not participating in a
Conduit Financing Arrangement.
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SECTION 2.20. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.13, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.14 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.19, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent, the Issuing Bank and the Swingline Lender, which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender or the Issuing Bank in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Issuing Bank and the Swingline Lender, respectively, plus all Fees and other
amounts accrued for the account of such Lender or the Issuing Bank hereunder
(including any amounts under Section 2.13 and Section 2.15); provided further
that, if prior to any such transfer and assignment the circumstances or event
that resulted in such Lender's or the Issuing Bank's claim for compensation
under Section 2.13 or notice under Section 2.14 or the amounts paid pursuant to
Section 2.19, as the case may be, cease to cause such Lender or the Issuing Bank
to suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in
Section 2.14, or cease to result in amounts being payable under Section 2.19, as
the case may be (including as a result of any action taken by such Lender or the
Issuing Bank pursuant to paragraph (b) below), or if such Lender or the Issuing
Bank shall waive its right to claim further compensation under Section 2.13 in
respect of such circumstances or event or shall withdraw its notice under
Section 2.14 or shall waive its right to further payments under Section 2.19 in
respect of such circumstances or event, as the case may be, then such Lender or
the Issuing Bank shall not thereafter be required to make any such transfer and
assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.13, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.14 or (iii) the Borrower is required to pay any additional amount to
any Lender or the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank, pursuant to Section 2.19, then such Lender or the
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by the Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.13 or enable it to withdraw its notice pursuant to
Section 2.14 or would reduce amounts payable pursuant to Section 2.19, as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
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costs and expenses incurred by any Lender or the Issuing Bank in connection with
any such filing or assignment, delegation and transfer.
SECTION 2.21. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans in dollars to the Borrower
at any time and from time to time on and after the Closing Date and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans exceeding $10,000,000 or
(ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $250,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent by
telecopy, or by telephone (confirmed by telecopy), not later than 12:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to an account as directed by the Borrower in
the notice requesting such Swingline Loan on the date such Swingline Loan is so
requested.
(c) Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Swingline Loan, in whole or in part, upon giving written
or telecopy notice (or telephone notice promptly confirmed by written, or
telecopy notice) to the Swingline Lender and to the Administrative Agent before
12:00 (noon), New York City time on the date of prepayment at the Swingline
Lender's address for notices specified in Schedule 2.01. All principal payments
of Swingline Loans shall be accompanied by accrued interest on the principal
amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 11:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the
Revolving Credit Lenders will participate. The Administrative Agent will,
promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata
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Percentage of such Swingline Loan or Loans. In furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Revolving Credit Lender's Pro Rata
Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Credit Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.02(c) with respect to Loans made by such Lender
(and Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations
of the Lenders) and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent
shall notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may request the
issuance of a Letter of Credit in dollars for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time while the Revolving Credit Commitments remain in
effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (i) the L/C Exposure shall not exceed
$35,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
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(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than the end of the day
on which the Borrower shall have received notice from the Issuing Bank that
payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower, any Subsidiary or other Affiliate thereof or any other person
may at any time have against the beneficiary under any Letter of Credit,
the Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan Document
or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a 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;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
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(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign
at any time by giving 180 days' prior written notice to the Administrative
Agent, the Lenders and the
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Borrower, and may be removed at any time by the Borrower by notice to the
Issuing Bank, the Administrative Agent and the Lenders. Subject to the next
succeeding paragraph, upon the acceptance of any appointment as the Issuing Bank
hereunder by a Lender that shall agree to serve as successor Issuing Bank, such
successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be
discharged from its obligations to issue additional Letters of Credit hereunder.
At the time such removal or resignation shall become effective, the Borrower
shall pay all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The
acceptance of any appointment as the Issuing Bank hereunder by a successor
Lender shall be evidenced by an agreement entered into by such successor, in a
form satisfactory to the Borrower and the Administrative Agent, and, from and
after the effective date of such agreement, (i) such successor Lender shall have
all the rights and obligations of the previous Issuing Bank under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the resignation or removal of the
Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date, provided, however that the Borrower shall
automatically make such deposit upon any Event of Defaul described in sections
(g) or (h) of Article VII. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the
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terms of this Agreement. Any Lender designated as an issuing bank pursuant to
this paragraph (k) shall be deemed (in addition to being a Lender) to be the
Issuing Bank with respect to Letters of Credit issued or to be issued by such
Lender, and all references herein and in the other Loan Documents to the term
"Issuing Bank" shall, with respect to such Letters of Credit, be deemed to refer
to such Lender in its capacity as Issuing Bank, as the context shall require.
(l) Existing Letter of Credit. Each Existing L/C shall be deemed to be a
Letter of Credit issued hereunder, and on the Closing Date each Revolving Credit
Lender shall be deemed to have been granted and acquired participations therein
pursuant to paragraph (d) above.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and each
of the Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has all requisite
power and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party and, in the case of the Borrower, to borrow
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which Holdings, the Borrower or any Subsidiary is a party or by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by Holdings, the Borrower or any
Subsidiary (other than any Lien created hereunder or under the Pledge
Agreement).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party thereto will constitute,
a legal, valid and binding obligation of such Loan Party enforceable against
such Loan Party in accordance with its terms.
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SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the execution, delivery and performance
by the Loan Parties of the Loan Documents.
SECTION 3.05. Financial Statements. Holdings has heretofore furnished to
the Lenders (i) its consolidated balance sheets and related statements of
income, stockholder's equity and cash flows (x) as of and for the period ended
December 26, 1999, audited by and accompanied by the opinion of KPMG Peat
Marwick LLP, independent public accountants, and (y) as of and for the fiscal
quarter and the portion of the fiscal year ended April 2, 2000, certified by its
chief financial officer. Such financial statements present fairly the financial
condition and results of operations and cash flows of Holdings and its
consolidated Subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of Holdings and its consolidated Subsidiaries as of the dates
thereof. Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, results of operations, prospects, condition,
financial or otherwise, or material agreements of Holdings, the Borrower and the
Subsidiaries, taken as a whole, since December 26, 1999.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets, except for
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for
their intended purposes. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied with
all obligations under all material leases to which it is a party and all such
leases are in full force and effect. Each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date
a list of all Subsidiaries and the percentage ownership interest of Holdings or
the Borrower therein. The shares of capital stock or other ownership interests
so indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
Holdings or the Borrower, directly or indirectly, free and clear of all Liens
other than Liens created by the Pledge Agreement.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09 or Schedule 3.17, there are not any actions, suits or proceedings
at law or in equity or by or before any Governmental Authority now pending or,
to the knowledge of Holdings or the Borrower, threatened against or affecting
Holdings or the Borrower or any Subsidiary or any business, property or rights
of any such person (i) that involve any Loan Document or (ii) as to which there
is a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
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(b) Except for matters covered by Section 3.17, none of Holdings, the
Borrower or any of the Subsidiaries or any of their respective material
properties or assets is in violation of, nor will the continued operation of
their material properties and assets as currently conducted violate, any law,
rule or regulation (including any zoning or building ordinance, code or approval
or any building permits) or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Holdings, the Borrower or any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
None of Holdings, the Borrower or any Subsidiary is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal tax returns and all
material, state, local and foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes due and payable by
it and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, shall have set aside on its books adequate
reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered
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pursuant thereto contained, contains or will contain any material misstatement
of fact or omitted, omits or will omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were, are or will be made, not misleading as of the date such information is
dated or certified; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, each of Holdings and the Borrower represents only that
it acted in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Borrower or
any of its ERISA Affiliates. The present value of all benefit liabilities under
each Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more than $200,000 the
fair market value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on those assumptions used to
fund each such Plan) did not, as of the last annual valuation dates applicable
thereto, exceed by more than $200,000 the fair market value of the assets of all
such underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Holdings, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction that subject the Holdings or any of its Subsidiaries, directly or
indirectly, to a material tax or civil penalty. With respect to each Foreign
Pension Plan, reserves have been established in the financial statements
furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law and prudent business practice or, where required, in accordance
with ordinary accounting practices in the jurisdiction in which such Foreign
Pension Plan is maintained. The aggregate unfunded liabilities, with respect to
such Foreign Pension Plans could not reasonably be expected to result in a
Material Adverse Effect. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against the Holdings or any
of its Affiliates with respect to any Foreign Pension Plan which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17:
(a) The properties owned or operated by Holdings, the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the Subsidiaries
are in compliance, and in the last six years have been in compliance, with all
Environmental Laws and all necessary Environmental Permits have been obtained
and are in effect, except to the extent
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that such non-compliance or failure to obtain any necessary permits, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect;
(c) There have been no Releases or threatened Releases by the Borrower or
any Subsidiary or, to their knowledge, by any other party, at, from, under or
proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries has received
any notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters Holdings, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect; and
(e) Hazardous Materials have not been transported from the Properties by or
on behalf of Holdings, the Borrower or any Subsidiary, nor have Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
the Properties in a manner that could give rise to liability under any
Environmental Law, nor have the Borrower or the Subsidiaries retained or assumed
any liability, contractually or by operation of law, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or
assumed liabilities, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.18. Insurance. The Borrower and its Subsidiaries have insurance
in such amounts and covering such risks and liabilities as are in accordance
with normal industry practice. Such insurance is in full force and effect and
all premiums have been duly paid, to the extent due.
SECTION 3.19. Pledge Agreement. The Pledge Agreement is effective to create
in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when the Collateral is delivered to the
Collateral Agent, the Pledge Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other person.
SECTION 3.20. Labor Matters As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters in any manner which could reasonably be expected to
have a Material Adverse Effect. All payments due from Holdings, the Borrower or
any Subsidiary, or for which any claim may be made against Holdings, the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of Holdings, the Borrower or such Subsidiary except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
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SECTION 3.21. Solvency. Immediately following the making of each Loan and
after giving effect to the application of the proceeds of each Loan, (a) the
fair value of the assets of the Loan Parties taken as a whole, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of the Loan
Parties taken as a whole will be greater than the amount that will be required
to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties taken as a whole will be able
to pay their debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (d) the Loan Parties
taken as a whole will not have unreasonably small capital with which to conduct
the businesses in which they are engaged as such businesses are now conducted
and are proposed to be conducted following the Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing, including
each Borrowing of a Swingline Loan, and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 (or such notice shall have been deemed given in
accordance with Section 2.03) or, in the case of the issuance, amendment,
extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.22(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.21(b).
(b) The representations and warranties set forth in Article III hereof and
in each other Loan Document shall be true and correct in all material respects
on and as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance in all
material respects with all the terms and provisions set forth herein and in each
other Loan Document on its part to be observed or performed, and at the time of
and immediately after such Credit Event, no Event of Default or Default shall
have occurred and be continuing.
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(d) After giving effect to such Credit Event, the incurrence of
Indebtedness (as defined in the Senior Subordinated Notes Indentures)
represented by such Credit Event, does not cause any breach, violation or
default under any Senior Subordinated Note Document.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Holdings on the date of such Credit Event as to the
matters specified in paragraphs (b), (c) and (d) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Bank, the favorable written opinions of (i) Xxxxxx X.
Xxxxx, Esq., General Counsel of Holdings and the Borrower, substantially to the
effect set forth in Exhibit H-1 and (ii) Dechert, Price & Xxxxxx, special
counsel to Holdings and the Borrower, substantially to the effect set forth in
Exhibit H-2, (x) dated the Closing Date, (y) addressed to the Issuing Bank, the
Administrative Agent and the Lenders, and (z) covering such other matters
relating to the Loan Documents as the Administrative Agent shall reasonably
request, and Holdings and the Borrower hereby request such counsel to deliver
such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is a party
and, in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment thereto shown
on the certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf
of such Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders, the Issuing Bank or the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
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(e) The Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding capital stock of the Borrower and the
Subsidiaries shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and certificates
representing such shares, accompanied by instruments of transfer and stock
powers endorsed in blank, shall be in the actual possession of the Collateral
Agent, other than the capital stock of the subsidiaries listed on Schedule 4.01
hereto, which shall be pledged to the Collateral Agent as soon as practicable
(but no later than 60 days) after the Closing Date, by execution of a supplement
to the Pledge Agreement; provided that to the extent to do so would cause
adverse tax consequences to the Borrower, (i) neither the Borrower nor any
Domestic Subsidiary shall be required to pledge more than 65% of the voting
stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be required
to pledge the capital stock of any of its subsidiaries.
(g) All principal, interest, fees and other amounts outstanding or due
under the Existing Credit Agreement shall have been paid in full, the
commitments thereunder terminated and all guarantees thereof and security
therefor released and discharged, and the Administrative Agent shall have
received satisfactory evidence of the foregoing.
(h) Each of the Parent Guarantee Agreement, the Subsidiary Guarantee
Agreement and the Indemnity, Subrogation and Contribution Agreement shall have
been duly executed by the parties thereto, shall have been delivered to the
Collateral Agent and shall be in full force and effect.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents,
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copyrights, trademarks and trade names material to the conduct of its business;
maintain and operate such business in substantially the manner in which it is
presently conducted and operated; comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times
provided, however, that nothing in this Section 5.01(b) shall prevent (i) sales
of assets, consolidations or mergers by or involving Holdings, the Borrower or
any of their respective Subsidiaries in accordance with Section 6.05, (ii) the
withdrawal by Holdings, the Borrower or any of their respective Subsidiaries of
their qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a Material Adverse Effect or
(iii) the abandonment by Holdings, the Borrower or any of their respective
Subsidiaries of any rights, franchises, licenses and patents that the Borrower
reasonably determines are not useful to its business.
SECTION 5.02. Insurance. Keep its insurable properties adequately insured
at all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies in the same
or similar businesses operating in the same or similar locations, including
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of Holdings,
furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, the consolidated
and consolidating balance sheet and related statements of income and cash
flows of Holdings and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by KPMG Peat Marwick LLP or
other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be qualified
in any material respect) to the effect that such consolidated financial
statements
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fairly present the financial condition and results of operations of
Holdings and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, the consolidated balance sheet and related
statements of income and cash flows of Holdings and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by
one of its Financial Officers as fairly presenting the financial condition
and results of operations of Holdings and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments;
(c) (i) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a certificate of a Financial Officer
certifying such statements certifying that no Event of Default or Default
has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto, (ii) concurrently with any
delivery of financial statements under sub-paragraph (a) or (b) above, a
certificate of a Financial Officer certifying such statements setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.08,
6.09 and 6.10, and (iii) in the case of paragraph (a) above, a report of
the accounting firm opining on such financial statements stating that in
the course of its regular audit of the financial statements of Holdings and
its Subsidiaries, which audit was conducted in accordance with GAAP, such
accounting firm obtained no knowledge that any Event of Default or Default
has occurred or, if in the opinion of such accounting firm such an Event of
Default or Default has occurred, specifying the nature and extent thereof;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
to holders of its Indebtedness pursuant to the terms of the documentation
governing such Indebtedness (or any trustee, agent or other representative
therefor), as the case may be;
(e) promptly after the receipt thereof by Holdings, the Borrower or
any of their respective Subsidiaries, a copy of any "management letter"
received by any such person from its certified public accountants and the
management's responses thereto;
(f) no later than 30 days following the first day of each fiscal year
of Holdings, a budget in form reasonably satisfactory to the Administrative
Agent (including budgeted statements of income by each of the Borrower's
business units and sources and uses of cash and balance sheets) prepared by
Holdings for (i) each of the four quarters of such fiscal year prepared in
detail and (ii) each of the five years immediately following such fiscal
year prepared in summary form, in each case, of Holdings and its
Subsidiaries, accompanied by the statement of a Financial Officer of
Holdings to the effect that the budget is a reasonable estimate for the
period covered thereby; and
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(g) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of Holdings or any ERISA Affiliate knows or
has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Event could reasonably be expected to result in liability
of Holdings in an aggregate amount exceeding $200,000, a statement of a
Financial Officer of Holdings setting forth details as to such ERISA Event and
the action, if any, that Holdings proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all requirements of law are made of all dealings and
transactions in relation to its business and activities. Each Loan Party will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any Subsidiary
at reasonable times and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of Holdings, the Borrower or any Subsidiary with the
officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material Environmental Permits
necessary for its operations and Properties; and conduct any Remedial Action in
accordance with Environmental Laws; provided, however,
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that none of Holdings, the Borrower or any of the Subsidiaries shall be required
to undertake any Remedial Action required by Environmental Laws to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused by
reason of a breach of Section 3.17 or 5.09 shall have occurred and be continuing
for more than 20 days without the Borrower or its Subsidiaries commencing
activities reasonably likely to cure such Default, at the written request of the
Required Lenders through the Administrative Agent, provide to the Lenders within
45 days after such request, at the expense of the Borrower, an environmental
site assessment report regarding the matters which are the subject of such
default prepared by an environmental consulting firm reasonably acceptable to
the Administrative Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or Remedial Action in
connection with such Default.
SECTION 5.11. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements) that may be required under applicable law, or that the Required
Lenders, the Administrative Agent or the Collateral Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and
first priority of the security interests created or intended to be created by
the Pledge Agreement. Holdings will cause any subsequently acquired or organized
Domestic Subsidiary to execute a Subsidiary Guarantee Agreement, Indemnity
Subrogation and Contribution Agreement and a Pledge Agreement in favor of the
Collateral Agent.
(b) Without limiting paragraph (a) above, if at any time the Index Debt is
rated (i) B or lower, as determined by S&P, and (ii) B3 or lower, as determined
by Xxxxx'x, pledge and cause to be pledged (at the sole cost and expense of the
Loan Parties) to the Collateral Agent for the benefit of the Secured Parties (in
addition to and not in substitution for the pledge of Collateral pursuant to the
Pledge Agreement) substantially all of the assets of Holdings, the Borrower and
the Domestic Subsidiaries pursuant to one or more security agreements and/or
mortgage agreements in a form to be provided by the Collateral Agent at such
time (the form of which, to the extent practicable, will be substantially
identical to those executed and delivered by the Loan Parties in connection with
the Existing Credit Agreement) and execute and deliver to the Collateral Agent
all such other instruments and documents as the Collateral Agent may reasonably
request to effectuate, evidence or confirm such pledge.
ARTICLE VI
Negative Covenants
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Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Holdings nor the Borrower
will, nor will they cause or permit any of their respective Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Loan Documents;
(b) Indebtedness actually outstanding on the Closing Date and listed
on Schedule 6.01, and any refinancings or renewals thereof; provided that
such Indebtedness may only be refinanced or renewed so long as (i) the
refinancing Indebtedness has an aggregate principal amount not greater than
the aggregate principal amount of the Indebtedness being renewed or
refinanced, plus the amount of any premiums and accrued interest required
to be paid thereon and fees and expenses associated therewith, (ii) the
refinancing Indebtedness has a later or equal final maturity and longer or
equal weighted average life than the Indebtedness being renewed or
refinanced, (iii) if the Indebtedness being renewed or refinanced was
subordinated to the Obligations, the refinancing Indebtedness is
subordinated to at least the Obligations to at least the same extent and on
terms no less favorable to the Lenders and (iv) the covenants, events of
default and other provisions thereof (including any guarantees thereof)
shall be, in the aggregate, no less favorable to the Lenders than those
contained in the Indebtedness being renewed or refinanced;
(c) Indebtedness under non-speculative Interest Rate Protection
Agreements which may be entered into from time to time by the Borrower and
which the Borrower in good faith believes will provide protection against
fluctuations in interest rates with respect to floating rate Indebtedness
then outstanding, and permitted to remain outstanding, pursuant to the
other provisions of this Section 6.01;
(d) Indebtedness evidenced by Capital Lease Obligations; provided that
in no event shall the aggregate principal amount of Capital Lease
Obligations permitted by this paragraph (d) exceed $10,000,000 at any time
outstanding;
(e) Indebtedness subject to Liens permitted under Section 6.02(f), so
long as the outstanding amount of such Indebtedness does not exceed the
amount provided in said Section 6.02(f);
(f) intercompany Indebtedness of the Borrower and its Subsidiaries
outstanding to the extent permitted by Section 6.04(f), (g) and (j);
(g) in addition to any Indebtedness permitted by the preceding
paragraph (f), Indebtedness of any Wholly
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Owned Subsidiary to the Borrower or another Wholly Owned Subsidiary
constituting the purchase price in respect of intercompany transfers of
goods and services made in the ordinary course of business to the extent
not constituting Indebtedness for borrowed money;
(h) Indebtedness under performance bonds, letter of credit obligations
to provide security for worker's compensation claims and bank overdrafts,
in each case incurred in the ordinary course of business; provided that any
obligations arising in connection with such bank overdraft Indebtedness is
extinguished within five Business Days;
(i) Indebtedness evidenced by Other Hedging Agreements entered into
pursuant to Section 6.04(e);
(j) Indebtedness incurred by Foreign Subsidiaries from time to time
after the Closing Date so long as the aggregate principal amount of all
Indebtedness (including trade letters of credit) incurred pursuant to this
paragraph (j) at any time outstanding does not exceed the excess of (x)
$85,000,000 over (y) the aggregate principal amount of all Indebtedness
(including trade letters of credit) of Foreign Subsidiaries then
outstanding pursuant to paragraph (b) of this Section 6.01, and unsecured
Guarantees of the Indebtedness permitted pursuant to this paragraph (j) by
Holdings, the Borrower or any Domestic Subsidiaries of Holdings or the
Borrower;
(k) Indebtedness consisting of Permitted Junior Capital to the extent
that (i) such Permitted Junior Capital is issued to the seller as all or a
part of the consideration for any Permitted Acquisition or (ii) the
proceeds thereof are used substantially concurrently with the issuance
thereof to finance all or a part of any Permitted Acquisition and to pay
related fees and expenses, and any refinancings or renewals of such
Permitted Junior Capital, provided that such Indebtedness may only be
refinanced or renewed so long as (w) the refinancing Permitted Junior
Capital has an aggregate principal amount not greater than the aggregate
principal amount of the Permitted Junior Capital being renewed or
refinanced, plus the amount of any premiums and accrued interest required
to be paid thereon and fees and expenses associated therewith, (x) the
refinancing Permitted Junior Capital has a later or equal final maturity
and longer or equal weighted average life than the Indebtedness being
renewed or refinanced, (y) the refinancing Permitted Junior Capital is
subordinated to at least the Obligations to at least the same extent and on
terms no less favorable to the Lenders and (z) the covenants, events of
default and other provisions thereof (including any guarantees thereof)
shall be, in the aggregate, no less favorable to the Lenders than those
contained in the Permitted Junior Capital being renewed or refinanced; and
(l) additional Indebtedness of the Borrower and its Subsidiaries to
the extent not permitted by the foregoing clauses of this Section 6.01 not
to exceed $35,000,000 in aggregate principal amount at any time
outstanding.
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SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP in the United States (or the equivalent thereof in
any country in which a Foreign Subsidiary is doing business, as
applicable);
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's, landlord's and mechanics' liens
and other similar Liens arising in the ordinary course of business, and (i)
which do not in the aggregate materially detract from the value of the
property or assets of Holdings and its Subsidiaries, taken as a whole, or
the Borrower and do not materially impair the use thereof in the operation
of the business of Holdings and its Subsidiaries, taken as a whole, or the
Borrower, or (ii) which are being contested in good faith by appropriate
proceedings, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(c) Liens in existence on the Closing Date and set forth on Schedule
6.02; provided that (i) the aggregate principal amount of the Indebtedness,
if any, secured by such Liens does not increase and (ii) such Liens do not
encumber any additional assets or properties of Holdings or any of its
Subsidiaries;
(d) Liens created pursuant to the Pledge Agreement;
(e) Liens upon assets of the Borrower and its Subsidiaries subject to
Capital Lease Obligations to the extent permitted by Section 6.01; provided
that (i) such Liens only serve to secure the payment of Indebtedness
arising under such Capital Lease Obligation and (ii) the Lien encumbering
the asset giving rise to the Capital Lease Obligation does not encumber any
other asset (other than proceeds thereof) of the Borrower or any Subsidiary
of the Borrower;
(f) Liens placed upon assets used in the ordinary course of business
of the Borrower or any of its Subsidiaries at the time of acquisition
thereof by the Borrower or any such Subsidiary or within 90 days thereafter
to secure Indebtedness incurred to pay all or a portion of the purchase
price thereof; provided that (i) the aggregate outstanding principal amount
of all Indebtedness secured by Liens permitted by this paragraph (f) shall
not at any time exceed $10,000,000 and (ii) in all events, the Lien
encumbering the assets so acquired does not encumber any other asset (other
than proceeds thereof) of the Borrower or such Subsidiary;
(g) easements, rights-of-way, restrictions (including zoning
restrictions), covenants encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case whether
now or hereafter in existence, not securing
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Indebtedness and not materially interfering with the conduct of the
business of Holdings and its Subsidiaries taken as a whole or the Borrower;
(h) Liens arising out of judgments or awards in respect of which the
Borrower or any of its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall be secured
a subsisting stay of execution pending such appeal or proceedings; provided
that the aggregate amount of all such judgments or awards (and any cash and
the fair market value of any property subject to such Liens) does not
exceed $3,000,000 at any time outstanding;
(i) Liens (other than any Lien imposed by ERISA) (i) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (ii) to secure the performance of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (iii)
arising by virtue of deposits made in the ordinary course of business to
secure liability for premiums to insurance carriers; provided that the
aggregate amount of deposits at any time pursuant to clause (ii) and clause
(iii) shall not exceed $1,000,000 in the aggregate;
(j) any interest or title of a lessor, sublessor, licensee or licensor
under any lease or license agreement permitted by this Agreement;
(k) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods;
(l) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of business
in accordance with the past practices of the Borrower and its Subsidiaries;
(m) Liens on assets of Foreign Subsidiaries; provided that (i) such
Liens do not extend to, or encumber, assets which constitute Collateral or
the capital stock of the Borrower or any of its Subsidiaries and (ii) such
Liens extending to the assets of any Foreign Subsidiary secure only
Indebtedness incurred by such Foreign Subsidiary pursuant to Section
6.01(j); and
(n) Liens not otherwise permitted by the foregoing paragraphs (a)
through (m) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $10,000,000 in the aggregate at any time outstanding.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it 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 such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred unless (i) the sale of such property is
permitted
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by Section 6.05 and (ii) any Liens arising in connection with its use of such
property are permitted by Section 6.02(e).
SECTION 6.04. Investments, Loans and Advances. Directly or indirectly, lend
money or credit or make advances to any person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, except that
the following shall be permitted:
(a) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them and Cash Equivalents;
(b) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective employees so long as
the aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $10,000,000;
(c) the Borrower may enter into Interest Rate Protection Agreements to
the extent permitted in Section 6.01(c);
(d) Investments by Holdings, the Borrower and the Subsidiaries in the
capital stock of their respective subsidiaries as in effect on the Closing
Date;
(e) the Borrower may enter into and perform its obligations under
Other Hedging Agreements entered into in the ordinary course of business
and so long as any such Other Hedging Agreement is not speculative in
nature and is (i) related to income derived from foreign operations of the
Borrower or any Subsidiary or otherwise related to purchases permitted
hereunder from foreign suppliers or (ii) entered into to protect the
Borrower and/or its Subsidiaries against fluctuations in the prices of raw
materials used in their businesses;
(f) any Wholly Owned Subsidiary may make intercompany loans to the
Borrower or any Wholly Owned Subsidiary and the Borrower may make
intercompany loans and advances to any Wholly Owned Subsidiary; provided
that any promissory notes evidencing such intercompany loans shall be
pledged (and delivered) by the Borrower or the respective Domestic Wholly
Owned Subsidiary that is the lender of such intercompany loan as Collateral
pursuant to the Pledge Agreement, provided further that (i) neither the
Borrower nor any Domestic Subsidiaries of the Borrower may make loans to
any Foreign Subsidiaries of the Borrower pursuant to this paragraph (f) and
(ii) any loans made by any Foreign Subsidiaries to the Borrower or any of
its Domestic Subsidiaries pursuant to this paragraph (f) shall be
subordinated to the obligations of the Loan Parties pursuant to
subordinated provisions in substantially the form of Exhibit I;
(g) the Borrower or any Wholly Owned Subsidiary may make Permitted
Acquisitions; provided that (i) the Borrower or such Subsidiary complies
with the applicable provisions of Sections 5.11, 6.13 and 6.14 and the
Pledge Agreement with respect to the Acquired Entity and (ii) the aggregate
consideration paid after the Closing
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Date (except to the extent payable in, or with the proceeds of, Permitted
Junior Capital) for all Permitted Acquisitions of Acquired Entities that
will become Foreign Subsidiaries, when combined with the aggregate amount
of investments in, and loans and advances to, Foreign Subsidiaries made
after the Closing Date pursuant to paragraphs (j) and (k) below, shall not
exceed 10% of Consolidated Net Tangible Assets, as derived from the latest
consolidated balance sheet of Holdings provided to the Administrative Agent
pursuant to Section 5.04(a) or (b), as applicable;
(h) the Borrower and its Subsidiaries may sell or transfer amounts to
the extent permitted by Section 6.05;
(i) the Borrower may establish Subsidiaries to the extent permitted by
Section 6.14;
(j) the Borrower and its Domestic Wholly Owned Subsidiaries may make
loans and advances to, or other investments in, Foreign Subsidiaries of the
Borrower; provided that (i) the aggregate amount of any loans, advances or
other investments made after the Closing Date (determined without regard to
any write-downs or write-offs thereof) pursuant to this paragraph (j), when
combined with the aggregate consideration paid after the Closing Date
(except to the extent payable in, or with the proceeds of, Permitted Junior
Capital) for all Permitted Acquisitions of Acquired Entities that will
become Foreign Subsidiaries pursuant to paragraph (g) above and the
aggregate amount of all other investments in, and loans and advances to
Foreign Subsidiaries made after the Closing Date pursuant to paragraph (k)
below, shall not exceed 10% of Consolidated Net Tangible Assets, as derived
from the latest consolidated balance sheet of Holdings provided to the
Administrative Agent pursuant to Section 5.04(a) or (b), as applicable; and
(k) in addition to investments permitted by clauses (a) through (j)
above, the Borrower and its Subsidiaries may make investments, loans and
advances; provided that (i) the aggregate amount invested, loaned or
advanced after the Closing Date pursuant to this paragraph (k) (determined
without regard to any write-downs or write-offs of such investments, loans
or advances) shall not exceed in the aggregate 7.5% of Consolidated Net
Tangible Assets and (ii) the aggregate amount of all investments in, and
loans and advances to, Foreign Subsidiaries, made after the Closing Date
pursuant to this paragraph (k), when combined with the aggregate
consideration paid after the Closing Date (except to the extent payable in,
or with the proceeds of, Permitted Junior Capital) for all Permitted
Acquisitions of Acquired Entities that will become Foreign Subsidiaries
pursuant to paragraph (g) above and the aggregate amount of loans, advances
and investments made after the Closing Date pursuant to paragraph (j)
above, does not exceed 10% of Consolidated Net Tangible Assets, in each
case as derived from the latest consolidated balance sheet of Holdings
provided to the Administrative Agent pursuant to Section 5.04(a) or (b), as
applicable.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.
Wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its
property or assets, or purchase or otherwise acquire (in one or a series of
related
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transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials, equipment and intangible assets in the
ordinary course of business) of any person (or agree to do any of the foregoing
at any future time), except that:
(a) Capital Expenditures by the Borrower and its Subsidiaries shall be
permitted;
(b) each of the Borrower and its Subsidiaries may (i) in the ordinary
course of business, sell, lease or otherwise dispose of any assets which,
in the reasonable judgment of such person, are obsolete, worn out or
otherwise no longer useful in the conduct of such person's business,
provided that any assets sold or otherwise disposed pursuant to this clause
(b)(i) shall be replaced with new assets performing substantially the same
function and (ii) sell, lease or otherwise dispose of any assets, provided
that the aggregate consideration received in respect of all assets subject
to sales or other dispositions pursuant to this clause (b)(ii) shall not
exceed $20,000,000 in any four fiscal quarters of the Borrower;
(c) investments and Permitted Acquisitions may be made to the extent
permitted by Section 6.04;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
any such lease does not create a Capital Lease Obligation except to the
extent permitted by Section 6.01);
(e) each of the Borrower and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business and consistent
with past practices (including without limitation sales or transfers of
inventory between or among the Borrower and its Subsidiaries);
(f) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse (except for Indebtedness arising in connection
therewith that is permitted by Section 6.01(j)) and in the ordinary course
of business, accounts receivable and related promissory notes arising in
the ordinary course of business, but only in connection with the compromise
or collection thereof consistent with customary industry practice (and not
as part of any bulk sale);
(h) the Borrower or any Domestic Wholly Owned Subsidiary of the
Borrower may transfer assets or lease to or acquire or lease assets from
the Borrower or any other Domestic Wholly Owned Subsidiary or any Domestic
Wholly Owned Subsidiary may be merged into the Borrower (as long as the
Borrower is the surviving corporation of such merger as a Wholly Owned
Subsidiary of) or any other Domestic Wholly Owned Subsidiary of the
Borrower; and
(i) the Borrower and its Subsidiaries may incur Tools and Molding
Expenditures in an aggregate amount not to exceed $15,000,000 during any
fiscal year.
To the extent the Required Lenders waive the provisions of this Section 6.05
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.05, such Collateral (unless sold to Holdings or a
Subsidiary of Holdings) shall be sold free and clear of the Liens
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created by the Pledge Agreement, and the Administrative Agent and Collateral
Agent shall be authorized to take any actions deemed appropriate in order to
effect the foregoing.
SECTION 6.06. Dividends. Authorize, declare or pay any Dividends with
respect to Holdings or any of its Subsidiaries, except that:
(a) any Subsidiary of the Borrower (i) may pay cash Dividends to the
Borrower or any Wholly Owned Subsidiary of the Borrower and (ii) if such
Subsidiary is not a Wholly Owned Subsidiary, may pay cash Dividends to its
shareholders generally so long as the Borrower or its respective Subsidiary
which owns the equity interest or interests in the Subsidiary paying such
Dividends receives at least its proportionate share thereof (based upon its
relative holdings of equity interests in the Subsidiary paying such
Dividends and taking into account the relative preferences, if any, of the
various classes of equity interests in such Subsidiary);
(b) so long as there shall exist no Default or Event of Default (both
before and after giving effect to the payment thereof), Holdings may
repurchase outstanding shares of its common stock (or options to purchase
such common stock) following the death, disability, retirement or
termination of employment of employees, officers or directors of Holdings
or any of its Subsidiaries; provided that (i) all amounts used to effect
such repurchases are obtained by Holdings from a substantially concurrent
issuance of its common stock (or options to purchase such common stock) to
other employees, members of management, executive officers or directors of
Holdings or any of its Subsidiaries or (ii) to the extent the proceeds used
to effect any repurchase pursuant to this clause (ii) are not obtained as
described in preceding clause (i), the aggregate amount of Dividends paid
by Holdings pursuant to this paragraph (b) (exclusive of amounts paid as
described pursuant to preceding clause (i)) shall not exceed $1,000,000 in
any fiscal year of Holdings; provided that, in the event that the maximum
amount which is permitted to be expended in respect of Dividends during any
fiscal year pursuant to this clause (b)(ii) is not fully expended during
such fiscal year, the maximum amount which may be expended during the
immediately succeeding fiscal year pursuant to this clause (b) (ii) shall
be increased by such unutilized amount;
(c) the Borrower may pay cash Dividends to Holdings for the purpose of
paying, so long as all proceeds thereof are promptly used by Holdings to
pay, its operating expenses incurred in the ordinary course of business and
other corporate overhead costs and expenses (including, without limitation,
legal and accounting expenses and similar expenses); provided that the
aggregate amount of Dividends paid by Holdings pursuant to this clause (c)
shall not exceed $750,000 in any fiscal year of Holdings;
(d) the Borrower may pay cash Dividends to Holdings for the purpose of
paying, so long as all proceeds thereof are promptly used by Holdings to
pay, franchise taxes and Federal, state and local income taxes and interest
and penalties with respect thereto, if any, payable by Holdings; provided
that any refund shall be promptly returned by Holdings to the Borrower;
(e) the Borrower may pay cash Dividends to Holdings for the purpose of
enabling Holdings to pay the Dividends referred to in clause (b) above or
to make the
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repurchases referred to in clause (f) below, so long as all proceeds
thereof are promptly used by Holdings to pay such Dividends or make such
repurchases; and
(f) so long as there shall exist no Default or Event of Default (both
before and after giving effect to the payment thereof) Holdings may
repurchase outstanding shares of its common stock for the purpose of (or to
be held in treasury for the purpose of) funding employee stock option
and/or employee stock purchase plans from time to time with such common
stock so long as the aggregate amount expended for such repurchases does
not exceed $5,000,000 in any fiscal year of Holdings.
SECTION 6.07. Transactions with Affiliates. Enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of Holdings or any of its Subsidiaries, other than
in the ordinary course of business and on terms and conditions substantially as
favorable to Holdings or such Subsidiary as would reasonably be obtained by
Holdings or such Subsidiary at that time in a comparable arm's-length
transaction with a person other than an Affiliate, except that:
(a) Dividends may be paid to the extent provided in Section 6.06;
(b) loans may be made and other transactions may be entered into
between and among the Borrower, Holdings, the Subsidiaries and their
respective Affiliates to the extent permitted by Sections 6.01 and 6.04;
(c) customary fees may be paid to non-officer directors of Holdings;
and
(d) the Borrower may pay management fees to Holdings from time to time
in an amount not in excess of Holdings' compensation expenses for its
employees.
SECTION 6.08. Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters, in
each case taken as one accounting period, ended on the last day of a fiscal
quarter described below to be less than the amount set forth opposite such
fiscal quarter below:
Fiscal Quarter Ended
in, or Closest to Ratio
-------------------- -----
June 2000 through December 2000 3.00:1.00
March 2001 through December 2001 3.25:1.00
March 2002 through December 2002 3.50:1.00
March 2003 through December 2003 3.75:1.00
March 2004 and thereafter 3.75:1.00
SECTION 6.09. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters, in each case taken as one accounting period, ended on the last
day of any fiscal quarter set forth below to be less than the amount set forth
opposite such fiscal quarter below:
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Fiscal Quarter Ended
in, or Closest to Ratio
-------------------- -----
June 2000 through December 2000 1.00:1.00
March 2001 through December 2001 1.15:1.00
March 2002 through December 2002 1.20:1.00
March 2003 through December 2003 1.20:1.00
March 2004 and thereafter 1.20:1.00
SECTION 6.10. Maximum Leverage Ratio. Permit the Leverage Ratio at any time
during a fiscal quarter set forth below to be greater than the ratio set forth
opposite such fiscal quarter below:
Fiscal Quarter Ended
in, or Closest to Ratio
-------------------- -----
June 2000 through December 2000 3.25:1.00
March 2001 through December 2001 3.00:1.00
March 2002 through December 2002 2.75:1.00
March 2003 through December 2003 2.25:1.00
March 2004 and thereafter 2.00:1.00
SECTION 6.11. Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-laws and Certain Other Agreements, etc. (i)
amend or modify, or permit the amendment or modification of, any provision of
existing Indebtedness or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement or security agreement) relating
thereto other than any amendments or modifications to Indebtedness which do not
in any way materially adversely affect the interests of the Lenders and are
otherwise permitted under Section 6.01(b), (ii) make (or give any notice in
respect thereof) any voluntary or optional payment or prepayment on or
redemption or acquisition for value of, or any prepayment or redemption as a
result of any asset sale, change of control or similar event of, any Senior
Subordinated Notes or any Permitted Junior Capital, provided that so long as no
Default or Event of Default shall have occurred and be continuing or result
therefrom, the Borrower may expend up to $25,000,000 to optionally prepay,
repurchase or redeem any Senior Subordinated Notes; provided, further that if at
the time of such prepayment, repurchase or redemption, the Leverage Ratio, on a
Pro Forma Basis, is equal to or less than 2.00 to1.00, such amount shall be
increased to $75,000,000, (iii) amend or modify, or permit the amendment or
modification of, any provision of any Senior Subordinated Note Document other
than amendments or modifications which do not in any way materially adversely
affect the interests of the Lenders and which are effected to make technical
corrections to the respective documentation, (iv) amend or modify, or permit the
amendment or modification of, the Business Transfer Agreement, any Operating
Agreement, the Recapitalization Agreement, the NSC Asset Purchase Agreement or
any of the operating agreements entered into in connection therewith or any tax
sharing agreement, in each case except for amendments or modifications which are
not in any way adverse in any material respect
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to the interests of the Lenders or (v) amend, modify or change its Certificate
of Incorporation (including, without limitation, by the filing or modification
of any certificate of designation) or By-laws, or any agreement entered into by
it, with respect to its capital stock (including any shareholders' agreement),
or enter into any new agreement with respect to its capital stock, other than
any amendments, modifications or changes pursuant to this clause (v) or any such
new agreements pursuant to this clause (v) which do not in any way materially
adversely affect in any material respect the interests of the Lenders; provided
that nothing in this clause (v) shall prevent Holdings or any of its
Subsidiaries from amending its Certificate of Incorporation or By-laws to
provide indemnification to any officer or director of Holdings or any such
Subsidiary to the maximum extent permitted by the law of its jurisdiction of
incorporation; and provided further that Holdings may issue such capital stock
as is not prohibited by Section 6.13 and may amend its Certificate of
Incorporation to authorize any such capital stock.
SECTION 6.12. Limitation on Certain Restrictions on Subsidiaries. Directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Loan Documents, (iii) the Senior Subordinated Note
Documents, (iv) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of the Borrower or a Subsidiary of the
Borrower, (v) customary provisions restricting assignment of any agreement
entered into by the Borrower or a Subsidiary of the Borrower in the ordinary
course of business, (vi) any holder of a Lien permitted by Section 6.02 may
restrict the transfer of the asset or assets subject thereto and (vii)
restrictions which are not more restrictive than those contained in this
Agreement contained in any documents governing any Indebtedness incurred after
the Closing Date in accordance with the provisions of this Agreement.
SECTION 6.13. Limitation on Issuance of Capital Stock. (a) With respect to
Holdings, issue any capital stock that is not Qualified Capital Stock.
(b) Holdings will not permit any of its Subsidiaries to issue any capital
stock (including by way of sales of treasury stock) or any options or warrants
to purchase, or securities convertible into, capital stock, except (i) for
transfers and replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and additional issuances which do not decrease the
percentage ownership of Holdings or any of its Subsidiaries in any class of the
capital stock of such Subsidiary, (iii) in the case of Foreign Subsidiaries of
the Borrower, to qualify directors to the extent required by applicable law, and
(iv) Subsidiaries of the Borrower formed after the Closing Date pursuant to
Section 6.14 may issue capital stock to the Borrower or the respective
Subsidiary of the Borrower which is to own such stock. All capital stock issued
in accordance with this Section 6.13(b) shall, to the extent required by the
Pledge Agreement, be delivered to the Collateral Agent for pledge pursuant to
the Pledge Agreement.
SECTION 6.14. Limitation on Creation of Subsidiaries. Establish, create or
acquire any additional Subsidiaries without the prior written consent of the
Required Lenders; provided that the Borrower may establish or create one or more
Wholly Owned Subsidiaries of the Borrower
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without such consent so long as (a) 100% of the capital stock of any new
Domestic Subsidiary (or all capital stock of any new Foreign Subsidiary which is
owned by any Loan Party, except that not more than 65% of the voting stock of
any such Foreign Subsidiary shall be required to be so pledged) is upon the
creation or establishment of any such new Subsidiary pledged and delivered to
the Collateral Agent for the benefit of the Secured Parties under the Pledge
Agreement and (b) upon the creation or establishment of any such new Domestic
Subsidiary that owns assets of the type included in the Collateral, such
Domestic Subsidiary becomes a party to the Pledge Agreement in accordance with
Section 5.11 and the other Loan Documents.
SECTION 6.15. Business. (a) With respect to Holdings, engage in any
business activities or have any assets or liabilities, other than (i) its
ownership of the capital stock of the Borrower and liabilities incident thereto,
including its liabilities pursuant to the Pledge Agreement and its guarantee
pursuant to the Parent Guarantee Agreement and its guarantee of the Senior
Subordinated Notes and (ii) its employment of members of management of the
Borrower.
(b) With respect to the Borrower and its Subsidiaries, engage (directly or
indirectly) in any business other than the business in which the Borrower and
its Subsidiaries are engaged on the Closing Date and other businesses reasonably
related thereto.
SECTION 6.16. Designated Senior Indebtedness. Designate any indebtedness as
"Designated Senior Indebtedness" for purposes of the Senior Subordinated Note
Indentures unless the Required Lenders specifically consent thereto in writing.
SECTION 6.17. Fiscal Year. With respect to Holdings and the Borrower,
change its fiscal year-end.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with any Loan Document or the borrowings or issuances of Letters of Credit
hereunder, or any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false
or misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or
the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
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(c) default shall be made in the payment of any interest on any Loan or any
Fee or L/C Disbursement or any other amount (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of three
Business Days;
(d) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied or shall not be waived for a period of 20
days after written notice thereof from the Administrative Agent or any Lender to
the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
(other than the Obligations) in a principal amount in excess of $5,000,000, when
and as the same shall become due and payable, or (ii) fail to observe or perform
any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of Holdings, the Borrower or any Subsidiary, or of a substantial part of
the property or assets of Holdings, the Borrower or a Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of the property or assets of Holdings, the
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
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(i) one or more judgments for the payment of money in an aggregate amount
in excess of $5,000,000 shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of Holdings, the Borrower or any Subsidiary to enforce any
such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other such ERISA Events, could reasonably
be expected to result in liability of the Borrower and its ERISA Affiliates in
an aggregate amount exceeding $1,000,000;
(k) any security interest purported to be created by the Pledge Agreement
shall cease to be, or shall be asserted by the Borrower or any other Loan Party
not to be, a valid, perfected, first priority (except as otherwise expressly
provided in this Agreement or the Pledge Agreement) security interest in the
securities, covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates representing securities pledged under the
Pledge Agreement;
(l) any of the Obligations shall cease to constitute "Senior Indebtedness"
under and as defined in either Senior Subordinated Note Indenture or under the
indenture or similar agreement governing the issuance of Indebtedness
constituting Permitted Junior Capital in an aggregate principal amount in excess
of $5,000,000;
(m) there shall have occurred a Change in Control; or
(n) any Guarantee under the Guarantee Agreements for any reason shall cease
to be in full force and effect (other than in accordance with its terms), or any
Guarantor shall deny in writing that it has any further liability under its
Guarantee Agreements (other than as a result of the discharge of such Guarantor
in accordance with the terms of the Loan Documents);
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to Holdings or the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes
of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases and supplements) with respect
to the Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Pledge Agreement.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other
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Loan Party of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. Each of the Agents may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents and the Issuing Bank, on
demand, in the amount of its pro rata share (based on the aggregate amount of
its outstanding Revolving Credit Commitment hereunder (or, if the Revolving
Credit Commitments have terminated, based on the aggregate amount of its
outstanding Loans hereunder)) of any reasonable expenses incurred for the
benefit of the Lenders by the Agents or the Issuing Bank, as the case may be,
including reasonable counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Borrower and (b) to indemnify and hold harmless each Agent,
the Issuing Bank and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, and reasonable expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against it in its
capacity as Agent or Issuing Bank or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower or any other
Loan Party, provided that no Lender shall be liable to an Agent or any such
other indemnified person for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and nonappealable
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judgment to have resulted from the gross negligence or wilful misconduct of such
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder. Each of the parties hereto
acknowledge and agrees that neither the Syndication Agent nor the Documentation
Agent shall have any duties, responsibilities, obligations or liabilities, as
such, hereunder or under the other Loan Documents.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 00 Xxxxxxx Xxxx Xxxx,
Xxxxx Xxxxxxxx, Xxxxx 00000, Attention of Xxxxxxx Xxxxx (Telecopy No. (207)
761-3415) and Xxxxxx Xxxxx (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to Credit Suisse First Boston,
Eleven Madison Avenue, New York, New York 10010, Attention of Agency
Administration (Telecopy No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
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Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.13, 2.15, 2.19 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, Holdings and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrower, Holdings, the Administrative Agent,
the Issuing Bank or the Lenders that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of such Lender, (x) the Borrower, the Administrative
Agent, the Issuing Bank and the Swingline Lender must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed); provided, however, that the consent of the Borrower shall not be
required to any such assignment during the continuance of any Event of Default
described in subsection (g) or (h) of Article VII and (y) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 (or, if
less, the entire remaining amount of such Lender's Commitment) or such lesser
amount as the Borrower and the Administrative Agent may from time to time agree
(such agreement to be conclusively evidenced by the execution of the related
Assignment and Acceptance), (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together (except in the case of an assignment to an Affiliate or a Related Fund)
with a processing and recordation fee of $3,500 and (iii) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement and
(B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining
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portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees
accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Revolving Credit Commitment, and the outstanding balances of its Revolving
Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05 or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a 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 pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the
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assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and, if
required, the written consent of the Borrower, the Swingline Lender, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders, the Swingline Lender and the Issuing Bank. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.13, 2.15 and 2.19 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
increasing or extending the Commitments or releasing any Guarantor or all or any
substantial part of the Collateral (except as set forth in Section 9.18)).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender or in support
of obligations owed by such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
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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. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefore,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of 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 of any surety, guarantee or
credit or liquidity enhancement to such SPC.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(k) In the event that S&P, Xxxxx'x, and Xxxxxxxx'x BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Revolving Credit Lender, downgrade the long-term certificate of
deposit ratings of such Lender, and the resulting ratings shall be below BBB-,
Baa3 and C (or BB, in the case of a Lender that is an insurance company (or B,
in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then the Issuing Bank shall have the right, but not the obligation,
at its own expense, upon notice to such Lender and the Administrative Agent, to
replace (or to request the Borrower to use its reasonable efforts to replace)
such Lender with an assignee (in accordance with and subject to the restrictions
contained in paragraph (b) above), and such Lender hereby agrees to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations in
respect of its Revolving Credit Commitment to such assignee; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) the Issuing Bank or such assignee,
as the case may be, shall pay to such Lender in immediately available funds on
the date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Swingline Lender and the Issuing
Bank in connection with the syndication of the credit facilities provided for
herein and the preparation and administration of this Agreement and
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the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated) or incurred by the
Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or Letters of
Credit issued hereunder, including the fees, charges and disbursements of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent and the Collateral
Agent, and, in connection with any such enforcement or protection, the fees,
charges and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to indemnify
the Administrative Agent, the Collateral Agent, each Lender and the Issuing
Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, trustees, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials on any property owned or operated by
the Borrower or any of the Subsidiaries, or any Environmental Claim related in
any way to the Borrower or the Subsidiaries; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor accompanied by reasonable documentation with respect to any
reimbursement, indemnification or other amount requested.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the
obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
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SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower, Holdings and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or date for the payment of any interest on any Loan or any date for
reimbursement of an L/C Disbursement, or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan or L/C Disbursement,
without the prior written consent of each Lender affected thereby, (ii) increase
or extend the Commitment or decrease or extend the date for payment of the
Commitment Fees or L/C Participation Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.16, the provisions of Section 9.04(j), the provisions of this
Section 9.08, the definition of the term "Required Lenders" or release any
Guarantor (other than in connection with a transaction permitted hereunder) or
all or any substantial part of the Collateral (other than as set forth in
Section 9.18), without the prior written consent of each Lender, or (iv) amend
or modify the protections afforded to an SPC pursuant to the provisions of
Section 9.04(i) without the written consent of such SPC; provided further that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender, respectively.
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SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but
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all of which when taken together shall constitute a single contract, and shall
become effective as provided in Section 9.03. Delivery of an executed signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.16. Judgment Currency. (a) The obligations of the Borrower and
the other Loan Parties hereunder and under the other Loan Documents to make
payments in dollars (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment 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 or a Lender or the Issuing Bank of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such
Lender or the Issuing Bank under this Agreement or the other Loan Documents. If,
for the purpose of obtaining or enforcing judgment against the Borrower or any
other Loan Party or 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)
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determined, in each case, as of the date 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, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, 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 of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the rate of exchange for this Section, such
amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 9.17. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to a potential assignee or participant of such
Lender or any direct or indirect contractual counterparty in any swap agreement
relating to the Loans or such potential assignee's or participant's or
counterparty's advisors who need to know such Information (provided that any
such potential assignee or participant or counterparty shall, and shall use its
best efforts to cause its advisors to, keep confidential all such information on
the terms set forth in this Section 9.17, (c) to the extent requested by any
regulatory authority, (d) to the extent otherwise required by applicable laws
and regulations or by any subpoena or similar legal process, (e) in connection
with any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents or (f) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.17 or (ii) becomes available to the Administrative Agent, the
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than the Borrower or Holdings. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender based on any of the foregoing) that are received from the Borrower or
Holdings and related to the Borrower or Holdings, any shareholder of the
Borrower or Holdings or any employee, customer or supplier of the Borrower or
Holdings, other than any of the foregoing that were available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower or
Holdings, and which are in the case of Information provided after the date
hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.17 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
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SECTION 9.18. Release of Collateral. (a) Notwithstanding any other
provision of this Agreement or the Pledge Agreement, all Collateral held under
the Pledge Agreement shall be released from the Liens created thereunder, in
each case without representation, warranty or recourse of any nature, on a
Business Day specified by the Borrower (the "Release Date"), and the provisions
of Sections 5.11, 6.13 and 6.14 of this Agreement insofar as they relate to
Collateral shall cease to be of any force or effect, upon satisfaction of the
following conditions precedent:
(i) the Borrower shall have given written notice to the Administrative
Agent at least 30 days prior to the Release Date, specifying the proposed
Release Date;
(ii) as of the Release Date, the Borrower shall have obtained, and for
a period of not less than 90 consecutive days, maintained Investment Grade
Ratings;
(iii) no Default or Event of Default shall have occurred and be
continuing as of the Release Date; and
(iv) on the Release Date, the Collateral Agent shall have received a
certificate, dated the Release Date and executed on behalf of the Borrower
by the President, a Vice President or a Financial Officer of the Borrower,
confirming the satisfaction of the conditions set forth in clauses (ii) and
(iii) above;
PROVIDED, HOWEVER, that if on any date after the Collateral is released pursuant
to the provisions of this Section 9.18, the Index Debt is rated (x) below BBB-,
as determined by S&P, and (y) below Baa3, as determined by Xxxxx'x, then
Holdings and the Borrower shall be required to re-pledge the Collateral (and
such other capital stock or securities acquired after the Closing Date as would
have been required to have been pledged as Collateral on the Closing Date)
pursuant to a Pledge Agreement in the form of Exhibit F and execute and deliver
to the Collateral Agent all such other instruments and documents as the
Collateral Agent may reasonably request to effectuate, evidence or confirm such
pledge of the Collateral.
(b) Subject to the satisfaction of the conditions set forth in paragraph
(a) above, on or after the Release Date, the Lenders hereby expressly authorize
the Collateral Agent to, and the Collateral Agent hereby agrees to, deliver the
Pledged Securities (as defined in the Pledge Agreement) to the Borrower and to
execute and deliver to the Borrower all such instruments and documents as the
Borrower may reasonably request to effectuate, evidence or confirm the release
of Collateral provided for in this Section 9.18. Any execution and delivery of
documents pursuant to this Section 9.18 shall be without recourse to or warranty
by the Collateral Agent.
(c) Without limiting the provisions of Section 9.05, the Borrower shall
reimburse the Administrative Agent, the Collateral Agent and the Lenders upon
demand for all costs and expenses, including attorneys fees and disbursements
and the allocated costs and disbursements of internal legal counsel, incurred by
any of them in connection with any action contemplated by this Section 9.18.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXXXX SEMICONDUCTOR
CORPORATION,
by
------------------------------------
Name:
Title:
XXXXXXXXX SEMICONDUCTOR
INTERNATIONAL, INC.,
by
------------------------------------
Name:
Title:
85
CREDIT SUISSE FIRST BOSTON,
individually, and as Administrative Agent,
Collateral Agent, Swingline Lender and
an Issuing Bank,
by:
---------------------------------------
Name:
Title:
by:
---------------------------------------
Name:
Title:
86
FLEET NATIONAL BANK, individually and as
Syndication Agent
by
---------------------------------------
Name:
Title:
87
ABN AMRO BANK NV, individually and as
Documentation Agent
by
--------------------------------------
Name:
Title:
88
BANK OF SCOTLAND,
by
-------------------------------------
Name:
Title:
89
IBM CREDIT CORPORATION,
by
-------------------------------------
Name:
Title:
90
BANK ONE, NA,
by
-------------------------------------
Name:
Title:
91
BARCLAYS BANK PLC,
by
-------------------------------------
Name:
Title:
92
LLOYDS TSB BANK PLC,
by
------------------------------------
Name:
Title:
93
CITIZENS BANK,
by
-------------------------------------
Name:
Title:
